LEGAL PROCESS INTRODUCTION

Distinction b/w process & substance does not work as well in cases of - Access of justice - Nonsuit - Conflict of laws - Limitation periods Compare Rules of Professional Conduct: R. 4.01(1) (commentary) The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the clients case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law R. 4.01(2) (b) (supp.) When acting as an advocate, a lawyer shall not knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable(duty to court) Purpose of Civil Justice System - Behaviour modification (ADR) - Conflict resolution - Lawyers business - Truth/justice seeking - Maintaining/creating relationships Basic Steps in Civil Process (see Claim Flowchart, chart at casebook pp. 102-103) 1. Preliminary Issues timing (limitation periods), parties (multi?), costs 2. Pleadings Purpose (form skeleton of the case, framing of dispute, and communication with the other side), include (statement of claim, statement of defence etc.) 3. Process Management and DR includes (case management R. 21, 27; ADR) 4. Discovery formal evidence gather process, types (written and oral discovery), purpose (evidence gathering, theory testing) 5. Trial and Appeals adversarial, conclusion of process Basic constitutional structure of DR process 1. Const. Act, 1867, s. 92(14) each province makes its own rules of civil procedure 2. Courts of Justice Act (& Regs) dictates procedure in ON 3. Const. Act, 1867, s. 101 Fed gov can create fed crts

2 4. Const. Act, 1867, s. 96 Fed gov appoints fed judges and all superior crt judges across provinces (ensure uniformity, ensures that no regional interest dominates), inferior crt judges appointed locally. Basic levels of Canadian courts (see Court Diagram) Const. Act, 1867, ss. 92(14) & 101 (casebook, p. 24) Ontario system Const. Act, 1867, ss. 92(14) & 101 (casebook, p. 24) Courts of Justice Act, 1990 Crt of ON 2 branches: Superior Crt of Justice (Fed judges) & ON Crt of Justice (Prov judges) Superior Crt of J Formal Division: - Family Crt (in some jurisdictions) - Divisional Crt (internal crt of appeal, doesnt exist in all jurisdictions) - Small CC - Masters DR officers appointed by prov make final/intermediate decisions, deal w/ motions mostly - Deals with crim matters as well Informal Division: - Commercial List in TO corporate cases decided by judges w/ expertise in commercial matters Crt of Appeal ON appeals as of right and as of leave Const. Act, 1867, s. 101 provides for SCC Federal courts Const. Act, 1867, ss. 91 & 92 fed jurisdiction - Deal with IP matters as well - Trial Div, Appeal Div, Tax Crt, Military Crt Administrative tribunals - Deals with admin law - Appeals from Fed tribunals go to Fed Crt - Appeals from Prov tribunals go to Crt of ON ADR separate, now in crt process b/c of mandatory mediation How would you advise your client? - Does the law offer a remedy, which area of law (Ks, Torts etc.) - Legal Issues Parties (P, D, multiple or single, possible consolidation of claims) Where to bring the case? (which jurisdiction, which crt) How is the case going to be framed? (pleadings, evidence docs and witnesses)

3 Costs Limitation periods Advice re remedies - Non-legal Issues what the client wants from the case, ADR? What factors do you need to consider for potential litigation? Limitations, Choice of Process, Res Judicata Limitation Periods Limitations Act, ss. 3-7, 10-11, 14-16, 19-22 Role tells us that theres a time limit in which to bring an action Policy Fairness for D (evidentiary concerns fading memories, malicious prosecution) Certainty (closure for parties, admin of justice) Economic efficiency (parties can arrange affairs, public money) Landscape familiar to parties Limitations Act (see Lim Act) - S. 4 basic lim period (2yrs) ?s of what is a claim, when do you become aware of cause of action, continuous or single act - S. 5 discovery conjunctive and reasonableness test - Exceptions s. 6 (minors), s. 7 (incapable persons established by evidence), s. 10 (assault and sexual assault) - S. 14 puts other side on notice so that you can avail lim period may use notice of claim rather than starting litigation, b/c injuries may manifest later (personal injury cases) D may use this to bring motion to strike claim - S. 15 final deadline for all claims (excluding exceptions) 15yrs - S. 16 certain claims exempts - S. 11 if ADR used 2yr period put on pause if it falls thru, clock restarts - S. 22 cant K out of Act - S. 21 cant add parties to existing case simply to extend lim period Exception for s. 15 allows claim if someone did it willfully Choice of Process How to start a case in ON? Rules of Civil Procedure What process? R. 14 originating process (Defns) R. 14.02 every proceeding is an action unless stated otherwise in act start w/ statement of claim used for contested facts R. 14.03 (3) if using notice of claim (which stops running of lim period) have 30 days to file statement of claim R. 14.05 exception to 14.02 application no contested facts R. 14.08 statement of claim served w/n 6mo after it is issued (limitation period)

2 other processes: R. 76 simplified proceedings for cases w/n $50K (?s is it real justice, does it ghetto-ize small cases) Courts of Justice Act ss. 22-23 small claims if less than $10K Advising client - Lim periods - What process to use action v application Case against trustee by beneficiary re will proceed by application Constitutional challenge proceed by action Res Judicata - thing or matter settled by judgment (Blacks Law Dictionary) - Cant bring same action twice - Threshold have you sued the person on these facts before? - Form of estoppel equitable principle Cause of action estoppel cant bring the whole cause of action Issue estoppel cant bring issue in case already decided - Danyluk: best foot forward / only entitled to one bite at the cherry provides closure to parties - difference b/w res judicata and stare decisis (abide by decided cases - Blacks Law Dictionary) Capacity & Standing; Parties & Joinder Capacity - who can litigate/ be a party to the proceeding? - most individuals have capacity adults, legal persons (partnerships & sole proprietorships r. 8, and corporations) - certain individuals dont have capacity parties under disability (r. 7) disability includes minors, mental incompetents, absentees (r. 1.03 (1)) all require litigation guardian (r. 7) Standing - person should have sufficiently close connection to harm to bring claim (does the person have a right or remedy in law) - 2 types Private interest standing direct interest in proceeding Public interest standing Canadian Counsel of Churches Refugees affected by Immigration Act counsel brought charter litigation on their behalf b/c couldnt represent themselves AG brought motion (r. 21 determination of issue before trial) to strike claim on basis of lack of standing

5 Example of gatekeeper function (access to justice) Factors considered competing interests, scarce judicial resources (efficiency), avoid busybodies getting involved, avoid insulation of gov action, existence of private actors capable of challenging litigation 3 step test serious issue raised as to invalidity of legislation, genuine interest, better (reasonable & effective) way to resolve issue Case fell thru at last stage Public interest standing v Intervenor status Intervenor has interest in outcome & unique expertise (enlighten crt on public interest consequences) 2 types (r.13) Party (r. 13.01) on motion test (r. 13.01(1)a-c) interest in subject matter of proceeding, will be adversely affected, ? of law/fact in common w/ one of the parties, negative affects of delay and prejudice due to intervention (r. 13.01 (2)) Non-party (r. 13.02) friend of court helps by way of argument 2 sub-types On motion traditional intervenor eg. Canadian Civil Liberties Association Thru invitation of judge amicus curiae

Parties - R. 14.06 parties named in title of proceedings Joinder (compare class actions) - R. 5 getting together all the ppl involved in case - Court of Justice Act s. 138 avoids multiple claims, efficiency, cost effectiveness - Crt has broad power - 2 types Joinder of Claims (r. 5.01) Party asserts more than one cause of action in pleading Stevens (BC) K and bad faith claims in one pleading crt said claims shouldnt be joined (but in ON would have been joined) Joinder of Parties (r. 5.02) 1/more P can sue 1/more D in same proceeding (have to be represented by same lawyer Sayle - trailer forced into ditch by negligent driving - proceeding against driver, owner of car, tow owner who negligently towed it out of ditch - application by tow owner to force P to elect one D - crt allowed P to proceed against all 3 Pryshlack - P vendor sued D purchaser (for failure to complete transaction) and Ps lawyer (for breach of K/negligence) - Motion by Ps lawyer for order striking out pleading or staying action on grounds that pleadings disclose no cause of action - Crt dismissed action against Ps lawyer w/o prejudice to bringing it again b/c need some common factual or legal ground to join

6 R. 5.03 all the ppl needed to enable proper adjudication of the case should be joined as parties Pleadings: Purpose, Form, Content, Adequacy, Variance, etc. Pleadings - R. 25 collection of allegations & positions of parties - Imp b/c putting best foot fwd - R. 25.01 docs in pleading statement of claim, statement of defence, reply, counterclaim, crossclaim, 3rd party claim - Purpose of pleadings Define issues b/w parties, frames playing field Notice Record wrt lim periods, res judicata etc Defines strategy Persuade judge/other party (to settle) Form of pleadings (r. 25.02) Separate paras (R. 14.06 title of proceedings, parties), crt record no., lawyer, language Statement of Claim Contents (Form 14A) R. 14.08 delivery w/n 6mo of issuance R. 14.06 identify parties Nature of claim R. 25.06 (1) have only material facts R. 25.06 (2) do not plead law R. 25.06 (9) state relief sought (Whiten) R. 25.06 (3) condition precedent need not be plead R. 25.06 (4) inconsistent pleadings allowed when pleading in alternative Statement of Defence Contents R. 18.01 delivery w/n 20 days of getting statement of claim if in ON, 40 days for CAN or US, 60 days elsewhere Require material facts 4 elements: Admissions (R. 27.07 (1)) admit things that you agree w/ - otherwise will get stung w/ costs Denials (R. 27.07 (2)) No knowledge of certain facts Affirmative defence (R. 27.07 (4)) launch your side of the case - Reply R. 25.08 reply if proving diff version of case from D if not covered in SoClaim R. 25.09 if reply given deemed to admit all points not refuted

7 Service (r. 25.03) who is served & personal service (and exceptions) Timing for delivery (r. 25.04) refers back to rules about when SoClaim and SoDefence needs to be delivered Closing pleadings (r. 25.05) when all pleadings are in Pleading Issues - If pleadings not clear 3 options Let them hang themselves at trial Whiten SCC case about burnt house insurance co. makes arson case P didnt have material facts relating to punitive damages crt might have kicked out case or allowed for amendments if insurance co. would have raised it earlier, but not fair at this stage Motion for Particulars (r. 25.10) Copland motion by P to dismiss case and in alternative gain details of case not enough details from D therefore unable to respond allowed to get particulars R. 21 motion for dismissal b/c no cause of action disclosed Adequacy Requirement pleadings must disclose cause of action Notice aspect of pleadings parties are limited at trial to what theyve pleaded (subject to amendment power (r. 26) MacDonald Options if pleadings are inadequate: Demand notice for particulars (r.25.10) Amendment Motion to strike pleading (r. 25.11) R. 21 determination of issues before trial Amendment R. 26.01 general power of crt to amend subject to ?s of prejudice that could not be compensated by costs MacDonald P building contractor suing lawyer for negligence b/c didnt file insurance claim w/n lim period client precluded from lawsuit Lawyer says P wouldnt have won anyway Crt says purpose of pleading is to outline issues, evidence required Imp for pleadings to contain all material facts so that other party not taken by surprise need details D lawyer cannot use this defence w/o amendment Amendment is w/n crts discretionary power only use it do justice b/w parties and should not prejudice Ps case Amendment allowed on terms P allowed right of reply and costs against D

8 R. 26.02 can amend w/o leave if pleadings not closed, w/ consent of all parties, w/ leave of court R. 26.06 Amendment at trial May not be allowed to add someone after expiration of lim period ? of incompensable prejudice (Limitations Act s. 21) Motion to Strike Pleading r. 21.01 (1) (b) party can bring a motion to strike pleading r. 25.11 crt may strike out if it prejudices/delays trial, is frivolous, is an abuse of process Copland R. 25.06 (1) requires a level of material facts if this level not reached, remedy is not motion for particulars but motion to strike out pleadings Dawson Motion to strike test for r. 21, distinguishes b/w r. 20 & 21 Jane Doe Sexual assault victim brought claim against police for failing to prevent her rape Novel cause of action D wanted to dismiss it b/c disclosed no cause of action Crt didnt allow dismissal Counterclaims, Third-party claims, Cross-claims, Consolidation r. 5.02 Joinder of parties ? of Efficiency effectiveness lim period See Muli-party Diagram Counterclaims (r. 27) - D becomes P by counterclaim & P becomes D by counterclaim - R. 27.01 - D brings claim against P, D may join any other person who may be party to counterclaim - R. 27.02 included in the statement of defence - Lid Brokerage P sues Ds for for damages D applies for leave to bring counterclaim against P and 7 other ppl who are not parties Courts of Justice Act s. 138 avoiding multiplicity of proceedings R. 1.04(1) rules construed to secure justice, expediency, costLimitations Act s. 21 not allowed to add someone just to extend Compare class actions

9 No leave to counterclaim is required, but b/c lim period passed need leave (Limitations Act s. 21) Requirement to allow counterclaim doesnt have to be directly related to case, but somewhat related so main counterclaim can be made out Teledata Counterclaim is not meant to just shoot a missile back at P or complaining against Ps claim

Third Party Claims (r. 29) Claim against a 3rd party R. 29.01 may be brought against any person not party to action & whos liable to D for part of Ps claim, independent claim that relates to Ps claim, who should be bound by decision in the Ps claim P cant obtain judgment directly from 3rd party exception compulsory counterclaim Policy Daniel P Ks with D to buy widgets & w/ 3rd party to install widgets widget blows up P sues D D sues 3rd party P moves to strike out 3rd party claim trial judge allows it Appeal judge says 3rd party claim imp here b/c P elected not to sue 3rd party who might have reasonably been responsible for some damage Carswell Ps property flooded b/c of blasting ops in adjacent property sues insurance co. insurance co. brings 3rd party claim against city Crt allowed adding 3rd party b/c same claim b/w all 3, D has right to discovery against city w/h would not occur but for 3rd party claim, and insurance co. can only get $ from city if D loses to P. Hannah P damages due to blasting ops in adjacent property sues insurance co. D brings pre-trial motion to adjourn trial and have P add blasting co. as D Crt held that Ps right to choose D Insurance co. could have brought in blasting co. as 3rd party but chose not to do so Avoid multiplicity of actions Prejudice to P if trial adjourned just 4 days before commencement (unfair and not in best interests of admin of justice) Negligence Act tortfeasors jointly and severally liable to P P should add all Ds b/c otherwise if P sues D1 & D1 sues D2 (3rd party claim) and D2 loses, P gets nothing from D1. r. 29.11 fourth party and subsequent claims 3rd party can bring claim against fourth party not already part of 3rd party claim Cross-claims (r. 28) Claim among co-Ds eg. P sues D1 and D2, D1 in turn sues D2

10 Negligence Act

Consolidation (r. 6) - Crt has power to consolidate cases if they could have been joined but werent - R. 6.01 even if not appropriate to consolidate crt can order that cases tried together or consecutively CLASS PROCEEDINGS See Class Proceeding Diagram Purpose of Class Proceedings - Access to justice - Judicial economy - Behaviour modification Western Canadian Shopping Centres Class actions better than multiplicity of individual suits b/c of the 3 reasons above Hollick Is there an identifiable class, whether claims raise common issues, to what extent should class rep be allowed to adduce evidence in support of certification Bottom line would class action be the preferable means of resolution (judicial economy, access to justice, behaviour modification) Joinder of Parties v Class Actions No max no. of parties in either Which to proceed under? see which of the options promotes the 3 principles in class action doesnt then proceed under joinder Class Proceedings - Allows for efficient running of claim that would otherwise take up too many resources - Class Proceedings Act should be construed generously Hollick - WCSC, Hollick and Rumley are the cornerstones of Canadian class actions jurisprudence - Limitation periods Limitations Act s. 20 does not affect lim periods in any other act Class Proceedings Act s. 28 lim period paused by commencement of class proceeding and resumes again when (member opts out, excluded, decertification, class proceeding dismissed w/o adjudication, class proceeding abandoned or discontinued, class proceeding is settled w/ crt approval) Parties & class members Class members are not parties Diff b/w multiparty lawsuits and class actions is that in multiparty cases all the people are parties, in class actions only rep P is a party saves cost for other people who may not be able to afford it, access to justice, avoid multiple proceedings of same issue

11 S. 2 1/more members of class can begin proceeding on behalf of class by bringing motion S. 14 to ensure fair and adequate representation crt may allow 1/more members to participate participation can be on any terms including costs as crt sees fit S. 15 (2) can bring motion to discover more than 1 class members S. 5 (1) (b) needs to be a representative class or 2/more persons S. 2 (2) person who starts the class action makes a motion to certify action as class action and himself as rep P (jurisdictional issues can arise if several ppl doing same thing in diff regions) S. 5 (2) if crt fees that there is need to protect interests of a subclass, will appoint rep P for sub-class who (fairly and adequately represent subclass, has plan for advancing sub-class interests and informing members, has not conflict of interest) S. 3 of CPA & r. 12.05 (2) of RCP D to 2/more proceedings at any stage can move to have them made into class action and appointing representative P S. 4 of CPA & r. 12.07 of RCP any party to proceedings against 2/more D may bring motion to certify proceedings as class action and appointing rep D R. 12.07 & 12.08 (unincorporated association or trade union) special rep proceedings R. 12.02 title of proceedings (Proceedings under CPA) R. 12 remainder rule imp b/c links CPA to RCP, shows what pleadings should look like, keeps alive rep actions that may not fit under CPA Certification Process Most cases fought at this stage b/c claims in class action not usually viable on their own Ds strategy to prevent certification s. 5 (5) Certification not a ruling on the merits of the case (Hollick certification stage decidedly not a test of the merits of the action rather focuses on form of action - ? Is not whether the claim likely to succeed but whether suit is appropriately prosecuted as class action) - in reality it is used by Ps to exact a settlement (often determines if any claim at all will actually proceed) s. 2 (2) Motion to certify class proceeding and appoint rep P (Hollick upon motion for certification rep P and D may file affidavits setting out material facts on w/h they intend to rely) s. 2 (3) motion to certify made after defence has/should have been delivered, or w/ leave of crt 5 (1) (a) - (e) Test of certification of proceedings pleadings disclose a cause of action, identifiable class, raise common issues, class action would be preferable mode of resolution, there is rep P/D who would (fairly and adequately represent interests of class, has a workable method of advancing proceedings on behalf of class & notifying class, not in conflict of I with members) tips balance in favour of class actions Identifiable class objective to ensure that there is such a class if not would be difficult to bring action fwd

12 Common issues not have to have same claim just common enough to make sense that it proceeds thru class action (Hollick) Class action preferable determined by reference to (judicial economy, access to justice, behaviour modifications) Usually class proceedings fall apart at certification or discovery s. 8 of CPA & r. 12.05 (2) of RCP Contents of certification order (describe class, state names of rep parties, state nature of claims/defences, state relief sought, common issues, manner of opting out and deadline for this) ss. 17 22 Notice of certification s. 7 If motion fails, can proceed as multiparty action Appeals of certification motions s. 30 (1) of CPA & r. 12.06 of RCP appeal from refusal to certify/de-certification order goes to Div Crt s. 30 (2) appeal from certifying order Div Crt w/ leave from Superior CoJ Hollick Keele Valley Landfill pvtly owned city of TO bought it allowed all residential/commercial waste (non-hazardous) Ministry of Environment approved it & provided small claims fund for redress city also operated complaint line Hollick complained brought together ppl in area for class action Certification judge certified it Div Crt overturned it CofA rejected appeal Discloses cause of action low threshold in order to fail at this stage must be no cause of action Identifiable class easy to establish area and time of cause of incident (Hollick established ppl w/n certain area b/w certain times effected) Common issue have to frame issues so common enough to establish liability for all parties can use sub-classes to address particular issues relating to specific individuals in this case established that pollution causing harm to residents Class action preferable better than multi-party claim for resolving common issues area where crt can exercise discretion Crt established 3 part test (this is where Hollick failed): Judicial Economy look at common issue in light of whole case how will it advance claims of all ppl involved (difficult to determine extent to w/h ppl suffered damage), difficult to say resolutn of common issue will establish damages b/c damages vary b/w parties crt viewed issue of damages as more imp than liability despite that liability bigger part of case Access to justice crt took fact-specific approach to this crt didnt see that access to justice furthered b/c no one had made claims against the small claims fund or help line these mechanism had already been put in place by gov for ppl of the community

13 Behaviour modification other avenues present ie help line, small claims fund Rep P crt didnt go into this Despite concluding that Act should be read generously, crt failed to do so Should we try to restrict use of class actions? (compare US) Opting out After certification, anyone who fits description deemed to be in (even if they dont know about it) makes sense in terms of policy b/c hard to have large no. of ppl opt in ss. 9, 17(6)(b), 27(2) any class member can opt out once opted out, cant come back b/c of res judicata once lim period is over need reasons to get out 28(1)(a) 2 yr lim period on a cause of action is paused once class action stats but resumes if member opts out (is it fair if you opt out by beginning separate lawsuit but later find out about class action and want to be part of it) Conduct of Proceedings Crt has lot of discretion here (e.g. ss. 11-14, 23, 34-37) s. 35 Rules apply to class actions Discovery s. 15 (1) parties entitled to discovery (like other cases) s. 15 (2) class members can be discovered w/ leave s. 15 (3) factors crt looks at to grant leave All other discovery rules apply R. 12.03 RCP some discovery rules dont apply Judgments and Distributions ss. 24-27, R. 12.05 crt can make various orders settlement usually distributed on % basis or lottery Discontinuance, Abandonment, Settlement (s. 29) Settlement in class actions need crt approval b/c binding many ppl not part of action to decision Most class actions settle

14 Hollick settled before they proceeded thru certification motion crt has discretion to do this Gariepy v. Shell Oil Crt talked abt examining settlement & certifying class action issues of protecting class members b/c potential of conflict of I b/w class & counsel collusion w/ D possible when contingency fees involved Talked abt proposed class & sub-class shows how classes get framed Proposed agreement/settlement List of factors on how to determine what is fair & reasonable for settlement (likelihood of recovery, amt/nature of discovery evidence, settlement terms & conditions, experience of counsel, future expense & duration of litigation, recommendatn of neutral parties, no. of objectors & nature of objections, presence of good faith & absence of collusion) Crt persuaded by Sparling case crt in favour of settlement Should crt look at best interests of class or protect public interest generally public interest involved b/c not a regular A v B case, behaviour modification on other hand floodgates might open, public v D looks like crim case Appeals Diff appeal routes for class actions if D s. 30, r. 12.06 significant s. 30(3)-(11), R. 12.06 To court of appeal / divisional court; with / without leave Cost/fees Parties on the line for costs and fees are rep P and D like any other case Exceptions if public interest test case (s. 31) P not responsible for costs OR if P gets disbursements from fund (fund can cover costs & fees) Having rep P liable discourages class actions B/c of judicial efficiency run by contingency fee (lawyers would not take case otherwise) s. 32 (2) Counsel fees need to be approved by crt (b/c need to be fair to class as whole) Service, Challenging Jurisdiction and Forum Service

15 Personal service is the norm Substituted service can happen Time for service & extensions Policy balance need for adequate notice w/ ability to ctrl evasive Ds if adequate notice even though improper service it will not be defeated Rupertsland Doc served to solicitor (wife of sole director) of Rupersland although not authorized to do so she accepted service and gave to husband Crt said if they got notice substance trumps over form crt found there was notice For personal service to be effected process need not be delivered directly to intended recipient as long as party actually does receive process into possession Service of docs in ON Basic ? is the doc an originating process (eg. statement of claim) x-claim is not originating If yes - then personal service is required (R. 16.01(1), 16.02), or alternative to personal service (R. 16.03) If no, then servicebut not personal serviceis required (R. 16.01(3)-(4)) Where it appears to court that service is impractical, then substitute service / dispensing with service may be ordered (R. 16.04) Process servers used by big firms they serve and sign affidavit that they did it Jurisdiction Authority of a crt to hear and resolve case 3 considerations geography (r. 17 territorial limits), subject matter, amt Subject matter jurisdiction Does the crt have subject matter jurisdiction over the case? Some matters can only be brought in certain crts s. 11 (2) CJA superior crt of justices powers s. 92 of Constitution Act each province makes its own rules re property, civil rights, pvt law 80 Wellesley Agreement to sell property agreement assigned prior to sale sale falls through agreement registered against property should deposit be refunded Judge found he didnt have jurisdiction to require Ds to look for alt security for satisfaction of their claim Superior crt has general jurisdiction w/h is unlimited & unrestricted in substantive law in civil matters Territorial jurisdiction

16 Can we serve ppl/parties outside ON Threshold ? does claim fall under r. 17.02 r. 17.02 party to proceeding may be served w/o crt order outside ont w/ originating process (or notice of reference) in certain claims r. 17.03 service w/ leave of crt In any event (rr. 17.02 or 17.03) crt must have real and substantial connection (jurisdiction) Morguard (SCC) SCC held that principles of order and fairness required limits on reach of provincial jurisdiction on Ds in another prov Test should be real and substantial connection b/w out of prov Ds and in prov action Hunt (SCC) SCC made it clear that Morguard principles are constitutional imperative applying to prov legislatures Muscutt (ONCA) P injured in Alberta moved back home to ON so mom could take care commenced action in ON Judge found real and substantial connection, found ON as convenient forum r. 17.02 (h) allows for service out of jurisdiction for claim where damage sustained in ON arising from tort committed elsewhere Crt found that fairness requires a flexible test P in ON only b/c of injuries + D was backed by insurers 3 ways in which jurisdiction can be asserted against out of prov D presence-based jurisdiction, consent-based jurisdiction, assumed jurisdiction Crt found that in applying real and substantial connection test should consider following factors (connection b/w forum and Ps claim, connection b/w forum and D, unfairness to D, unfairness to P, involvement of other parties, crts willingness to recognize and enforce extra-provincial judgment, whether case is interprov or international, comity and stds of jurisdiction prevailing elsewhere) Policy - balance regulation of foreign behaviour with impact of globalization on domestic courts, etc. r. 17.04 additional requirements for service outside ON If served w/o leave of crt disclose facts and refer to sections of r. 17.02 relied in support of service If w/ leave of crt serve originating process w/ order of crt granting leave r. 17.5 manner of service outside ON

17 Challenging Jurisdiction r. 17.06 (1) (a) motion to set aside service outside ON (service ex juris) s. 106 CJA- crt has power to stay proceedings on such terms as considered just r. 17.06 (1) (b) motion to stay proceedings permanent pause button can never bring it back s. 17.06 (2) (a) service outside ON not authorized technical breach s. 17.06 (2) (b) asking that order granting leave to serve outside should be set aside s. 17.06 (2) (c) forum non conveniens ON not a convenient forum s. 21.01 (3) (a) D can move to have action stayed or dismissed b/c crt has no jurisdiction over subject matter Process Management, Early Dispute Resolution and Settlement Case Management - Includes case mgmt, conference, settlement - Shifts from adversarial system to managed system efficient - Sets time limits - r. 77 regime for parties & system to make use of case mgmt usually refers to cases started in TO, Ottawa, Windsor but reflect crts mindset Permissive and flexible 3 main events case conference, settlement conference, trial mgmt conference Case and trial mgmt conferences permissive, settlement conference mandatory - Case Conference to make sure parties comply w/ timelines and orders of regime - Settlement Conference Forces parties to get together after discovery Purpose limiting issues, opportunity to settle Diff from pre-discovery mandatory settlement - Trial Mgmt conference focused on mgmt of trial - r. 78 took TO cases out of r. 77 & subject to practice direction same as r. 77 but less restrictive/detailed can be sent back to r. 77 in some exceptions (eg. if parties agree, if 1 party is screwing) Pretrial conference (r. 50) - Part of case mgmt regime even though not under rr. 77 & 78 - Before trial parties meet in front of judge and show that theyre ready to go ADR - any settlement of dispute b4 it goes to trial

18 DR continuum (Negotiation -> Mediation -> Adjudication [crt, arbitration]) increasing ctrl from left to right r. 24.1 mandatory mediation everyone has to go to it requires confidentiality r. 77 version of r. 24.1 happens early r. 78 version of r. 24.1 happens later not same as confidentiality Info that cant be compelled in crt ie any convo in settlement are

Privilege priviledged

Confidentiality in Settlement - Will come again under discovery and privilege - Purpose Process designed to facilitate frank discussion and disclosure with a view to settlement: requires candour Pursue interests, not aggravate positions, etc. Exchange of information may not be same as exchange of evidence at trial For mediator to appear neutral, parties must have confidence in confidentiality - Scope of confidentiality In private ADR, can contract for confidentiality r. 24.1.14 protection same as in without prejudice communications r. 50.03 no disclosure to crt of any statement made at pre-trial conference Settlement privilege (without prejudice communications) and also in context of discovery - Privilege surrounds settlement offers, discussions, etc. - Gruenke All relevant and probative evidence admissible unless excluding it serves some judicial or public policy that outweighs strong public policy of admissibility On this basis, a limited range of confidential communication is treated as privileged and inadmissible exceptions settlement privilege, litigation priv, solicitor/client priv Sopinka et al If not codified (as in r. 24.1.14) need 3 requirements Litigious dispute in existence or within contemplation Communication made with express or implied intention that it would not be disclosed in event of breakdown of negotiation Purpose must be to effect settlement Settlement Regime (r. 49) Almost all cases settle before trial Settlement encouraged in civil justice system r. 2.02 RPC codes of conduct recommend it encouraged by parties trends in ADR

19 encouraged by crts encouraged by statutes/rules (s. 138 CJA, rr. 1.04, 24.1, 77.14, 78.10, 49) Process Can always settle but settlements under R. 49 create costs consequences r. 49.03 Offer must be made at least 7 days before trial to take benefit of costs consequences r. 49.05 Assumed to be without prejudice r. 49.10 cost consequences Parties can be exposed to increased liability for costs if they refuse to take part in pre-trial settlement & to seriously consider a reasonable offer o Reasonability is inferred by fact that offer is equal or better than what party gets thru trial process Discretion of crt Despite time constraints Crt can take into account any offer to settle made in writing, date of offer and terms of offer Niagara K dispute P made offer to settle D turned it down trial judge used her discretion not to penalize D overturned on appeal Offer was close to judgment and 2 mo b/w time of offer and time of trial Rules strict that crt has to use cost rule unless special circumstances We costs awarded get partial indemnity costs (party-party costs) 50% of actual costs Get full costs for solicitor costs DISCOVERY and PRIVILEGE Discovery Done diff in diff jurisdictions r. 1.03 (1) Defn Purpose Gathering evidence for trial, define issues, providing notice to other side (fairness), settlement, pinning down witnesses, understanding strength of opposing sides case 2 parts documentary discovery (r. 30) & oral discovery (r. 31) r. 34 out of crt examination for discovery Documentary Discovery (r. 30) - r. 30.02 every doc relating to any matter at issue - Grossman broad disclosure should encourage disclosure not frustrate it - Kiewit Many docs produced, therefore werent stonewalling as in Grossman Crt said discovery not fishing expedition Right to reasonable preparation - What counts as a doc is defined broadly (eg. hardware, e-mails)

20 No discovery for applications, just actions Only parties involved in discovery Anything you have ctrl over can be discovered Rule says disclose not produce party does not have to look at it Cant use anything at trial that hasnt been disclosed Reasons not to disclose a doc b/c case may settle anyway Form Affidavit of Doc (sworn statement of fact) 3 schedules A, B, C A docs to be produced B docs to be disclosed not produced C docs not in partys possession/ctrl/pwr Wuraman Solid waste mgmt case Creative way of dealing w/ docs Dont have to give so much detail as to give away privilege Grossman System in the hands of lawyer ethics plays big role Non-parties r. 30.02 power of party witness not obliged to disclose (but can be subpoenaed by rules of evidence) r. 30.10 if non-party connected to party can be asked to disclose by bringing motion (eg. VISA w/h has records of transactions) rule narrower and less onerous than for parties test involved test doc is relevant to material issues in action, unfair to moving party to go to trial w/o it Woods says its narrower Stavros gives list of factors Irwin toy o ISP provider wasnt willing to give confidential info on ppl using services o Unfair for moving party to proceed w/o it o Balance b/w privacy & rights of parties Continuing Discovery (r. 30.07) If something changes after discovery having obligation to bring it up Ongoing affair Burke evidence of changed physical condition since injury didnt fulfill cont. discovery obligation so was stuck w/ original discovery evidence couldnt lead new evidence at trial Deemed Undertaking: (r. 30.1)

21 Undertaking to crt and person giving discovery that docs/evidence wont be used outside crt Purpose to encourage 3rd parties to come up w/ info Evidence gathered thru discovery limited to the piece of litigation before the crt McKenzie Childcare worker child died under care civil action against her Discovery but settlement Attorney G wants to used discovery for crim proceedings motions judge didnt give access BC CofA allowed discovery material to be used used crime exception SCC reversed b/c self-incrimination against Charter Why be truthful in civil case if know that it would result in crim conviction Broad remedial powers of crt (rr. 30.06, 30.08, 30.09) Prob if fail to produce/hide/manipulate docs Sanctions from law society (Prof Conduct) Crt may dismiss case, sent to case mgmt, sting w/ costs

Privilege (24.1) A lot of confidential info not privileged Narrowly defined 4 categories solicitor/client, litigation, settlement, catch-all (residual category) Solicitor client privilege Any comm b/w solicitor & client regardless of imp to case Exceptions protection of innocent accused, public safety & disclose crim comm. Belongs to client not lawyer Prtichard Includes in-house counsel & gov lawyers Ppl should be able to have candid discussion w/ solicitor McCarthy Does not include corp client going to lawyer for business reasons Only covers legal advice - Litigation privilege Pilots Insurance Before contemplation of litigation it is not privilege Also called solicitors brief privilege notes, ?s, case strategy all privileged Time limited Notes made to self would have to be disclosed in affidavit of docs dont have to be produced Dominant purpose of doc is key Wheater not made for purpose of litigation therefore no lit privilege Blank gives history of lit privilege - Solicitor/client priv & lit priv can overlap

22 Settlement privilege Protects parties re disclosure made to settle case Catch-all rule Wigmore Test Should allow ppl to not bring everything into lit 4 part test balancing of factors o Comm must originate in confidence o Expectation of relationship to let it survive (eg. priest, spouse) o Relationship ought to be fostered o Balance injury to relationship b/c of disclosure v benefit to lit eg. A & M case (psychiatric issues) Basic idea all relevant info disclosed, all relevant non-priv info needs to be produced Under defamation extra privilege parliamentary privilege Truth is defence

Oral Discovery (r. 31) Discovery not usually done in writing b/c want to ensure credibility of witness only done if (expensive to bring person to crt try video conference before this, person dying, rebringing person to crt) Format r. 34 notice of examination ppl present are P, D, lawyers, crt reporter 3rd parties allowed Not open to public b/c of confidentiality deemed undertaking crt reporter takes transcript Who can be examined (r. 31.03) Any party to action (not application) adverse in interest Need crts approval for discovery a second time Cant discover co-Ps Examine individuals, corps, partnerships, gov Examining party in ON can select who to examine in a corp that person in corp obliged to inform themselves may examine another person if 1st person not informed Menses 2 Ds can be adverse in interest x-claim may be there so can discover them Rainbow justice requires that the CEO inform himself Who may be examined in class proceedings? D can only examine rep P w/ leave of crt can examine class member (s. 15 CPA) Scope of examination Any matter at issue

23 r. 31.06 cannot object to ?s on grounds that (its for info gathering, ? is like x-examination) Hearsay allowed in discovery b/c want to know as much info as possible will allow to track down other relevant evidence Forlady broad scope of discovery Nonparties not discoverable (r. 31.03) but r. 31.10 allows crt to do it if just reason to believe person has relevant info. (excludes experts) & examining party has no other means to get info. Carlton Condo balancing approach Stavros examine person Advisement for discovery ?s can get back to person if unsure how you want to answer it If client tells you not to disclose a relevant doc b/c it is evidence of his bad behaviour - Can say in your affidavit that youre considering docs & will give them later (if unsure that they should be disclosed or not) - Disclose it - Badger client about disclosing it - Quit - Cant question client on it on stand b/c misleading crt Ford Pinto For copies can put in affidavit the no. of copies dont have to produce all Use of examination at trial (r. 31.11) - Imp for x-examination - Uses Read in (admissions) can read it at beginning of trial OR do read in brief (prob judge may not read it) Impeachment Using prior inconsistent statement try to bring it out (when doing x-examination ? witness on it)

Motions, Interlocutory Relief Motions -

Can happen at any stage but usually come up when Issues of non-compliance of party w/ procedural rules raised Party seeking permission from crt to take step w/h requires crts authorization Party wishes to raise an issue before crt Party wants interim relief r. 37.01 can bring a motion by filing notice of motion

24 - r. 37.06 3 requirements precise relief sought, grounds to be argued, doc evidence (affidavit) - r. 37.10 motion record pleading - r. 39 evidence used in a motion - r. 4.06 affidavits - r. 39, r. 4.06 cant be a witness & lawyer in the same case - r. 37.02 can bring a motion before a judge or master (BUT masters cant hear certain motions, so may have to go to judge) if it says crt means judge or master - Can have ex parte motions but not common - Ethical issues Interlocutory relief (r. 40) - s. 101 of CJA gives crt jurisdiction to give interlocutory relief - Examples of basic interim relief interlocutory injunctions, interim preservation & recovery of property, certificate of pending litigation respecting real property - RJR MacDonald Interlocutory pending disposition of appeal Interim for a period of 1yr after disposition of appeal Interlocutory relief hybrid term used by crt to denote both - Interlocutory injunctions They are a form of equitable relief (fairness based, discretionary) balancing protecting parties v prejudicing claim 2 basic types prohibitive, mandatory (force party to do something) Can be permanent or temporary 2 types of temporary injunctions Interlocutory looking for relief until get a main hearing Interim just for any period of time Crts dont like giving interlocutory injunctions b/c giving relief b4 full hearing - RJR MacDonald basic test Tobacco co. applied for stay from compliance w/ new warning requiremtets Adopted 3 stage test Preliminary assessment made on merits of case to ensure that there is a serious ? to be tried (not frivolous) Determine if applicant would suffer irreparable harm (going out of business etc.) if application refused Assessment must be made as to which party would suffer greater harm from grant or refusal of remedy 2 exceptions to the general rule that judge should not engage in extensive review of merits o When result of motion will in effect amt to final determination of issue o When question of constitutionality present itself as ? of law alone In this case public interest carried the day

25 - r. 40.03 moving party undertakes to abide by damages awarded by crt if it determines granting the order has caused damage to responding party in the motion DISPOSITION WITHOUT TRIAL, ETC. Disposition w/o Trial - Includes settled cases - Council of Churches case disposition w/o trial - rr. 20, 21, 25 (11) Substantive Disposition w/o Trial - Motions to Strike, Stay & Dismissed Diff from summary judgment r. 21.01 (1) (a) determining a ? of law Nelles SCC said even if no ? of fact there may be ? of law looks like an application only diff is here action may have already started r. 21.01 (1) (b) strike out a pleading [ 25 (11) does the same] gives no threshold test all you do is look at statement of claim and accepting everything in it as true is the case made out (Dawson) dont need to look at evidence Hunt v Kerry high burden plain and obvious that it discloses no cause of action Strike out w/o prejudice or allow amendment if P/D is unrepresented or has bad lawyer r. 21.01 (3) (a) (d) for D action stayed These are drastic measures crts dont like to deny someone their day in crt When can this be done? r. 21.01 (1) (a) before trial r. 21.01 (1) (b) after pleading is served not after claim r. 21.01(3) after claim but not defence Why do this? (Nelles) Efficiency Cost Time Determination of pt of law Done on a motion before trial All or part of claim can be disposed off like this Jane Doe Novel claim r. 21 motion by D she successfully defended motion novelty does not defeat cause of action Joly Cant prove hes martian Frivolous & vexatious Judge says rules are for ppl

26 R. 21.02 do it promptly r. 21.01 (1) (a) & (b) dont use evidence only pleadings can use evidence if crt gives leave r. 21.01 (3) can use evidence r. 25 (1) silent on the issue of evidence wont work in front of judge though List both 21.01 (b) & 25 (11) in your motion Dawson Tax shelter structure that screwed up Contrasts 21 & 20 Crt says give most broad reading and dismiss only in clear and obvious cases 25 (11) speaks to pleadings not actions v 21.01 speaks to actions if many Ps use 25 (11) b/c cant dismiss whole action Options on how to dispose off action before trial - Settle - r. 21 motion - r. 20 motion (summary judgment) - r. 17.06 foreign D trying to stay & strike case b/c of (lack of jurisdiction, forum inconvenient) Summary Judgment (r. 20) - Judging case on merits - Motion done by affidavit evidence If evidence based on hearsay crt draws ve inference - Can do it for part of claim or whole claim - Both P and D can do it - Can be done after both pleadings framed OR just w/ statement of claim w/ leave - May not even need discovery - Strong discretion of crt not a permissive rule crt only does this in clearest of cases - r. 20.06 crt will fix costs if you lose motion - r. 20.09 applies to all claims x-claims, counterclaims - Dawson, Jane Doe law on summary judgment - Ungerman, Aguonic, Dawson r. 20 not meant to displace adversary system - Balancing concept of day in crt v frivolity - Rogers Put best foot fwd Motions judge will take hard look at evidence - Augonie, Ungerman if crt needs to access credibility (eg conflicting affidavits) will not do summary judgment - r. 39 opportunity to x-examine on affidavits out of crt examination transcript if 1 person lying can still do summary judgment - Augonie need clear demonstration if no genuine issue - Dawson Evidence

27 Genuine need for trial Deference for trial process Look at pleadings, affidavits, case law see if enough facts to show case If plain & obvious no case summary judgment given If conflicting evidence summary judgment does not work Copland Strike out para w/ leave to amend it

Procedural disposition w/o trial - Getting rid of case for procedural reasons r. 19 default proceedings D did not defend delay/non-compliance (usually crt does costs rather than this) r. 23 discontinuance P changes mind or settles it - Default judgment D deemed to admit allegation P can proceed by 2 avenues Get default judgment (judgment on liquidated claims things that are specific) Campbell For unliquidated damages move for judgment If default judgment given against client when he was away can have it set aside (Lenskis criteria that need to be met for this) Dismissal for Delay and Non-Compliance with Rules (rr. 24, 48.14) - Delay Belanger test - Non-compliance Baksh Discontinuance (r. 23) r. 23.01 (1) (c) consent

Crts prefer to give ppl their day in crt costs awarded ECONOMICS OF LITGATION: COSTS, FEES, ACCESS Access to Justice Justice can be made more accessible by removing obstacles in processes & institutions of law Access to legal knowledge not just access to the system Equal access to the means to use an institution Should not focus purely on the delivery of legal services should look at the value of preventative law (nonlegal means, not going w/ lawyers alone) We see justice as individualized dont see the concept of social justice

28 Therefore, we see access to justice as access to institutions that give out justice as far as that is determined by the pre-existing legal culture Access Solutions - Private insurance (CAW plan) contributions pooled, risk spread - Paralegals (governed LSUC, specialized training, insurance, license) Romanowicz ss. 800 & 802 of CCC allow counsel/agent to appear (for a fee) for summary convictions - ADR informal, flexible, subjective (probs less protection & regulation) - Case Mgmt reducing cost & delay by keeping case on track - Class Actions - Small Claims - Simplified Proceedings - Legal Aid clinics, certificates, duty counsels for 1st appearances no legal aid for civil cases - Self Representation - Contingency Fees risk shifts to lawyer Costs Costs v Fees Cost cost-shifting regime in ON losing party pays costs of winning party put lawyers and parties in check Fees actual amt of money paid to lawyer & hourly rates for crt (lawyers fees, disbursements) - Change in RCP re costs Boucher establishes principles behind current regime CofA set principle of fixing costs according to r. 57.01 & costs grid Fixing of costs not mechanical exercise costs grid is one factor in assessment process Objective is to fix an amt that is fair and reasonable for unsuccessful party to pay in particular proceeding rather than amt fixed by actual costs incurred by winning party Gave rise to the present r. 57 - Process s. 131 CJA, r. 57.01 costs of proceeding at discretion of crts (to whom and to what extent) typically given to winning party r. 57.01 (1) , 57.03 (1) (a) certain factors increase, decrease amt of costs awarded compare Boucher (amt of costs that unsuccessful party can reasonably be expected to pay in relation to step in proceeding) and Pittman (what the services are worth) rr. 57.01 (3), 57.03 costs to be fixed to winning party at trial on a motion by judge/master rr. 57.02, 57.04, 58 Costs can also be sent in exceptional cases to be assessed by assessment officer - Three primary scales of costs awards partial indemnity, substantial indemnity, full indemnity - Partial Indemnity

29 rr. 1.03, 1.04 in normal case costs awarded on partial indemnity basis subject to aggravating/mitigating circumstances Pittman subject to Boucher Boucher objective to fix an amt that is fair and reasonable for unsuccessful party to pay in circumstances of particular proceeding, rather than specific amount incurred by successful party policy balance both parties costs & access to justice (reasonableness and justice are key) Whiten and Jane Doe examples of partial indemnity costs award Substantial Indemnity Awarded in exceptional circumstances Young reprehensible, scandalous or outrageous conduct on part of one of the parties lack of merit not a reason fact that part of litigation was paid for by others not a reason Further reasons for increasing cost awards Discourage abuse / excessive use of system Regulate conduct of parties or lawyers o Unproved allegations of fraud / dishonesty o Dishonest / misleading / bad faith conduct Deal more equitably with amounts of costs As required by rules rr. 20.06, 49.10 Other fact-specific bases o Lammie P maintained pleading knowing there was no evidentiary basis esp on the eve of trial deemed unreasonable o Niagara Full Indemnity rare (Schreiber) Other costs considerations/circumstances s. 57.07 costs against lawyers rare Young we have to zealously represent clients, so some leeway Schreiber Costs against intervenors (not likely) Costs against non-parries (very rare) No costs s. 131 of CJA under this SCC awards no costs If winning party was gov and losing party was justified in complaining Policy Is Ontario fee-shifting approach fair? Are amounts too high / low? seriousness of case Should success in proceeding or reasonableness for unsuccessful party be dominant factor?

30 Does / should your assessment depend on nature of parties involved (corporations, individuals, indigent parties, etc.)? corps can deduct legal fees from taxes, in family law costs dip into damages Does current costs regime facilitate or hinder access to justice r. 2.08 of Rules of Prof C fees have to reasonable Ontario approach to fees hyrbrid of market driven & regulated fees Hourly rates Set fees to allow for certainty Contingency fees currently not cap, but subject to r. 2.08 of RoPC Contingency fees McIntyre (2002) Champerty & maintenance Crt persuaded by access to justice ss. 15, 16 Solicitors Act allowed solicitors to start charging contingency fees (codified McIntyre) Raphael Partners Interpreted r. 2.08 Fees need to be fair and reasonable (set out criteria for reasonable) Favoured access to justice Assessment of fees Solicitors Act clients can challenge lawyers fees, lawyer can challenge nonpayment Client can bring issue to crt OR bring complaint before bar association to have lawyer disciplined Relation of fees to costs under rules

Fees