Contents

Contents...............................................................................................................................1
Introduction .....................................................................................................................7
Ken Scott – “Two Models of the Civil Process”.........................................................7
The Sharia Tribunal Debates ......................................................................................8
Arbitration Act (Ontario).............................................................................................9
Arbitration Act 1991 .................................................................................................10
Comparative Civil Procedure & Critiques.........................................................................11
Common Law Approaches............................................................................................11
Neil Brooks, “The Judge and the Adversary System”...............................................11
Chayes: “The role of the judge in public law litigation” ..........................................12
Civil Law Approaches...................................................................................................13
Oscar Chase (et al), Categorizing the World’s Legal Systems and Their Procedures
....................................................................................................................................13
Aboriginal Law Approaches......................................................................................13
Judy v. White (Navajo SC) ( How standing doesn’t apply in aboriginal courts)......14
Nevada v. Hicks (2001) ( Aborginal and common law jursidction conflict).............14
Gender-Based Critiques
C. Gilligan, In a different voice. ...................................................................................15
E. Schneider, Gendering & Engendering Process – Elizabeth Schneider ................16
The Role of Legal Professionals: Lawyers.......................................................................16
Duncan Kennedy “The responsibility of lawyers for the Justice of their Causes”...16
UK Cab Rank Rule....................................................................................................17
English Barristers Code of Conduct:.........................................................................17
Barrister’s Oath Ontario: Version 1 (until 2008)......................................................17
Barrister’s Oath: Version 2 2008..............................................................................18
Barrister’s Oath Version 3 2009 ...............................................................................18
Rob Atkinson “How the Butler was Made to Do it: The Perverted Professionalism
of the Remains of the day” ........................................................................................19
Law Society Act, 1990 ..............................................................................................19
LSUC Rules of Professional Conduct........................................................................19
A representative Judiciary..................................................................................................22
Beverly McLachlin “Why We Need Women Judges”..............................................22
Aboriginal Representation on the SCC?....................................................................23
Canadian Judicial Council Ethical Principles for Judges..........................................23
Ethical Principles for Judges – Conflicts of Interest .................................................23
Quebec Code de procedure civile (Judicial disqualitifacation).................................24
Liskay v. Robinson (2003) BCCA ( test for reasonable apprehension of bias).........24
Wewaykum Indian Band v. Canada (2003) SCC ( application of reasonable
apprehension test). ....................................................................................................25
Mugesera v. Canada (2005) SCC ( lawyer acts unethically) ....................................26
Court Structure ..................................................................................................................27
Other Jurisdictions.........................................................................................................27
ONTARIO COURT STRUCTURE...............................................................................28
 Ontario Courts................................................................................................................29
section 92(13-14) & 96 of the Constitution Act 1867 ..............................................29
Court of Justice Act ( hierarchy of Ontario courts and monetary amounts they deal
with) Starts at pg 107.....................................................................................................30
Ontario Rules of Civil Procedure ( beginning of the rules) ..............................................31
Basic Interpretive Rules................................................................................................31
General Principles rule 1 ...........................................................................................31
Non-Compliance ( pg 541)........................................................................................31
Timing........................................................................................................................32
Private international law ( which court has jurisdiction over a matter).............................33
Evolution of Canadian Private International Law.........................................................33
Moran v. Pyle National (1975) SCC ( serving person outside jurisdiction)..............33
Basic Principles of Public International Law ............................................................34
Service and Jurisdiction ( rule 16 and 17) .......................................................................34
Muscott v. Courcelles (2002) Ontario C.A ( real and substantial test elaborated to
prove asserting Ontario jurisdiction over a matter). (pg 689)...................................35
Bouzari v. Iran 2003 Ontario C.A ( real and substantial connection SIA)................37
Choice of Law............................................................................................................37
Tolofson v. Jensen 1994 ( choice of law to be used in other jurisdiction)................37
Enforcement of Foreign Judgments...............................................................................38
Beals v. Saldanha 2003 SCC.....................................................................................38
THE PARTIES...................................................................................................................39
Standing.........................................................................................................................39
(public interest standing)............................................................................................39
Canadian Council of Churches v. the Queen( Old public Interest Standing – Test) 39
Harris v. Canada ( New public standing test )..........................................................40
Canadian Bar Association v. B.C ( New public standing test strict application).....40
Judy v. White (Navajo) .............................................................................................41
Intervention ...................................................................................................................41
Intervention : Rule 13 (pg. 614).....................................................................................41
Athabasca Tribal Council v. Alberta ( INTERVENER TEST).................................42
Canadian Blood Services v. Freeman (intervention—WHEN CHARTER RIGHTS
INVOLVED)..............................................................................................................42
Bouzari v. Iran 2004..................................................................................................43
Parties Under a Disability - Rule 7 (pg. 584)................................................................43
Limbani (Litigation Guardian of) v. Limbani( stupid doesn’t equal legal guardian) 44
Counterclaim: Rule 27 (pg. 845)..................................................................................44
Set off ........................................................................................................................45
US Federal Rules of Civil Procedure.........................................................................45
Cross-Claim – Rule 28 (851).....................................................................................45
Third Party claim: rule 29: (856).................................................................................46
Joinder & Consolidation (564).......................................................................................46
Limitations.....................................................................................................................47
Policy rationales for limitations periods....................................................................47
M(K) v. M(H) KM v. HM ( when limitation time will start to run due to discovery)
....................................................................................................................................47
 Novack v. Bond.........................................................................................................48
Statute of limitations......................................................................................................49
Limitations in Ontario ...................................................................................................50
Res Judicata...................................................................................................................52
PLEADINGS.....................................................................................................................53
The Originating Process ( pg 630) ................................................................................53
Actions( 631).................................................................................................................53
Applications (info on pg 636-637).................................................................................53
E.J Hannafin Enterprises Ltd v. Esso Petroleum Canada (1994) (fragmentation of
proceedings and application) ....................................................................................54
Service ( of originating process) ...................................................................................55
Responding to Originating Process ...............................................................................56
Default Proceedings.......................................................................................................56
Martosh v. Horton (2005) [ setting aside default judgment, substituting personal
service.]......................................................................................................................57
Lenskis v. Roncaioli ( test for setting aside default judgment not strict)..................58
Recall: Beals v. Saldanha (florida) ( enforcing default judgment in Ontario from
Other jurisdiction)......................................................................................................59
Purposes & Mechanics of Pleadings..............................................................................59
Replies (r.25.08-09) (826) .........................................................................................60
Request for particulars (r.25.10) (827)......................................................................60
Close of pleadings (r.25.05) (815) ............................................................................60
Amending pleadings (r.26) (833) ..............................................................................60
Copland v. Commadore ( test for when you can ask other side for particuliars of
info in the pleadings). ...............................................................................................61
Whitten v. Pilot ( puntative damages when not requested in Pleadings)..................61
MacDonald Construction Company v. ( need to plead argument with sufficient
detail) (Policy reasons for amending pleadings). .....................................................62
Lammie v. Belair ( consequences for asserting facts that cant be proven)...............63
US Federal Rules of Civil Procedure ( have to certify pleadings unlike Canada).....64
Miguna v. Ontario ( flexibility in Amending pleadings) ..........................................65
Spirito Estate v. Trillium Health Centre (2008) ( when person not correctly named in
pleadings)...................................................................................................................66
Abdelrazik v. AG ( ....................................................................................................66
MOTIONS---- r. 37 & 39...................................................................................................67
Motions for Interlocutory Relief: CJA s. 101 R. 40 .....................................................68
RJR Macdonald Inc. v. Canada ( sets out test to grant interlocutory relief) .............69
Ex Parte Injunctions ( test for Ex Part injunction: standard high)............................70
Robert Half Canada Inc. v. Jeewan (2004) ...............................................................70
Canadian Council for Refugees v. A.G (Canada)......................................................71
Striking Pleadings and Summary Judgment .....................................................................72
Motion for Summary Judgment.....................................................................................72
Jane Doe v. Board of Commissioners of Police for the Municipality of Toronto
( Can’t strike out claim because of novelty) .............................................................73
Dawson v. Rexcreaft Storage and Warehouse (Summary Judgment standard high)
....................................................................................................................................73
 Iriving Ungerman Ltd. v. Galanis ( Mere fact that one party will likely win not
enough for summary judgment) ................................................................................74
Summary Judgment Jan. 1 2010 (Changes) 728 is 20.04..........................................74
Papaschase Indian Band No. 136 v. Canada (AG)....................................................75
Determinations of Questions of Law Before Trial & Special Cases.........................77
Questions of law........................................................................................................77
Special cases – r. 22 (780).........................................................................................77
BC (Min. of Forests) v. Okanagan Indian Band [No. 1] ( test for court to decide
point of law: Requirements strict ) ............................................................................77
Arar v. Syrian Arab Republic ( successful ruling on point of law) ..........................78
Summary Trial/Mini Trial..............................................................................................78
Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. ................................79
BC (Minister of Forests) v. Westbank First Nation [No. 2]......................................80
Summary judgment (definition )................................................................................80
Discontinuance & Withdrawal: Rule 23 (783).............................................................80
Simanic v. Ross ( court doesn’t grant disconituance if matter will likely be
adjudicated in the future) ..........................................................................................81
Dismissal of Action for Delay – Rule 24 (787).........................................................81
Dismissal for delay by registrar (48.14) (1091).........................................................82
Armstrong v. McCall ( Reluctance of Court to grant dismissal of Delay: critera
established)................................................................................................................82
Marchy d’Alimentation Denis Theriault Ltt v. Giant Tiger Stores Ltd ( When can
revive claim that has been dismissed because of delay)............................................83
DISCOVERY ....................................................................................................................84
Introducing Discovery...................................................................................................84
Purposes of discovery ...................................................................................................85
Types of Discovery .......................................................................................................85
Principle of Proportionality (29.2, 1.04(1.1))................................................................85
Discovery Plan – 29.1....................................................................................................85
Deemed undertakings ( what can use documents in discover for).................................86
Documentary Discovery (rules 30 875).............................................................................86
Two step process for documentary discovery discovery : ........................................86
Grossman v. Toronto General Hospital ( affidavit with limited documents) ...........87
Rules of Professional Conduct 4.01(4) ( discovery) .................................................88
Peter Kiewit Sons Co. of Canada Ltd v. British Columbia Hydro and Power
Authority ( Limit to how many documents need to be disclosed when there are so
many).........................................................................................................................88
Leduc v. Roman ( facebook page subject to rules of disclosure due to its purpose). 89
Sedona Canada Principles Addressing Electronic Discovery ...................................90
Physical Discovery (aim for all parties to have access to all relevant info).................90
inspection of property – r. 32 (959)...........................................................................90
medical examination – r. 33& CJA 105 (33 = 962), CJA 105 =235.........................90
Manuel v. Head..........................................................................................................90
Examinations for Discovery..........................................................................................91
Purposes of examination for discovery......................................................................92
Forlitti v. Woolley ( Process of how examination for discovery should be
 conducted)..................................................................................................................92
Privilege - Examples......................................................................................................93
Rules of Professional Conduct 2.03 ( privledge) ..........................................................93
Canada v. Solosky( Test to establish when s-c privledge privilege is established) ..93
Pritchard v. Ontario ( s-c privledge is used by lawyer) ............................................94
Blank v. Canada (DoJ) SCC – ( difference between s.c privledge and litgation
privledge)...................................................................................................................95
A.M. v. Ryan ( confidentiality and privilege for different classes of document) ....95
Re: Harkat ( national security and privledge: strong protection)..............................96
MANAGING THE PRCOCESS ......................................................................................98
T. Farrow, “General Summary/Overview of Basic Civil Claim” .................................98
REFOMING CIVIL PROCERDURE............................................................................98
Colleen Hanycz, “More Access to Less Justice” (2008) ( critique of speeding up civ
pro) ............................................................................................................................98
Simplified Procedure- Rule 76 (1443) ( for less money) ............................................100
CASE MANAGEMENT.............................................................................................100
Case Management Rules 77 & 78............................................................................100
NEW RULE 77........................................................................................................101
Mandatory Mediation ..................................................................................................102
Rule 24.1 (795)........................................................................................................102
O. (G.) v. H. (C.D.) ( criteria exemption from mediation) .....................................103
Rundle v. Krusp ( mediation hard to be exempt from)............................................104
Introducing Pre-Trial Conferences..............................................................................105
Critiques of Pre trial hearings .................................................................................105
Vexatious Proceedings CJA, s. 140 (323)...................................................................106
Dale Streiman & Kurz LLP v. De Teresi ( factors that determine a vexatious litgatn)
..................................................................................................................................106
Contempt (another process by which the courts can control their processes).............107
Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council
( government dissolves injunction which prevents contempt) ................................109
COSTS.............................................................................................................................111
Managing Through Costs ............................................................................................111
four purposes of cost rewards..................................................................................111
Standard of Life Assurance Co v. Elliott ( Ordering lawyer to pay costs)..............113
ACCESS TO JUSTICE...................................................................................................116
Roderick Macdonald: “Access to Justice and Law Reform” ( other means to obtain
justice)......................................................................................................................116
C. Backhouse – What is Access to Justice? ( diversity is key)................................117
BC(AG) v. Christie (2007) (SCC) ( access to justice not constitutionally guaranteed)
..................................................................................................................................118
The Private Funding of Litigation................................................................................119
General Rules Solicitor’s Act s. 1-14 (fees) ...........................................................119
“Ottawa to pay 2 billion in residential schools deal” G&M (Nov. 24 2005)..........120
Contingency Fees.........................................................................................................121
McIntyre Estates v. Ontario (AG) ( Contigency fees allowed they are not champerty,
but are regulated) ....................................................................................................121
 Unrepresented Litigations. .........................................................................................123
Civil Justice Reform Project: Unrepresented Litigants (Osborne Report) ( helping
unrepresented litigants)............................................................................................123
Pro Bono Representation ............................................................................................124
Costs in pro-bono representation? (13465778 Ontario Inc.) ( pro-bono winners can
get cost awards)........................................................................................................124
Advanced Interim Costs ..............................................................................................125
British Columbia (minister of Forests) v. Okanagan Indian Band ( test for interim
costs) .......................................................................................................................125
Little Sisters Book and Art Emporium v. Canada (2007) ( very high threshold to get
interm costs) ............................................................................................................127
Abdelrazik v. Canada International Trade (Min. Affairs and International Trade)
( strict application of interm costs, need to exhaust all monetary options)..............129
Legal Aid ....................................................................................................................129
Legal Aid Services Act 1998 ..................................................................................130
Michael Trebilcock “Report of the legal Aid Review 2008” ( lack of funding for civ
cases)........................................................................................................................130
Legal Aid: New Funding ( increase in funding)....................................................131
Class Actions ..............................................................................................................131
Western Canadian Inc. v. Dutton ( policy reasons for class actions and test for it)
..................................................................................................................................131
Class Proceedings in Ontario:......................................................................................133
Class Proceedings Act (331)....................................................................................133
Certification: Section 5 of CPA ( pg 336-337)............................................................134
test for certification (s.5) .........................................................................................134
Hollick v. City of Toronto ( application of test for certifcaiton of CPA test and
policy rationales for certification) ...........................................................................134
Cloud v. Canada ( test applied for certification of class action part 4 satisfied) ....136
Settlement (s.29) of class action. ............................................................................137
Costs and Fees for class actions ..................................................................................138
costs (s.31) ( pg 394)................................................................................................138
Fees (32-33) (399)....................................................................................................138
Cassano v. TD Bank ( settlement in Class action proceedings were money goes to
behavioural modification programs) .......................................................................139
INTRODUCING TRIALS...............................................................................................140
Rules on trial (52)....................................................................................................140
Jury Trials....................................................................................................................142
Cowles v. Balac (Ont. CA) 2006 ( declining when appropriate to have jury trials) 143
Civil Justice Reform Project: Juries – Osbourne report...........................................144
Enforcement.................................................................................................................145
Jantunen v. Ross (1991 Ont. Div. Crt).....................................................................146
Example: Robert......................................................................................................146
GLOBALIZATION HUMAN RIGHTS AND CIVIL PROCEDURE ..........................147
International Covenant on Civil and Political Rights..................................................147
“Globalization, International Human Rights, and Civil Procedure”........................147
Trevor Farrow .........................................................................................................147
 Presbyterian Church of Sudan v. Talisman Energy.................................................148
Alien Tort Claims Act: ............................................................................................149
Ramirez v. Copper Mesa Mining Corp....................................................................150
Bill C-300 ................................................................................................................150
Concluding Remarks........................................................................................................151

Introduction

Ken Scott – “Two Models of the Civil Process”

A. Conflict Resolution
- in order to reduce the amount of social violence created by disputes we establish
definitive dispute resolution forums
- courts are there as a way for people to resolve disputes without resorting to
violence
- implications of this model
o court system should only care about the kinds of disputes that are
sufficiently serious to generate violence and should not get involved in
disputes where there is no danger of it escalating into violence
o as much as possible you want the parties to the dispute to be the ones that
decide whether or not the dispute goes to court in the first place and what
specific issues the court will resolve.
B. Behavior Modification
- courts are there to enforce law in order to affect the behavior of individuals and
organizations in the future
- example – we may want to stop pollution so we create a system whereby
individuals harmed by pollution can sue polluters. The aim is not to resolve the
dispute but to change the behavior of the polluter for example.
- In the example of pollution – no conflict resolution – the problem is that harms
are spread out over a large group of people – purpose is to enforce law –
individuals don’t have the incentive to bring this to the courts so we have to
modify the rules  class action suits
- So even though one specific individual was not harmed but the larger community
was – class actions suit – recover damages from factory – or b/c factory is aware
of these risks – they will modify their behavior
- So we modify rules of the factory by modifying the rules of procedure.

Video Excerpt “Civil Action”

- Views the court system as encouraging settlements
- courts are dispute resolution forums – that operate in complex ways – when
parties do engage in settlement discussions they do so “in the shadow of the law”
 – parties estimate the likely outcome if matter went to court and based on that
estimation they come to some kind of negotiated settlement.
- If the reason why we would want to enforce tort law in courts is to encourage
people to cease to engage in unnecessarily risky and harmful behavior then you in
some ways don’t have to go to court – it is sufficient for parties to estimate likely
outcomes and come to settlements. (so first model)
- Court is also a forum for lawyers to engage in gamesmanship  civil litigation as
a kind of sport.

Video Excerpt – “A few good men”

- The court as a number of rules of procedure that enable both the parties and the
court to try to come up with the truth

“Philadelphia”
- courts are justice seeking institutions (in some cases)

Video Clip “My name is”

- courts are about power – the power of the state based institutions to enforce law
- sometimes that will be framed in terms of justice, economic efficiency, or perhaps
a form of imperial control/power – cultural power – so one culture asserting
power over another – by defining legal identity for example.
- Or perhaps the court room affords an arena for this minority to protect their land

Summary: Different ways of understanding courts

- institutions that control culturally situated power relations
- justice seeking
- truth seeking
- dispute settlement seeking
- depending on which way you perceive the courts you will have different views
about procedural matters

The Sharia Tribunal Debates

- Arbitration Act 1991  neutral third party – arbitration award according to the
arbitration act could be enforced like a court judgment. so Arbitration Act gave
the outcome of arbitration awards the same status of court decisions
- 2003 – Canadian Islamic congress announced it was creating a tribunal that would
use the arbitration act to resolve family law disputes in Ontario using Sharia law
- announced Sharia law would only be enforced to the extent that it did not
intervene with Canadian law (adultery laws etc not going to be enforced) – but
Islamic law principles about custody of children and about division of property
and spousal support
- a number of organizations came out opposing the tribunals (women’s
organizations and Islamic women’s organizations) arguing that these Sharia
tribunals would be discriminatory towards women
- concerns over substance of Sharia family law (whether or not men and women
were treated equally in division of property rules)
 - procedural concerns – family law raises important issues about gender equity –
important these issues be resolved in publicly accessible forms where we can be
sure that gender equity norms are being applied – and these tribunals are behind
the scenes won’t know what’s going on etc.
- some groups even said family law in general should be excluded from Arbitration
Act – that family law can’t be left to arbitration
- Orthodox Jewish tribunals – need to get a get – occasionally they were involved
in division of property and custody issues and no evidence of gender equity
problems.
Marion Boyd recommended that there is no reason to think that religious family law
arbitration is harmful towards women but there is a concern that arbitration in general
could be problematic in the family law context – we don’t have enough information
about whether or not arbitration is harmful to the parties
- She recommended that we should continue to allow family law arbitration
including religious but put in safeguards.
o For example - parties should be required to get independent legal advice –
arbitrarily awards should be collected to see if there is cause for concern
about the output of these arbitrations.
- The Ontario government rejected this recommendation – was subject to
significant lobbying by Canadian and international organizations opposed to
Sharia tribunals.
- Premiere announced that there would be no Sharia law arbitration in Ontario
(2005)
- Arbitration act was amended to implement that policy
- Ontario government decided that family law arbitration in general could proceed.
- Procedural safeguards brought into play – parties have to receive independent
legal advice – arbitrators have to be specifically trained and registered in Ontario
– appeals if not fair –

Arbitration Act (Ontario)

- 2.21(1) When a decision is made by a third person in a process that is not
conducted exclusively in accordance with the law of Ontario or of another
Canadian jurisdiction,
o (a) the process is not a family arbitration, and
o (b) the decision is not a family arbitration award and has no legal effect
- (2) nothing in this section restricts a person’s right to obtain advice from another
person.

Hypothetical 1:
- was the lawyer right to advise Stephen to resort to arbitration in this context?
- Problem  there is domestic violence
- Regulations – section 2.45 – the individual who is doing arbitration is required to
screen the parties individually for power imbalances and domestic violence and
where there is domestic violence/ serious power imbalance – the arbitrator should
 reconsider whether or not arbitration is appropriate.

Hypothetical 2:
- Family Law Act (s. 59(4)) defines a family law arbitration agreement as one that
was entered into after the dispute to be arbitrated as arisen
- So if it’s a family law dispute the agreement has to be entered into after the
dispute has arisen
- Here it was entered into when they got married not when they had the dispute
over the division of property
- Normally if you had a valid arbitration agreement and Jessica goes to court and
tries to bring action on the same matter governed by arbitration agreement –
usually court would issue a stay.
- But here it will proceed b/c it was entered into before the dispute

Hypothetical 3:
- section 22(1) of Arbitration Act says that in order for arbitration agreement
covering family law matters to be valid, the arbitration has to be conducted
exclusively in accordance with the law of Ontario or another Canadian
jurisdiction
- argument over whether Canadian jurisdiction includes aboriginal system ??
- all the Arbitration Act does is tell you whether or not a court can enforce the
outcome of arbitration

Arbitration Act 1991

- criticism of the Act – if what troubles you about the Sharia Law tribunals is the
possibility that you will have individuals without power who are not aware of
rights under Canadian legal system – worried they will be coerced into resolving
dispute through Sharia law arbitration – those people – if put through arbitration
process they are unlikely to go to the courts to have this outcome overturned
- so if parties are willing to comply without going to court the Act doesn’t prevent
them
- nothing in this section restricts a person to seek advice of another person.

Depending on how you interpret the purpose of courts you will have different views on
whether or not the Ontario government’s response to Sharia debate was appropriate
- courts as dispute settlement arenas
o family law arbitration has resolved disputes – does the courts purpose –
works.
- courts as truth seekers
o family law act requires arbitrators keep a record of awards and forward
them to government institution so they will know what the awards are – so
element of truth seeking
- courts as justice seeking institutions
o argument strongly presented by women’s rights organizations that not
only are religious based family law arbitration but all family law
 arbitration is problematic
o disputes should be resolved in institutions – to enforce public laws –
particularly in family law context – tied to gender equality- should not
privatize
- courts as institutions that enforce power (and cultural imperialism)
o this is an example of cultural imperialism – law to enforce dominant
power

Comparative Civil Procedure & Critiques

Common Law Approaches

Neil Brooks, “The Judge and the Adversary System”

- parties are in control of the prosecution based
- party autonomy
o at the beginning (decide whether or not to bring civil proceedings)
o party decides what they are going to litigate
- party prosecution
o parties get to decide what evidence is involved
o so they are in control during the process too
- two main principles that are suggested to animate the common law adversarial
approach to civil procedure
- parties are in control and judge is a neutral third party

N. Brooks continued - Adversarial approach to litigation – why?

- (1) legitimacy
o economic or political considerations: individuals are fundamentally self
interested actors acting with one another and this produces optimal effects.
Suspicious of governmental institutions – may prefer to leave parties in
control of their dispute because it reflects our economic and political
views.
o Sporting theory of justice: individuals who are in a dispute with one
another come to the court (neutral forum) and engage in a game – court
room dual – civil litigation is like war– at the end everyone is prepared to
let the dispute go.
- (2) Accuracy
o We believe that the adversarial system will lead to accurate factual
findings – parties are strongly motivated in an adversarial system to ensure
that the best legal arguments are put forward
o Judge impartial – system leaves him neutral
o If you put the judge in this system – leave it to parties to put together
evidence – judge will be in a better place to come to accurate findings –
judge will not be biased.
 - problems with the claim that the adversarial system will lead to accurate factual
findings
o access to justice issues: idea that self-interested parties will bring best
evidence etc to the court assumes that both parties have similar capacity
and skills and thus have equal ability to bring best evidence etc forward.
But often there will be disputes b/w unequal resources. (ex btw
government and individual party)
o what do you do where the harms that are at issue in the dispute are spread
across a large number of individuals?
- There are procedural rules that have been created to try to deal with those
concerns

Chayes: “The role of the judge in public law litigation”

- looks in more detail at the role of the judge in traditional common law civil
procedure
- rational for idea of party prosecution and autonomy leading to view of the judge
as a neutral arbiter is that we assume that litigation has certain types of features
(Chayes) Features of Traditional Civil Adjudication
- (1) lawsuits are bipolar (A sues B)
- (2) litigation is retrospective (litigation is about a dispute that arose over
something that happened in the past)
- (3) right and remedy are interdependent
o if A establishes he was harmed by B, the remedy flows directly from the
right – B has to make A whole again (has to compensate A for those
damages) so right and remedy are interdependent
- (4) lawsuits are self-contained
o effect of lawsuit accrues to the individual litigants – when A sues B, the
result of that is of interest only to A and B
- (5) the process is party-initiated and controlled
- Consequences that flow from this
o idea that a judge in an adversarial scenario is in a position to make factual
findings about a dispute that occurred in the past, issue a remedy, and all
of this can occur in a self- contained environment
(Chayes) But in Public Law litigation
- (1) there are many issues that are not bipolar (ex abortion – affects a lot of people,
lots of parties involved)
- (2) public interest and law litigation might not be retrospective – might be about
how it is going to be interrupted in the future
- (3) in public law litigation the right and the remedy might not be strictly speaking
interdependent.
o There is some level of discretion with regards to the remedy
- (4) Not self contained – all sorts of interests – and groups of people who may be
interested in the cases
- (5) Class action lawsuits – normally if parties want to settle they can do so --- but
in class action lawsuits you do have to go to court to have it approve the
 settlement so parties are not in complete control of the process
Conclusion
- Chayes wants to suggest that the traditional image we have of adversarial
common law civil procedure, while it still applies to a large number of disputes
between individuals, it doesn’t apply to a large number of disputes (like class
action suits)
- It doesn’t apply to public law litigation
- It also increasingly doesn’t apply to disputes between individuals.

Civil Law Approaches

Oscar Chase (et al), Categorizing the World’s Legal Systems and
Their Procedures
- courts play different roles and so judges play a different roles
- once litigation is initiated – judge plays more active role in the process ( to
varying degrees in different systems)
o judge can be responsible for determining what evidence needs to be
admitted etc.
- common law approach (adversarial structure) began with idea that the judge
wasn’t even the individual who was responsible for making factual findings
(rather it was juries at the outset)
- because juries made factual findings there were a number of procedural rules that
developed to create trials. At trial idea was that parties would present evidence to
the juries in a single session.
- Civil law tradition (uses judge) didn’t have that historical development so there is
no single trial in the civil law tradition.
- Pre trial issues – how do parties begin litigation (get access to evidence in the
hands of other parties, what can you do to end litigation that has no chance of
success)
- There are significant differences within common law tradition across jurisdictions
- Also has been significant subversion b/w the two systems

Aboriginal Law Approaches

R. Cooter & W. Fikentscher: “Indian Common Law “Anthropological studies

from around the world have found that dispute resolution in tribes aims at
repairing relationships”
- looks at how tribal courts in the US work and what type of rules apply
- in the US for constitutional reasons, the relationship b/w natives and US is nation
to nation
- natives retain some level of sovereignty
- to what degree are these tribal courts different from courts in regular state system?
- most scholars who have looked at the dispute resolution mechanisms in
indigenous communities agree that one of the key aims of these dispute resolution
processes is to repair breakdowns in relationships in part b/c many of these
 communities are fairly small and many of the disputes arise out of day to day
interactions – problem is to resolve it without damaging relationships b/w
disputants and b/w disputants and larger community
- Courts go into far greater detail about the dispute and the individuals who are
involved in the dispute than would be the case in regular court proceedings.
- Willing to look at other things like feelings of disputants
- They apply the law more holistically than in regular courts
- They are willing to consider different forms of remedies that they take very
seriously (apologies for example)
- But decisions are frequently undocumented which hinders development of these
institutions and their common law
- There are some specific communities that have well-resourced and well
developed tribal court structures  Navajo community in the U.S
Judy v. White (Navajo SC) ( How standing doesn’t apply in aboriginal
courts)
- Facts:
- executive members of the council voted themselves a raise, but in order to do so
they should have gone through a referendum and tried to get around it
- Judy (member of community) objects to this increase in salary and says that the
proper procedural rules were not followed so you should strike down this increase
in the salaries of the executive members of the band council and they should pay
the money back.
- This goes up to the Supreme Court of the Navajo nation
- Difference b/w what happened in this court and in what would happen in ours
o You need legal standing to bring a constitutional challenge – have to show
individual interest
o Navajo supreme court says that regular rules about standing should not be
applied in the Navajo courts because in Navajo communities there is a
strong focus on participatory governance, consensus so individuals are
free to speak when they disagree so on this basis the court says they will
not apply the strict narrow rules about standing
- The substantive law applied in a number of circumstances was customary Navajo
law
- Last paragraph of the decision where the court ends up saying that the raise that
was given to the council did not follow the proper procedures and thus invalid.
- Court went on to note that not only was the raise invalid but the way that the
council proceeded violates key norms in the community and those key norms
relate to the importance of listening to other members of the community, the
importance of humility, of equality, of following the proper rituals..

Nevada v. Hicks (2001) ( Aborginal and common law jursidction

conflict)
- The police officer did not have the consent of the community but also damaged
some of Hick’s property
- Hicks sues the state of Nevada and the individual officer calling the search
 unlawful and asking for compensation for the damaged property
- Initially sues in tribal court of his community
- State of Nevada goes to federal court to overturn ruling of tribal court b/c they
didn’t have jurisdiction – issue at court is jurisdiction.
- Two judgments  Scalia (majority) and O’connor (minority) both arrive at same
issue but for different reasoning
o Majority said that tribal court did not have jurisdiction --state has
legitimate interest here and where state interests are at play matters
should be determined in state courts.
o O’conner (minority) says that this is a law enforcement issue that involves
not only the law of the tribal community but also state law
- So particular law in question is Nevada state immunity – SIA – SIA prevents/
precludes Hicks from getting damages in this context.
- Minority says that what should have happened is that tribal court has jurisdiction
but has to use state laws – had they done this they would have found the SIA
Some thoughts on this case from different critiques
- Some supporters of tribal courts will disagree with O’connor b/c according to him
they have to apply state/federal law
- If there is this interaction – state based law will always trump tribal so should
maintain two separate streams
- Others say its important to maintain an interaction – create forums where
aboriginal law can speak to Canadian law
- Regarding Sharia tribunals  some say best idea is to allow Sharia tribunals but
make appeals in regular courts – so you would establish a dialogue

Gender-Based Critiques
C. Gilligan, In a different voice.
- test of moral development– boys consistently outscore girls of the same age when
the test is applied.
- She explores this by looking at one of the tests – Heintz predicament – a man
named Heinz who is trying to decide whether or not he should steal a drug in
order to save the life of his wife who needs it and will die without it in the context
where he cant purchase it. Should he steal it?
o Jake scores high –says he should steal it - translates these facts into
competing rights claims and ranking them into a moral hierarchy
o Amy says he shouldn’t – b/c there are other alternatives – and what would
happen if he does steal it? He goes to jail and she’s still sick and needs
more what would happen in the future – she says best solution is to try to
find a way to work through this dispute. Because she is not translating
these facts into competing hierarchical rights claims she scores lower on
the Kholberg scale.
- Gilligan says this test is wrong – its only one way of measuring moral reasoning
- She makes a pitch for why it is we should pay attention to Amy’s voice
- A number of scholars took this argument (that you have hierarchical rights claims
on the one hand and contextual reasoning on the other hand) and look at
 adversarial legal system – you see a connection with Jake’s kind of reasoning.
so(adversial based on male form of reasoning).
- But there are ADR processes that are more sensitive to context and more sensitive
to the importance of contextual relationships and if we want to pay attention to
Amy’s voice we need to take ADR more seriously

E. Schneider, Gendering & Engendering Process – Elizabeth

Schneider
- two main concerns with this. (Gilligan’s idea)
- By identifying Jake’s voice with boys/men – there is a kind of essentialism (all
men engage in one form, all women in another)
- Concern about the romanticization of ADR – there are power imbalances in the
ADR context that can cause serious problems – so if we want to take Amy’s voice
seriously we shouldn’t always privilege his voice – but ADR has problems too
and so we should think about integrating these two voices in all of our systems.

The Role of Legal Professionals: Lawyers

Duncan Kennedy “The responsibility of lawyers for the Justice of

their Causes”
- wants to say we should choose our clients
- counterarguments
o is it really the role of the lawyer to “judge”
o adversarial system
o what about the rights of the accused?
o Someone else will be there to take the case
- He says most of the time it is not a matter of whether or not the client can get
legal services – its who the client gets. His view is that as an individual you may
have a right to legal representation but this does not translate to individual
lawyers having to take cases
- He is aware of counterarguments – tries to qualify his argument in order to
address these concerns
- American legal scholar – strong right of lawyers to refuse to provide legal
services to any client on any non-discriminatory ground.
- “if you think the outcome of wining-for-your-client would be on balance a bad
thing, socially unfortunate, you should decline to participate, in spite of the fact
that the client will pay, and that you wouldn’t be doing anything that came close
to violating the canons of professional ethics.
UK Cab Rank Rule

English Barristers Code of Conduct:

- idea is that lawyers are like taxi drivers waiting in a Q – not allowed to refuse to
provide services to a person on the grounds that they don’t like the person or
don’t want to go where they want to go or it would be wrong to take them to a
specific part of town.
- a specific prohibition of taking into consideration moral/political concerns in
selecting your clients
601. A barrister who supplies advocacy services must not withhold those services:
(a) on the ground that the nature of the case is objectionable to him or to any
section of the public;
(b) on the ground that the conduct opinions or beliefs of the prospective client
are unacceptable to him or to any section of the public.
602. A... barrister must comply with the rule and accordingly,… he must in any field
in which he professes to practice in relation to work appropriate to his
experience and seniority…accept any instructions… and do so irrespective of (i)
the party on whose behalf he is instructed (ii) the nature of the case and (iii) any
belief or opinion which he may have formed as to the character reputation cause
conduct guilt or innocence of that person.

- Qualifications
- if they can’t pay
- another qualification relates to competence to provide services in specific
areas
- but what if you are a labor lawyer who will only represent management, is
this violating the cab rank rule? Or a family lawyer who will only
represent women, breaking the rule?
- Canada is somewhere in between the American position and the Canadian
Position.
- nothing in our rules of professional conduct in Ontario similar to the Cab
rank rule
- but – Ontario oath may contain it.

Barrister’s Oath Ontario: Version 1 (until 2008)

- “you shall neglect no one’s interest” we usually think of obligation to particular
client – so here it is more broad
- “you shall not refuse causes of complaint reasonably founded” taken from case
law in the UK that gives effect to the Cab Rank Rule
- so the rules of professional conduct don’t tell you that you have to follow the Cab
Rank Rule but the oath does.
- Maintenance and champerty no longer included in the oath.
- Language of citizens – implies that you only have obligations towards citizens 
immigration and refugee law bar was of the view that this should be changed in
 the revised versions and it was. Its now person as opposed to citizen.
- Recognition in this version of the oath that your primary obligation is towards
your client.
Barrister’s Oath: Version 2 2008
- was changed b/c there used to be two separate oaths (barristers and solicitors)
- got rid of language of the queen and god – and maintenance and champerty
- persons are there instead of citizens
- Cab Rank rule gone – and add notion of administration of justice.
- One way to interpret the administration of justice is that lawyers should
ensure access to justice which could mean that they have an obligation to
provide services
- Or you could interpret administration of justice as justice is tied to politics
and morality and that lawyers are being told to act on those
understandings. D. Kennedy for example
- Rule of law  a lawyer’s job is to ensure peoples rights to pursue legal services
- Uphold rights and freedoms and interests of all persons  no particular
recognition of a central obligation towards clients as opposed to the interests of all
clients
Barrister’s Oath Version 3 2009
- discussion led to this revised one
- specific mention of ethical standards
- Cab Rank Rule is back
- Access to justice – tied to access to legal services
- Expansive obligations – all peoples.
- Says rights and freedoms but doesn’t say interests. Obligations towards your
clients to forward their rights and interests – obligations to persons (broader) does
not include interests whereas before it does.
- So there was concern at the law society that the second version was not
sufficiently attentive to the special relationship between a lawyer and their client
and was too attentive to obligations to broader people.
The debate over the Barrister’s Oath indicates that there is sufficient disagreement b/w
what lawyers are supposed to do
- balancing interest of clients as opposed to others
- Cab Rank Rule – to what extent can you take morality and political views into
consideration in client consideration
Some things are relatively stable across these versions
- sense of providing faithful services
- a sense of integrity
- honesty
- obligations beyond just client (to queen, constitution, administration of justice,
access to justice, respecting interests/rights of other people) that theme is present
in all versions even though it takes different forms.
Rob Atkinson “How the Butler was Made to Do it: The Perverted
Professionalism of the Remains of the day”
- Butler (Stephens) – of view that firing them b/c they were Jewish was wrong but
had a duty as a good Butler not to judge his boss
- Ms. Kenton – housekeeper – she objects strongly to firing these two maids on the
- grounds that they are Jewish and threatens to quit if they are fired (even though
she doesn’t in the end)
- This story tracks on to 2 different views about the role of lawyers and the
relationship b/w a lawyer’s personal sense of morality and their self-
understanding of their professional role
- Butler adopts “neutral partisan” understanding of professionalism
- Butler/Lawyer is simply carrying out instructions of client – job is largely
technical in nature – job not to judge client but simply to enhance the
ability of their client to act within the bounds of the law.
- Ms Kenton “moral activist” Duncan Kennedy idea
- Your services to enable your clients to do something you believe is wrong
- Plays into client selection
- Here the issue is what you actually do once you already have the client –
do you assist in doing something you think is wrong?
- Atkinson tries to recommend a third approach
- It might be appropriate for lawyers adopting either approach to converse
with clients
- Ensure they are speaking with one another (lawyers) where these moral
issues arise you can turn to colleagues (subject to confidentiality) for
assistance. Law society has a service.
- Attempt to persuade client to do the right thing.

Law Society Act, 1990

- s. 26. 1  if you’re not a licensee you can’t provide legal services in Ontario.
then it sets out penalties if you do
- s. 33  prohibited conduct – licensees shall not engage in professional
misconduct or conduct unbecoming a licensee
- serious penalties for breaching s. 33 ranging from fines to mandatory
training sessions to suspensions of licenses, to loss of licenses where you
can be permanently disbarred in extreme circumstances
- s. 41  sets out requirement that lawyers who are providing legal services must
meet standards of professional competence including when licensee’s
knowledge/judgment/skills are insufficient
- on the one hand you have a government providing a monopoly to lawyers and
paralegals and on other hand lawyers and paralegals will be held to a certain
standard of conduct and are required to

LSUC Rules of Professional Conduct

- 1.02: professional misconduct  if you breach any of these rules you have
 engaged in professional misconduct (s. 33 of law society act)
- 1.03: General standards  honor and integrity and by virtue of the monopoly of
legal services they are special responsibilities to protect human rights in Ontario
- 2. 01: standards of competence  links to s. 41 of law society act and provides
more detail on the types of legal training etc.
- 2.02 sets out quality of service requirements
- obligation to be honest, candid with clients
- prohibited from knowingly assisting clients to engaged in acts that are
dishonest/fraudulent/criminal/illegal
- organization – asking you to do something dishonest/illegal/fraudulent –
you not only must refrain from doing so but must report that you are being
asked to do that.
- 2.03: confidentiality
- 2.04: conflict of interest
- when a lawyer has an interest adverse to that of the client – prohibited
from acting on behalf of the client - also where you have represented one
client and other client wants you to sue the first one.
- 2.09: withdrawal from representation
- should not withdraw except for good cause. Does the view of the lawyer
that client has engaged in immoral activity constitute good cause? Where
client doesn’t pay fees only withdraw if its not prejudice
- 3.01: making legal services available
- lawyers have right to decline to represent clients and doesn’t indicate that
there is a cab rank rule.
- question as to whether or not this commentary complies with latest version
of Barrister’s Oath – commentary goes on to say that lawyers should not
make the decision to withdraw/decline lightly – should generally not
refuse to represent clients b/c they are unpopular or disagree with conduct
of that person
- 4.01 – acting as an advocate  IMPORTANT.
- Lawyers shall represent the clients resolutely, honestly, within the limits
of the law while treating the clients with candor and respect
- interpreted as though there is an obligation on the part of the lawyer to be
a ZEALOUS ADVOCATE.
- .01(2)  not assisting people to engage in dishonest/fraudulent behavior
- 4.01(2) – prohibits you from allowing someone to testify if you know they are
going to lie.
- rule 4.01(2)(h)  you have an obligation to disclose relevant binding authority to
the court.
- If the court does not consider this recent decision, they have committed an error
and the case will be overturned on appeal
-
- 4.06 – administration of justice (encourage public respect for and try to improve)
- comes up when lawyers are acting for NGOs and suggest that the courts
are wrong – that people should not follow a particular law – should engage
in civil disobedience – lawyers have been disciplined under this provision
 for doing that
- 5.01,2 – supervision and students
- lawyers have professional obligation to ensure that students comply with
the standards and act in good faith
- 5.03 – sexual harassment
- 5.04 – discrimination (lawyers can’t discriminate in providing legal services)
- 6.01 – Integrity of the profession
- explicitly includes reporting misconduct committed by other lawyers
- 6.03 – Responsibility to other lawyers
- must be courteous, civil, and act in good faith towards other lawyers and
should not take advantage of slips and mistakes on part of other lawyers
where those slips/mistakes where they still acting in interest of clients
(minor things)
- 6.04 – outside interests
- includes things like putting time into something outside of legal practice
- 6.09 – Errors and Omissions – ongoing obligation
- (two years later you realize you made a mistake you have to inform client
of error/try to correct it and explicitly advised to encourage client to seek
legal advice as to whether they have action against you)
- 6.11 – Discipline (for professional misconduct)
*** there WILL be an issue of professional misconduct on the exam!!!!!
SEE PRINTED OUT RULES.

Hypothetical #1
- family law lawyer – tax considerations benefit your client and you know that the
other lawyer isn’t aware what do you do?
- issue of sharp practice?? Taking advantage of mistakes on the other side?
- Can’t really use this rule
- Compromises idea that you are trying to protect interests of your client
- Is the other lawyer engaging in professional conduct? Practicing in area they are
not competent?? Obligation to report?
- But what if your client doesn’t want to screw their partner over?
Hypothetical #2
- you have reason to believe your client will lie. What do you do?
- 4.01(2)  not assisting people to engage in dishonest/fraudulent behavior
- 4.01(2) – prohibits you from allowing someone to testify if you know they are
going to lie.
- So you CAN’T allow this person to testify. But what do you do?
- Conversation with client. If this doesn’t actually prevent the client from intending
to lie then you can withdraw.
- 2.03 – confidentiality prohibits you from telling court your client is going to lie -
Hypothetical #3
- your client gives you a number as minimum but wants more and you say they’ll
take 5 grand more and not a penny less
- depends on the context – this is a negotiation
- rules of professional conduct don’t tell us much about negotiation
Hypothetical #4
- you think that the employer is going to refuse to settle and the racial
discrimination matter will go to a long and expensive trial
- in the even that your client is successful in that trial, any damages recovered are
likely to be very small. What do you do?
Hypothetical #5
- you get the opposing counsel’s “litigation strategy” in an email by mistake
- you should avoid sharp practice and so notify them and sent it back
Hypothetical #6
- firm policy not to assist male clients in domestic violations – including torts cases
- gay man asks you for assistance in suing his male former partner for battery.
What do you do?
- The issue about taking male cases is about systemic issues in sexual abuse – here
it might not be the same thing you can change it
- 5.04 says you can’t engage in sexual discrimination
Hypothetical #7
- you believe opposing counsel, who doesn’t have a blackberry is unaware of the
case that has impact on your case
- rule 4.01(2)(h)  you have an obligation to disclose relevant binding authority to
the court.
- If the court does not consider this recent decision, they have committed an error
and the case will be overturned on appeal

A representative Judiciary

Beverly McLachlin “Why We Need Women Judges”

Reasons why we need female judges
- concerns over legitimacy
- to reflect society’s commitment to equality
- to best use available human resources (efficiency – utility)
- to bring new perspectives and rout clichéd stereotypes
- most controversial is to bring new perspectives  says that women judges may
come to different conclusions than male judges
- controversial because judges are supposed to be neutral and it shouldn’t
matter – shouldn’t let personal circumstances effect legal reasoning and if
they do they may be bias
- McGlaughlin qualifies this by saying that she is not saying that men and
women are innately different – she sees problems with the Gilligan
approach as essentialist and that relational contextual reasoning may be a
product of patriarchy (socialization) but she thinks that people differently
situated will draw on social context and that will inevitably have an impact
on some of their decisions.
- She gives examples of cases where she feels that having a woman on the
 SCC where these judges drew on own lived experiences in ways that
differed from what males would have done.
- Argument between impartiality on the one hand and the need for different
perspectives on the other hand an ongoing debate.

Aboriginal Representation on the SCC?

- on the one hand you have this notion saying there should be more attentiveness to
indigenous people and on the other hand the merit principle that we should select
best possible candidate
- indigenous bar association passed a motion that says there should a spot reserved
on SCC for indigenous person familiar with indigenous legal system
- Concern is --- are you essentializing aboriginal peoples? The experiences of
different aboriginal communities are quite different.
- Argument for: deal with aboriginal issues so need expertise and thus need an
aboriginal on the bench.
- Argument against: This would be suggesting that judges aren’t neutral and
aboriginal person come up with different approach then non aboriginal.
- But, there may be certain structural issues that may be at least common across
these traditions including most importantly – the reality of colonialism
- It may be necessary for there to be French representation b/c the SCC deals with
civil cases from Quebec so you need experience.
- So the argument relating to aboriginal representation may be an argument relating
to legal pluralism - if we take the civil tradition need seriously we may need to
respond to indigenous legal traditions.

Canadian Judicial Council Ethical Principles for Judges

(1) Purpose – the purpose of this document is to provide ethical guidance for
federally appointed judges
(2) Judicial Independence – an independent judiciary is indispensable to impartial
justice under the law. Judges should, therefore, uphold and exemplify judicial
independence in both its individual and institutional aspects
(3) Integrity – Judges should strive to conduct themselves with integrity so as to
sustain and enhance public confidence in the judiciary
(4) Diligence – judges should be diligent in the performance of their judicial duties
(5) Equality – judges should conduct themselves and proceedings before them so as
to assure equality according to law
(6) Impartiality – judges must be and should appear to be impartial with respect to
their decisions and decision making
Ethical Principles for Judges – Conflicts of Interest
1. Judges should disqualify themselves in any case in which they believe they will
be unable to judge impartially  where they are biased (recuse themselves) –
even if there is a reasonably suspicion of bias (so concern about actual bias or
reasonable apprehension of bias and in either circumstance they should recuse
themselves)
 2. Judges should disqualify themselves in which they believe that a reasonably, fair
minded and informed person would have a reasoned suspicion of conflict b/w a
judge’s personal interest (or that of a judge’s immediate family or close friends or
associates) and a judge’s duty
3. Disqualification is not appropriate where the matter is trifling and not substantial
and where in doing so there would be a miscarriage of justice

Quebec Code de procedure civile (Judicial disqualitifacation)

234. A judge may be recused in particular:
1. If the judge is the spouse of or related or allied within the degree of cousin-
german inclusively to one of the parties
2. If the judge is himself a party to an action involving a question similar to the one
in dispute
3. If the judge has given advice upon the matter in dispute
4. If the judge is directly interested in an action pending before a court in which any
of the parties will be called.
5. If there is mortal enmity b/w him or her and any of the parties
6. If the judge is the legal representative of a party
7. If the judge is a member of an association, partnership or legal person, or is
manager or patron of some order or community which is a party to the suit
8. If the judge has any interest in favoring any of the paries
9. If the judge is the spouse or is related or allied to Attorney or counsel or to partner
of any of them…
10. If there is reasonable cause to fear the judge will not be impartial

Liskay v. Robinson (2003) BCCA ( test for reasonable apprehension

of bias)
- Facts:
- judge was in a car accident – has already heard entire argument b/w
litigants relating to a motor vehicle accident case
- insurance company is same as the one in litigation surrounding his own
accident
- he is of the view that there may be a reasonable apprehension of bias and
asks the parties whether or not he should recuse himself
- one party doesn’t want him to  this would require rearguing the entire
case before a new judge – quite expensive.
- Judge recuses himself and goes to appeal
- Judgment
- BCCA decides that this judge was properly recused
- If a reasonable person looked at conclusion would they apprehend that
there was bias
- BCCA sets out test for reasonable apprehension of bias
- Apprehension of bias must be a reasonable one, held by reasonable and
right-minded persons, applying themselves to the question and obtaining
 thereon the required information.
- That test is what would an informed person, viewing the matter
realistically and practically – and having thought the matter through –
conclude
- The grounds for this apprehension must, however, b e substantial

- Court of appeal says that the judge has some relevant interest in this case
- An interest in the sense that the parties are the same in his litigation
- Broader interest  if this case ends up being decided on a point of law –
ends up interpreting the law – that interpretation could have impact on the
judge’s own litigation

Wewaykum Indian Band v. Canada (2003) SCC ( application of

reasonable apprehension test).
- test: “what would an informed person, viewing the matter realistically and
practically and having thought the matter through conclude? Would this person
think that it is more likely than not that Binnie whether consciously or un did not
decide fairly?
- Facts
- Working for the crown supervising litigation 15 years prior to the matter
coming to the SCC
- That litigation 15 years later ends up in the SCC and he forgot that he had
been involved in it before
- Had he known he was involved he would have recused himself
- SCC issues a decision with Binney writing it and it’s a unanimous
decision of the court
- Indian bands lost and were unhappy with the outcome so they make a
freedom of information request knowing that Binney had been associate
deputy minister asking for all documents with his name on them dealing
with this litigation – turns out he did supervise this litigation
- The Bands said applying test for reasonable apprehension of bias –
reasonable person would conclude he was not in a position to decide the
case impartially
- Decision
- SCC says no reasonable apprehension of bias
- Reasons
- b/c of unanimous judgment – the other judges signed off on the decision
so even if there was reasonable apprehension of Binney there wouldn’t be
on the whole court
- Binney played a relatively minor role in the supervision
- Lack of recollection and passage of time b/w events
- Taking all this into consideration a reasonable person would not believe he
was capable of being impartial
- Concern  ensuring that justice is seemed to be done – transparency and
perception of impartiality
Mugesera v. Canada (2005) SCC ( lawyer acts unethically)
- Facts
- M came to Canada in 1993 from Rwanda – became permanent resident but
made a series of mistakes in his immigration papers – said wasn’t involved
in genocide when he was
- He judicially reviewed decision to deport him – the review doesn’t work
and court upholds decision to uphold him
- He appeals to SCC
- During time of appeal - Justice minister appoints Justice Abella
- Lawyer says there was a plot for justice minister who is Jewish to appoint
Abella whose husband is big in Jewish Congress
- Allegation is that they did this to have Mugasera deported
- Abella recuses herself – doesn’t participate
- Lawyer says no – entire SCC was tainted by her presence
- Decision for motion of stay of proceeding
- SCC rejects argument and says there is no reasonable apprehension of bias
and that allegations are without factual foundation
- There is no way to go from Justice Abella’s connection with Jewish
congress to entire court being tainted.
- Court notes the notion was anti-semitic
- Notes lawyer is engaging in unprofessional behavior and says the motion
is an abusive process
- Has lawyer (Bertren) committed breach of professional rules of conduct?
- “this motion is flagrantly without basis in fact or in law… although it is not our
usual practice, the content of the motion and its allegations compels us to point
out that it is unprofessional and unacceptable. It constitutes an unqualified and
abusive attack on the integrity of the judges of this court. In an attempt to
establish the alleged Jewish conspiracy and abuse of process against the
Mugeseras, this pleading systematically referred to irresponsible innuendo… the
only abuse of process from this motion lies at the feet of the respondent Mugesera
and Mr. Bertrand.”
- Was it appropriate for justice Abella to recuse herself (because her husband is
involved in the Canadian Jewish Congress and accusation of Jewish conspiracy)
- The test is that should recuse yourself if u have personal bias or connection to
close family member
- Was Irving Abella’s involvement more significant than the involve of Binnie in
the prior aboriginal land claim dispute (note the test for recusal from a case and
cancelling a decision is diff)
o Ask yourself whether the conflict here is more that a mere trifling matter
o Is the possible perception of bias sufficiently serious to justify recusal?
• Has the lawyer committed professional misconduct (accoridng to the professional
code of conduct)
o He was in fact disciplined
o There was a motion for him not be disbarred but because he admitted to
 professional misconduct and said sorry, he was only suspended

Hypothetical 1: An Ontario Superior Court judge is scheduled to hear a

trial involving a land dispute between the Kashechewan First Nation
and the Ontario crown. The judge is a member of the Kashechewan
First Nation, although she now resides in Ottawa. The Chief of the
Kashechewan First Nation is the judge’s first cousin. Should the judge
recuse herself?
- Ethical rules speak of family relations but are not specific
- if u are member of this community and the judge recuses himself because of that
then another person form another community (maybe opposing community)
would be appointed, and people of that community would feel there is bias in the
system
- Most cousins in this case would nto recuse themselves in this situation

Hypothetical 2: An Ontario Superior Court judge is about to hear a

medical malpractice suit against a doctor. The judge is married to a
doctor. According to an expert study commissioned by the plaintiff’s
lawyer, over the course of his career the judge has heard 37 medical
malpractice suits that resulted in judgment, and has found in favour of
the plaintiff in only 2 of these cases. According to the expert study, in
Ontario the average success rates for plaintiffs in medical malpractice
suits that result in judgment is approximately 40%. Should the
plaintiff’s lawyer bring a motion for recusal? If such a motion is made,
should the judge recuse himself?
- Is family connection here enough for recusal? Probably not, it would be if that
was the doctor being sued
- Is the judges record sufficient for recusal?
o Also have to think whether the mere statistics diff between judges should
be enough to establish reasonable apprehension of bias

Court Structure
Other Jurisdictions
- Court structure in England and whales- England has a unitary structure (u go up
the hierarchy of courts, the highest court deals with all the jurisdictions)
- France ahs very diff structure- different groupings of courts, u do not have a
single high court that deals with all jurisdictions (there are four top courts that
deal with diff jurisdictions
• US court structure 2 separate systems (state and federal) top sate courts and the
supreme court, if it is a state issue of state law u cant go above the state appellant
court, the only way can go from state stream to supreme court is if u take a state
law case and frame it in terms of constitution and make it a federal issue
o The way the fed system is set up is that states are divided into 9 district
 federal courts, then three court of appeals for groups of districts and then
one supreme court for all districts re federal matters
o Us supreme court decisions are not binding on state courts unless are
talking about federal issue, (it can be persuasive but not binding) same is
true for federal court of appeals,

ONTARIO COURT STRUCTURE

- Section 101 of Constitution Act, 1867- allows feds to establish courts, SCC is
created under this
- Supreme Court Act
- s.35 – General appellate jurisdiction
o s.40 – Appeals with leave:  A couple of ways u can get a case into the
SCC,

 if the appellate court in a specific jurisdiction gives u permission

to do so (see this in section 37 and 38) this happens rarely

 Another way is the government can ask a reference question to the

SCC

 U have aright to appeal to the SCC in certain criminal cases (crim

code sets out the types of cases where u have

 The usual root to the SCC is section 40 of the SCC act, u can
appeal final decision of the final appellate court with leave (u have
to ask permission of the SCC to an appeal decision from a
provincial court of appeal)

 “the Supreme Court is of the opinion that any question involved

therein is, by reason of its public importance or the importance of
any issue of law or any issue of mixed law and fact involved in that
question, one that ought to be decided by the Supreme Court or is,
for any other reason, of such a nature or significance as to warrant
decision by it.”

 SCC not there to decide findings of fact, is there to decide issues of

law where the issue is significant in one way or another

 Notice that leave is rare, the SCC gets about 600 application for
leave a year, and they usually only hear 60-70 cases

• Rules of The Supreme Court of Canada ??????

 Be aware that rules
  Diff courts have diff rules
• Military court (not spending any time on in this class)

o Established under Section 101 of Constitution Act, 1867

o National Defence Act

o Code of Service Discipline (Part III of the National Defence Act)

• Federal courts

o Section 101 of Constitution Act, 1867

o Federal Courts Act

o s.17 – Concurrent jurisdiction re: relief against Crown

o s.18 – Exclusive jurisdiction re: judicial review of federal boards,

commissions or other tribunals

o s.20 – Exclusive jurisdiction re: IP

o s.21 – Exclusive jurisdiction re: Citizenship

o s.22 – Concurrent jurisdiction re: navigation & shipping

o s.23 – Concurrent jurisdiction re: bills of exchange, promissory notes,

aeronautics & interprovincial works / undertakings.

o s.25 – General extra-provincial jurisdiction

o S.27 – Appeals to FCA

• Federal Courts Rules

o Tax Court of Canada Act

o Tax Court Rules

SEE IF WE NEED THIS STUFF.

Ontario Courts

section 92(13-14) & 96 of the Constitution Act 1867

- 92(13-14) gives provinces the power over the courts
- 96 establishes that the Superior Courts of each province are the courts of inherent
 jurisdiction
- unless there is legislation saying that a particular matter has to go to another court
the place to go is the section 96 court which is the superior court of justice.

Court of Justice Act ( hierarchy of Ontario courts and

monetary amounts they deal with) Starts at pg 107
- - s. 2-9  rules about Ontario Court of Appeal -- hears appeals from superior
court of justice
- f a case is heard at divisional court – Ontario court of appeal can hear the appeal
with leave where the case involves more than $50, 000
- Divisional Court  s. 28-21 (and 31) Meant to be a final court of appeal for
minor matters (hears appeals for superior court of justice involving less than $50
000) Also hears appeals from family court, small claims court (31) ( pg 133).
- Superior Court of Justice (s. 11-17)  court you end up in by default
- Ontario Court of Justice  jurisdiction is exclusively whatever powers are given
to it from legislation or court of justice act – not a court of inherent jurisdiction 
mostly less serious criminal cases as well as family matters (not a s. 96 court)
- Small Claims Court  s. 22-33 -- is a s. 96 court – narrower jurisdiction b/c s. 23
gives it jurisdiction over litigation involving small amounts of money ($25 000)
(pg 145-146)
- Family Courts  S. 21.1-21.15

Hypothetical #1
- when you start a case in a certain court when you should have started it in small
claims court there are cost consequences and its easier / more efficient
- $500  small claims court but an injunction is also being asked here  small
claims court does not have jurisdiction for that. ( ask Emma)
- If we were only talking about the $500 and go to small claims court – unhappy
with decision – no appeal allowed. ( no appeal less for less then 500)
- $501 dollars – appeal would be at divisional court –
- so in this case you go to court of inherent Jurisdiction  superior  for appeal
you go to OCA b/c injunction is outside jurisdiction of divisional court
Hypothetical #2
- Federal Court since you are suing the Crown  Then you go to Federal Court of
Appeal then to SCC with leave
- Also have option that b/c 172b gives federal court concurrent jurisdiction not
inherent  so you could go to SCJ – then go to divisional court – final – but in
principle you could appeal with OCA with leave (issue of law not fact)
- In small claims courts in most jurisdictions you can’t sue the government – but in
Ontario b/c Small Claims Court is branch of SCJ – s. 96 court – you can sue the
crown.
- Small claims is the best option here b/c the difference in costs is guaranteed to be
more than $2000
- Still want to tell client that the chances for mistake are higher here and the appeal
 options are less but reality of the amount means you don’t want to waste your
time on anything else
- Federal court is regarded as a weaker court than Ontario superior court

In an exam question you have to say what courts are available and why you would
prefer one court over the other.

Ontario Rules of Civil Procedure ( beginning of the

rules)
Basic Interpretive Rules
- court has ability to modify rules

General Principles rule 1

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and
least expensive determination of every civil proceeding on its merits.

1.04(1.1) in applying these rules, the court shall make orders and give directions that are
proportionate to the importance and complexity of the issues, and to the amount involved
in the proceeding. (principle of proportionality) – New Principle – Brought in this year.
(Pg 527,537

1.5 When making an order under these rules the court may impose such terms and give
such directions as are just.  not just rules but what would be just

Non-Compliance ( pg 541)
- 2.01 (1) A failure to comply with these rules is an irregularity and does not render
a proceeding or a step, document or order in a proceeding a nullity, and the court,
- (a) may grant all necessary amendments or other relief, on such terms as
are just, to secure the just determination of the real matters in dispute; or
- (b) only where and as necessary in the interest of justice may set aside the
proceeding or a step, document or order in the proceeding in whole or in
part.
- So a potential consequence is quite severe, but the court has discretion as
to whether or not to impose those consequences
- 2.02 A motion to attack a proceeding or a step, document or order in a
proceeding for irregularity shall not be made, except with leave of the court
- (a) after the expiry of a reasonable time after the moving party knows or
ought reasonably to have known of ht irregularity or
- (b) if ht moving party has taken any further step in the proceeding after
obtaining knowledge of the irregularity
 - so if the party unhappy with breach of rule waits too long or has taken any
further steps in the litigation after becoming aware of the rule they cannot
bring a motion to attack the procedure that didn’t comply unless they get
permission of the court
- 2.03  court may, only where and as necessary in the interest of justice, dispense
with compliance with any rule at any time
- there are cost consequences as well

Timing
- 1.03 (Definition of ”holiday”) – Weekends, New years day, good Friday, Canada
day, civic day, Easter Monday, labour day, family day, Victoria day,
thanksgiving, Nov 11, boxing day, following Monday if NY Can or 11 fall on the
weekend.
- things such as days and holidays are defined explicitly
- 3.01 pg 545 (1) In the computation of time under these rules or an order, except
where a contrary intention appears
- (a) where there is a reference to a number of days b/w two events, they
shall be counted by excluding the day on which the first event happens
and including the day on which the 2nd event happens, even if they are
described as clear days or the words “at least” are used;
- (b) where a period of seven days or less is prescribed, holidays shall not
be counted
- (c) where the time for doing an act under these rules expires on a holiday,
the act may be done on the next day that is not a holiday; and
- (d) service of a document, other than an originating process, made after 4
p.m. or at any time on a holiday shall be deemed to have been made on the
next day that is not a holiday.
- 3.02 ( pg 546-547) (1) Subject to subrule (3), the court may by order extend or
abridge any time prescribed by these rules or an order, on such terms as are just.
- (2) A motion for an order extending time may be made before or after the
expiration of the time prescribed.
- (3) An order under subrule (1) extending or abridging a time prescribed by these
rules and relating to an appeal to an appellate court may be made only by a judge
of the appellate court.
-

Hypothetical 3
- Rebecca served Andrew with a statement of claim on Dec. 5 at 2:00pm
- Rule 18.01 says statements of defence must be delivered within 20 days after
service of statement of claim where D is served in Ontario.
- By what time/date must Andrew deliver the statement of defence?
- You start counting on the 6th.
- You count holidays if its MORE than 7 days – if 7 days or less you don’t count
holidays (rule 3)
- You do count the last day
- So its due by 4:00pm on the 27th.  3.011 (d) if its after 4:00pm its like you
 handed it in the next day

Private international law ( which court has jurisdiction

over a matter)
- Also referred to as conflict of law b/c what to do when there is a potential conflict
b/w two jurisdictions over a particular dispute
- Not the same thing as public international law (rules about what states are obliged
to do)
- This is a body of law about how to decide what court has jurisdiction over
particular disputes
- Actually domestic in nature meaning that in order to find out whether or not a
particular court has jurisdiction over a dispute you look to the private
international law of Ontario for example
- Important point: Which court has jurisdiction over a particular dispute
where that dispute crosses the border

Evolution of Canadian Private International Law

- common law rule: Service or consent
- old rule that defendant had to be served within jurisdiction of court
- so if you wanted to sue in Ontario you actually had to serve the statement
of claim (originating process) in Ontario.
- So if D wasn’t in Ontario you were out of luck.
- Tag jurisdiction
- Service ex juris  Long arm service statutes legislation-- allowed parties to serve
defendants outside of their jurisdiction with the leave of the court (within certain
circumstances)
Moran v. Pyle National (1975) SCC ( serving person outside
jurisdiction)
- Man was shot and killed and woman wanted to bring action in negligence
against the company but wanted to do so in Saskatchewan where she lived
rather than in Ontario where Defendant resided
- Concern about whether it was appropriate for court to give permission for
service ex juris
- SCC said that it was appropriate to allow Saskatchewan courts to assert
jurisdiction over this matter on the basis that it should have been
reasonably foreseeable to defendant that its products would be used in
Saskatchewan and when company decided to sell products in S it had
consented to S asserting jurisdiction over product liability with respect to
those products
- Liberalization of service ex juris
 - Courts increasingly willing to authorize service ex juris
- Morguard Investments v. De Savoye 1990 SCC
- Established the real and substantial connection test
- Codification? This was common law based
- Debate in Ontario over whether or not Ontario should codify and follow
suit
- Has codified in some provinces (B.C and Quebec??)

Basic Principles of Public International Law

- jurisdiction Simpliciter “Real and Substantial Connection”
- is it possible for a court to assert jurisdiction over a particular
matter/dispute
- Forum Non-Conveniens –
- whether or not court is most appropriate forum
- Court asks itself – in principle, can the court assert jurisdiction in the
specific case – so if answer is yes – they ask if they are most appropriate
forum to assert jurisdiction over this matter
- If there is another forum more appropriate even if court has jurisdiction –
it will decline in favor of another jurisdiction.
- Comity – the courts in one jurisdiction will respect the territory sovereignty of
another
- Public order/ public interest
- What do you do if law in other jurisdiction offends principles of public
order?
- Forum shopping –
- Idea that if you allow plaintiffs to sue in multiple jurisdictions they will
choose the forum that is most advantageous to them
- If you’re dealing with complex cases involving multiple plaintiffs –
concern that the Plaintiffs will engage in forum shopping
- Choice of law
- Even if they are allowed to sue in a jurisdiction – which law do they
follow? (the Ontario law or Florida law for example)

Service and Jurisdiction ( rule 16 and 17)

- rule 16 – Service inside Ontario (see page 665 of book)
- how you serve defendants located in Ontario
- rule 17.02 – service outside Ontario without leave (678,680)
- 17.02 sets out rules whereby plaintiff can sue defendant outside Ontario
( where Ontaro will assert jurisdiction over the matter)
- 18 sitatuions laid out where can sue.
- Property / Mortgage / Estate in Ontario (a,b,d,e)
 - Contract made in Ontario, governed by Ontario law, with a choice of
forum clause naming Ontario, or where a breach committed in Ontario (f)
- Tort committed in Ontario (g)
- Damage sustained in Ontario (h)
- G and h tell you that Plaintiff is entitled to serve Defendant without
permission if Defendant is outside of Ontario
- Injunction in Ontario (i)
- Action on foreign judgment (m)
- Person carrying on business in Ontario (p)
- Extra party to litigation (o, q)
- Action to recover taxes owed in Ontario (r)
- Otherwise authorized by statute (n)
- most frequently are circumstances where a foreign defendant committed a
tort in Ontario or where they committed tort somewhere else but damage
was sustained in Ontario
- so this is modern equivalent of long arm statute
- 17.03 Service outside Ontario WITH leave (17.03) (685)
- even if you don’t follow within those categories in 17.02 you can as a
Plaintiff apply for leave from the court – court will look at real and
substantial connection test to determine if person outside of Ontario can be
served.
- 17.06 – motion setting aside service outside Ontario and stay proceedings ( (688
paragraph in pen )
- (1) A party who has been served with an originating process outside
Ontario may move, before delivering a defence, notice of intent to defend
or notice of appearance, (a) for a notice setting aside service and any order
authorized the service or (b) for an order staying proceeding
- (2) granted where: service not authorized, (but where would have given
leave can implement it) should not have been granted, or where Ontario
is not a convenient forum
- 21 – rules about when you can ask the court to stay proceedings and when you
can ask the court to dismiss an action
- one of the grounds is on the grounds that Ontario does not have
jurisdiction over the matter or it is not the most convenient forum
- if you are a D who has been served with a statement of claim and you don’t
believe Ontario has jurisdiction or is the most convenient forum, you can make
motion to court to have them set aside proceedings.

Muscott v. Courcelles (2002) Ontario C.A ( real and substantial test

elaborated to prove asserting Ontario jurisdiction over a
matter). (pg 689)
- Facts
- Guy is seriously injured in Alberta in car accident – goes to Ontario to be
taken care of by mother
- Wants to sue in Ontario
- Sues on the basis of 17.02  damage sustained in Ontario – in respect of damage
sustained in Ontario arising from a tort, breach of K, breach of fiduciary duty or
breach of confidence WHEREVER committed
- Issue -- Is 17.02(h) to the extent that it purports to assert Ontario Jurisdiction over
Defendants in Alberta – ultra vires ? (unconstitutional)
- Court does not accept that it is ultra vires b/c 17.02 (h) doesn’t actually
confer jurisdiction on the court – they simply tell you what procedure you
have to follow in order to serve a foreign defendant. Its not the mere fact
that you properly served the Defendant, but the real and substantial
connection test b/w Ontario and this litigation
- Issue – Real and Substantial connection test:
- (a) Connection b/w forum and Plaintiff’s claim -- mere residence of
Plaintiff is not sufficient
- (b) Connection b/w forum and Defendant  has Defendant done anything
that would increase defendant’s connection with the forum (here no
connection)
- (c) Unfairness to Defendant in assuming jurisdiction  court says no –
not in this case b/c Defendant had consented to engage in an inherently
risky activity (driving a car) knowing full well that there may be foreign
plaintiffs driving in the province as well.
- (d) Unfairness to plaintiff in not assuming jurisdiction --- look at balance
b/w unfairness to Plaintiff and Defendant – would be unfair for Plaintiff to
leave Ontario b/c of condition --- the Defendant was insured by national
company– no real unfairness to defendant given that he was insured
- (e) Involvement of other parties (multiple or other parties involved)
- (f) Would the court enforce a judgment based upon the same jurisdictional
arguments? (so opposite, like would the Ontario court enforce decision of
Alberta court if plaintiff was there but accident and defendant were here?)
 court says yes.
- (g) Is the case inter-provincial or international? Assuming Ontario asserts
jurisdiction and assuming the relevant law applied is Alberta law, you
have Ontario courts pronouncing Alberta law – not experienced in Alberta
law. Court said unitary court system, and Alberta law not so different
from Ontario.
- (h) Comity and the standards of private international law prevailing
elsewhere -- court says that the practice internationally is not relevant to
the rules as b/w provinces. (international is not the same as inter-
provincial)
- Not applied strictly, No factor is determinative
- (3) Forum Non-Conveniens Factors
- Location of parties
- Location of witnesses and evidence
- Contractual choice of law
- Avoidance of multiple proceedings
- Applicable law, and whether issue turns on law or fact
- Geographical factors
 - Whether declining jurisdiction would deprive the P of a legitimate
juridical advantage available in the domestic forum
- Court decided Ontario most convenient forum
- No issue of liability, so the issue will be the damages
- If issue is just damages, you don’t need the driver of other car to testify –
you need plaintiff to testify as to injuries, doctors, (both are in Ontario)
- Court here relied heavily on location of most of the parties

Bouzari v. Iran 2003 Ontario C.A ( real and substantial connection

SIA)
- Facts
- Iranian citizen was tortured b/c refused to give son of president money
being asked for as part of a deal he didn’t want part of
- He left the country and immigrated to Ontario and wants to sue Iran for
damages resulting from his torture
- Challenges
- State Immunity Act – appears to prohibit people in this situation from
suing foreign states
- Jurisdictional problem – is there a real and substantial connection b/w
Ontario and this dispute
- Real and Substantial Connection Test
- No connection with Ontario at all b/c occurred in Iran
- No connection other than his present residence
- No connection b/w defendant and Ontario
- “the application of the real and substantial test to the circumstances of this
case is not easy. However, given the conclusion I have reached on the
issue of state immunity, it is unnecessary to finally determine how the real
and substantial connection test would apply here. That is best left for
case in which the issue must be resolved”
- court expresses concern about this test – maybe in these circumstances it
should be modified
- legislation takes these concerns into account but there remains a question – is the
legislation in B.C and Quebec which may authorize this kind of thing subject to
the R and S test --- rule 17 – not jurisdiction conferring but simply procedural
- so should it be modified in Ontario
- even if you have legislation explicitly authorizing courts to assert jurisdiction in
these scenarios – is that subject to R and S
- court acknowledges but won’t decide this issue and goes ahead with resolving the
case based on SIA

Choice of Law

Tolofson v. Jensen 1994 ( choice of law to be used in other

jurisdiction)
- facts
 - plaintiff was a minor and resident of BC – injured in a car accident in
Saskatchewan
- Defendant Jensen was a resident of Saskatchewan
- Second Defendant was father Tolofson who was driving his car
- Plaintiff suffered life long learning disability
- 8 years later he brings an action in B.C courts against both defendants.
- Problem is that under Saskatchewan law these types of claims must be brought
within 12 months. But under BC law no statute of limitations
- Plaintiff wants to sue in BC using law of BC
- Issue – does BC have jurisdiction
- Similar to Muscot case -- so if it is right, then Tolofson can sue in BC
- Choice of law problem – should BC law apply or Saskatchewan law apply
- Common law rule BC
- Where the tort occurs in a foreign jurisdiction – if you want to sue in home
J – you have to meet 2 conditions
- 1) tort has to be actionable in BC
- 2) the tort that was committed in foreign jurisdiction – in that Jurisdiction,
the action cannot have been legally justifiable.
- Dual actionability rule
- In order for a plaintiff to sue in their home jurisdiction for a tort that
occurred elsewhere – that tort has to be actionable in both jurisdictions
- Court decides to adopt new rule
- “from the general principle that a state has exclusive jurisdiction within its
own territories and that other states must under principles of comity
respect the exercise of tits jurisdiction within its own territory, it seems
axiomatic to me that, at least as a general rule, the law to be applied in
torts is the law of the place where the activity occurred (lex loci delicti)
- but the substantive law that the court will apply is the law where the tort occurred
 if you are in Ontario and tort occurred in S but Ontario has jurisdiction due to
where they sustained injuries --- do Ontario courts continue to follow Ontario
rules and procedure or of other jurisdiction? Court says O courts always apply
O rules and procedures even if substantive law of foreign Jurisdiction.
- historically at common law, limitations periods were treated as procedural
- court says from now on we are going to treat limitations periods as substantive
law
- Conclusion  this means that Tolofson can sue in BC, they will apply substantive
Saskatchewan law including limitations period – so he is out of luck
- **So Lexi Loci and Limitations periods are substantive, not procedural

Enforcement of Foreign Judgments

Beals v. Saldanha 2003 SCC
- facts
- purchased property in Florida then sold it
- purchaser thought they were buying a particular lot when they were
 actually buying an adjacent law – purchaser said it was fault of seller so
purchaser faced damages b/c built on lot they didn’t actually own
- purchaser sued seller in Florida
- seller defended action initially in Florida
- purchaser then changed grounds on which he was suing the seller (issued
new statement of claim)
- seller chose not to defend the action in Florida – judgment was huge
action against seller
- Florida is a plaintiff friendly jurisdiction (you can triple amount your asking for)
- Legal advice seller gets is that there is no way Ontario court will enforce this
court order
- Later purchaser comes here asking Ontario courts to enforce Florida court order
with interest
- Issue  should Ontario Courts enforce this Florida court order
- SCC says yes.
- Rule 17.02 – a party to a proceeding may, without a court order, be served outside
Ontario with an originating process where the proceeding against the party
consists of a claim.
- Sellers could have defended themselves in Florida and chose not to
- S. 7 charter argument dismissed by court.
- Says there is a real and substantial connection with Ontario and good policy
reasons for enforcing it

THE PARTIES
Standing
- the old common law rule- The only people who had standing to sue, where parties
that had both a right that had been violated and were entitled to a remedy for the
violation of that right. (eg. individual may be affected by govern policy, had no
standing to sue, unless own rights were somehow were at stake)

(public interest standing)

- when an organization is not directly affected by government policy or legislation
but that they feel is unconstitutional, when can they sue in the public interest?

Canadian Council of Churches v. the Queen( Old public Interest

Standing – Test)

Facts:
- The complaint made by Canadian council of churches re the changes to
immigration legislation that applies to refugees (eg, how quickly refugees could
be removed from the country if the screening process viewed their claims as not
credible) that it violated many charter rights, did not provide sufficient due
 process from refugee claimants, provisions state that refugee laws need to be in
accordance with natural justice principle protected under section 7 of the charter
- b/c refugees could be removed so quickly, it could be hard for these refugees
directly affected to challenge the legislation
- so assert that they should be given public interest standing to challenge the const
of these immigration provisions
- court sets out three pronged test for public interest standing
- 1) serious issue of invalidity
- 2) genuine interest
- 3) alternative means to bring issue before the court  here is problem –
court felt there were other ways that the matter could come before the
court – individual refugees whose constitutional rights who had been
violated by these provisions could try to bring their own constitutional
challenges through judicial review
- there is no need to grant Canadian council of churches public interest
standing in order to accomplish the same thing that they can already do –
have courts decide whether the legislation is constitutionally valid
- so you see that the preference is for private parties to bring litigation
challenging the constitutionality of legislation and Public interest is last
resort
Harris v. Canada ( New public standing test )
- Harris was upset by idea that revenue Canada was providing public opinions as to
whether or not a particular tax structure was lawful that conflicted with
unpublished or private opinions and the private opinions were helpful to
individuals trying to seek and public was not
- Wanted to have attorney general challenge revenue Canada but refused to
- So he wanted public standing interest to challenge the policy that it violated
provisions of Canadian tax legislation.
- Court sets out the test for public interest standing:

- 1. Justiciability  kind of subject matter over which a court can make a

decision ( seldom a problem in these types of cases)
- 2. Serious issue
- 3. Genuine interest – on any issue taxpayer would always have an
interest
- 4. Alternative means to bring issue before the court – unlikely the
attorney general is going to bring this challenge or the ppl who benefited
from it – but court doesn’t get into why it is that somebody negatively
affected on individual level wouldn’t bring the challenge
- Finding: Court applies test less vigorously finding that he meets all the parts
of the test – gives him public interest standing ( no alternative means).
Canadian Bar Association v. B.C ( New public standing test strict
application)
(Regarding provision of legal aid)
- 1 – Justiciability
 - 2 – Serious issue
- 3 – genuine interest
- 4 – alternative means to bring issue before the court
- courts find no standing and dismissed action
- court finds claimant has no problem with respect to genuine interest in provision
of legal aid in B.C
- concern with respect to whether or not there is a serious issue of invalidity
- entire system fails to adequately provide legal aid for individuals outside context
of criminal law  so systemic argument – is system as a whole adequate? Not
with respect to particular aspect of charter
- so court says matters are quite vague – look like the kind of question you’d put to
a parliamentary committee.
- Lack of clear factual scenario
- CBA made argument that they were better placed than individual litigants to bring
these challenges - better understanding of how the system as a whole functions,
of systemic failures in that system etc.
- Court dismisses argument on the grounds that the test is meant to be a strict
test.
- Is there any other reasonable way that the matter could come before the court –
that is the test – not what is the best way.
- Court says CBA should be intervener in lawsuit to provide systemic background
- So wherever possible proceed through individual parties whose interests are
directly affected and bring in interveners
Judy v. White (Navajo)
- quite a divergence between Navajo and Canadian court ideas of public standing
- Navajo  commitment to participatory governance
- Difference in language between the cases  Canadian courts – passages about
how its important courts prevent mere busybodies from being involved in
litigation contrasted with idea of participatory democracy – different conceptions
about the role of adjudicative institutions

Intervention

Intervention : Rule 13 (pg. 614)

- forms of intervention
- (1) Added Party (13.01) (1) – can move for leave to be an added party if
claims:
- (a) interest in subject matter
- (b) may be adversely affected by judgment
- (c)question of fact or law in common
- 13.01(2) no undue delay or prejudice
- if given intervening status - can participate fully -- entitled to participate
in discovery, introduce expert evidence, present documentary interest etc.
(pg 615-617)
 - (2) Friend of the court (13.02)
- limited to making written and oral arguments
- court decides how much of a role – not contribute typically to evidentiary
record.
Athabasca Tribal Council v. Alberta ( INTERVENER TEST)
- Facts
- Company received permit to engage in exploration on the lands in
question
- So Athabasca council brings constitutional challenge to this practice
- CAPP wants to intervene in the process
- Athabasca says CAPP has no direct interest in the litigation b/c
organization itself does not engage in petroleum or mining exploration
- CAPP says the concern over the precedent that would be set by the
litigation does affect them
- Court sets out common law test  “a party should only be granted intervener
status if the party will be directly affected by the ultimate decision and/or
where the presence of the party is necessary for the court to properly decide
the matter”
- Court accepts that although litigation itself only has direct impact on one mining
petroleum company – accepts precedent set will have impact on all members of
CAPP
- So court says CAPP should be granted intervener status and that it will be helpful
for the court b/c they can bring in wider industry perspective

Canadian Blood Services v. Freeman (intervention—WHEN CHARTER

RIGHTS INVOLVED)
- issue – whether or not it is discriminatory for Canadian Blood Services to refuse
to accept donations from men who’ve slept with men
- concern here is that Freeman is not HIV positive – so not able to present the
interests of HIV positive individuals
- so Canadian Aids Society wants to intervene as added party to help contribute to
evidence on which court will make decision on whether or not policy
discriminates against homosexuals
- attorney general takes position that the Canadian aids society should be allowed to
intervene but only as a friend to the court.
- CBS says they shouldn’t be allowed to intervened at all
- Freeman isn’t opposed to intervention
- Court uses Halpern  where it involves a charter courts will give greater latitude
to inerveners
- Court sets out test from Halpern and looks at whether or not the Canadian Aids
society has a direct interest in the litigation and whether or not the society could
make a useful contribution to the litigation
- Test:
- (1) Does proposed Intervener have sufficient, direct interest in this charter
challenge review? -- court says sufficient grounds for friend of court b/c
 they will be able to bring a perspective different from that presented by
Freeman.
- (2) What useful contribution could the proposed intervener make to
proceeding? (court said probably won’t bring new evidence but friend of
the court – new perspective)
- (3) If such interest and useful contribution are established, would the
Interveners involvement either prejudice or delay determination of rights
of parties to the proceeding?
- (4) Is any such prejudice or delay counterbalanced by the useful
contribution of the proposed intervener?
- (5) What terms or conditions might be imposed on the intervention to
ensure that the goals are met of useful contribution without undue delay or
prejudice?
- court says it could always just present info to Freeman – so rather than allowing
them to intervene as a party they allow them to intervene as a friend of the court
and if it wants to have impact on evidentiary record it has to go through the party.

Bouzari v. Iran 2004

- does the SIA prevent Bouzari from suing Iran for torture?
- Concern that Arrar had – represented by extremely experienced council – if court
went negative on Bouzari that it wouldn’t have impact on Arrar
- Arrar is a Canadian citizen so makes a difference.
- In Bouzari there is a sentence saying Arrar’s case is different b/c he was not a
Canadian citizen

Parties Under a Disability - Rule 7 (pg. 584)

- 1.03  Definition of disability
- if they are a minor –under 18 (age or majority act)
- mentally incapable
- absentee
- you cannot adequately represent your own interests in litigation – be
considered party under disability
- 7.01-2  requirement of litigation guardian for Plaintiff
- cannot have interests adverse to party
- must consent
- must get legal representation for party
- must acknowledge that they may be ordered to pay costs
- 7.03  requirement of litigation guardian for D
- for Defendant is appointed through the court
- 7.05  powers of litigation guardian
- all powers a party would normally have on their own behalf
- 7.06  removing litigation guardian
- no longer under disability
- or if in view of court they are not properly representing the interests of the
 party
- 7.07 -8  court approval for default, discontinuance, and settlement
- default – Defendant has not submitted defence on time – cant get default
judgment against party under disability even with guardian without court’s
consent
- discontinuance – plaintiff’s claim cannot be discontinued under disability
unless court consents
- settlement – if party under disability wants to settle they can’t do so
without court consent
- so court plays much more active role in litigation involving disabled
parties in order to protect their interests
- Rules of Professional conduct 2.02(6)  “when a client’s ability to make
decisions is impaired b/c of minority, mental disability, or for some other reasons,
the lawyers shall, as far as reasonably possible, maintain a normal lawyer and
client relationship”
- Obligations to client although you consult with guardian as to decisions
about steps you will take
- Rule sets up possible conflict b/w lawyer and guardian – where lawyer is
of view that something guardian wants to do that is not in best interest of
party – lawyer can try to remove guardian

Limbani (Litigation Guardian of) v. Limbani( stupid doesn’t equal

legal guardian)
- case is about litigation over financial matters -- one of the sons feels that the
mother will be unduly influenced by the eldest son
- second son argues that mother is unsophisticated, uneducated, no English, culture
where she is used to men in life make decisions in her life, can’t understand legal
issues in dispute so he wants to appoint litigation guardian
- issue – mother is not a minor, nor absentee so would have to argue she is mentally
incapable
- so question is – is fact of being uneducated etc sufficient for a finding of mental
incapacity?
- Court sa$ys NO. it is not enough for a party to be unsophisticated, uneducated,
easily manipulated.. disability and mental incapacity is a health matter and these
kinds of cultural, contextual factors do not render this individual disabled.
- No need for litigation guardian in this case.

Counterclaim: Rule 27 (pg. 845)

- general structure – Plaintiff Sues Defendant , D counterclaims against P
- 27.01 – D may assert any right or claim against P (including a claim for
contribution or indemnity – can also counterclaim against P and another person
- 27.02 – Statement of defence and counterclaim (counterclaim included in same
document as statement of defence and it then shall be entitled statement of
defence and counterclaim)
 - 27.03-4 – joining third parties
- 27.05 – statement of defence to counterclaim
- 27-06 – 7 – replies and amendments
- 27.08 – trial of counterclaim (generally at the same time as main claim)
- 27.09 – disposition -- if both claims succeed – set off

Set off
- court of justice act = pg 107, section 111 (under procedural matters pg 251)
- (1) in an action for payment of a debt, D may, by way of defence, claim right to
set off against the P’s claim a debt owed by P to D
- (2) Idem  mutual debts may be set off against each other even if they are of a
different nature
- (3) Judgment for D  where, on a defence of set off, a larger sum is found to be
due from P to D than is found to be due from D to P, D is entitled to judgment for
balance
- set off is common law defence to an action
- cost consequences –usually if you win in an action normally other side plays part
of your legal costs – set off can have impact here.

US Federal Rules of Civil Procedure

- in Ontario the language is permissive meaning that the D MAY bring
counterclaim against P
- in some jurisdictions such as US – if you have to sue P for something related to
the main action you HAVE to proceed by way of counterclaim  can’t at a later
date bring own action independently
- in Ontario, you can.

Cross-Claim – Rule 28 (851)

- general structure – P sues D1, D2, and D1 cross-claims D2(852)
- 28. 01 – D1 may cross-claim against D2 if D2:
- (a) D2 liable to D1 for all or part of P’s claim
- (b) D2 liable to D1 for damages related to P’s claim
- (c) D2 should be bound by determination of issue arising b/w P and D
- 28.03-05: Timing & amendment (pg. 852)
- 28.06: D2 may defend:
- P sues D who injured them and that D is insured by insurance company up
to certain amount. Full amount will exceed what company is obliged to
pay. P sues D and D2 and the D2(insurance company) wants to make
arguments that the first D would be entitled to make
- P v. D2
- D1 v. D2
- P v. D1
- Anytime P sues D1 and D2 could bear liability they are entitled to make
arguments that first D is entitled to make on their behalf.
 - 28.09 – trial of cross claim (855) cross claim shall be tried immediately after the
trial of the main action, unless the court orders otherwise.
- 28.10 – discretion where prejudice or delay (P should not be prejudiced or
unnecessarily delayed by reason of cross claim so court has discretion to make it
separate action where needed

Third Party claim: rule 29: (856)

- general structure – Plaintiff sues Defendant, Defendant sues Third party
(independent claim arising out of the main action)
- 29.01 – when available (almost identical to cross claim rules)
- when T is or may be liable to D for all or part of P’s claim
- when T is or may be liable to the D for an independent claim for damages
or other relief arising out of the main action, or related transaction or
occurence
- 29.02-04 – timing
- Third party claims will be issued within 10 days after D delivers statement
of defence, or at any time before the D is noted in default, whichever is
earlier
- Third party claim can be issued within 10 days after P delivers a reply in
the main action to the D’s statement of defence
- May be issued at any time with the P’s consent or with leave, which the
court shall grant unless the P would be prejudiced
- shall be served within 30 days after third party claim is issued
- third party defence delivered within 20 days after service of the claim
where they are served in Ontario, within 40 days where somewhere else in
Canada or US or 60 days anywhere else
- reply to third party defence within 10 days of service of third party
defence.
- 29.05 – T may defend:
- may defend main action (P v. D) so defend against P’s claim against D by
delivering statement of defence in main action, in which can raise any
defence open to D – has same rights and obligations in main action,
including discovery etc as D, is bound by an order or determination etc
- or D v. T (defend against that)??
- 29.08 – trial of third party claim will occur at the same time or immediately
following the main action
- 29.10 – court has discretion where prejudice to party or unnecessarily delay
proceedings to have T claim at same time as main action
- 29.11-13 – 4th party and subsequent parties

Joinder & Consolidation (564)

Rule 5 –Joinder (permissive v. mandatory)
(Overview top of pg 564 when can have joinder.)
- joinder is that where there are multiple claims, the parties, particularly P may
 bring together multiple claims
- 5.01 and 5.02 sets out circumstances where you are allowed to do so  the
language is permissive – party MAY
- 5.03 – where a person’s presence is necessary in order to enable court to
adjudicate effectively and completely, that other party MUST be joined 
mandatory
Rule 6 – consolidation ( pg. 577).
- if party is entitled to join claims does NOT do so – if you are the other party and
don’t want to be subject to multiple proceedings – you can apply for
CONSOLIDATION ( consolidate two proceedings into one).
CJA (Courts Justice Act) 138 – avoidance of multiplicity of proceedings (wherever
possible)
- Less expensive both for parties and for the court system as a whole
- Not on exam!!!!!!!!!!!!!!

Limitations
Definition: “a limitation period can be defined as a time frame within which a civil
action must be commenced” Janet Walker

Policy rationales for limitations periods

- Certainty (defendants not accountable for outdated stuff – once they weren’t sued
can’t be) she says makes sense for professional but not here no public gain from
allowing incestual perpetrators (KM v. HM)
- Evidentiary (stale evidence)
- Diligence (encourage plaintiffs not to sleep on their rights)
- efficiency (costs reasons)
- changes to common law concern that as time goes on the law changes
(particularly common law b/c legislative changes aren’t retroactive) judges
suggest they are properly interpreting the common law – and not exactly changing
it. So concern is of the retrospective application of common law (applying
today’s common law standards to a scenario that happened years ago when D
wouldn’t know that what they were doing was unlawful)
- cultural changes --- the view of certain types of harm changes over time – so
problematic to apply today’s standards to D’s operating in a different cultural
context

M(K) v. M(H) KM v. HM ( when limitation time will start to run due to

discovery)
Facts
- 1965 – 1973 – plaintiff suffers sexual assault (8-16)
- 1973 – discloses sexual assaults to various professionals (when she was 16)
professionals didn’t take measures to assist her in the way they should have.
 - 1975 – attains age of majority
- 1984 – attends support group and therapy. Realizes she was not responsible for
her abuse and understands effect that abuse had on her life
- 1985 – commences litigation (as a result of support group)
- jury finds that Defendant had sexually assaulted daughter – and assess damages at
50000 dollars
- judge finds case is time barred by limitations period b/c at age of 16 the plaintiff
was aware she had been sexually assaulted and that it was wrong so limitation
period should begin to run at that point.
- OCA dismisses appeal
- Goes up to SCC – becomes leading case on principle of discoverability  once
you are aware of a harm that occurred to you and that harm led to damages then in
principle the limitation period will begin to run.
- Issue  how do we interpret when discovery period should start? When is
Plaintiff in this situation aware of the wrongful acts and the harm she has
suffered.
- Decision
- SCC decides here that although she was aware of it – you have to be
aware of nexus b/w injuries and incest  point at which victim could
link up harm she suffered to wrongful acts.
- Also not sure that she blamed him (blamed herself for a long time)
- Significance
- brought in a reasonableness test into principle of discovery
- you need to look at whether hypothetically reasonable person in the shoes
of the plaintiff would not have been acting sensibly in commencing an
action until such time as that person came to appreciate both the wrong
and the harm.
- So it be wrong to expect them to commence litigation until such time
that they know that they suffered a wrong, and realized the damages
they experienced were b/c of that harm
- SCC also suggests it is time to rework rules on limitations periods in order to take
into account difficult circumstances that survivors of sexual abuse are in.

Novack v. Bond
- Facts
- woman believes she has breast cancer – he repeatedly assures her that
there is no problem – misdiagnosis
- turns out she has serious breast cancer
- she goes into chemo
- has discussion with priest and decides its not the appropriate time to think
about litigation – wants to focus on recovery
- cancer comes back and spreads – much more serious – life at risk and
decides she does want to sue the doctor for professional negligence/
malpractice
- problem is that time limit has expired
 - Issue  2 year limitation period generally in BC but when should this time begin
to run??

Statute of limitations
- 6(4) – “Time does not begin to run.. until the Identity of the D is known to the P
and those facts w/in the P’s means of knowledge are such that a reasonable
person, knowing those facts and having taken appropriate advice, would regard
those facts as showing:
- (a) an action .. would have a reasonable prospect of success and
- (b)the person ought in the person’s own interest and taking the person’s
circumstances into account, to be able to bring an action
SCC identifies 4 possibilities
- broad subjective/objective approach
- whether reasonable P SHOULD bring action
- if in P’s interest – time period shouldn’t begin until it is in their interest
- restrictive subjective/objective approach
- whether reasonable person COULD bring action taking into account
important and substantial interests
- excludes tactical considerations
- when they COULD is when it should run
- restrictive objective
- P generally OUGHT to be able to bring action if LEGALLY CAPABLE
- don’t look at interests – but look at whether it was possible to bring an
action and when it becomes possible is when time starts to run
- Discretionary
- Court looks at policy considerations
Court prefers number 2 (restrictive subjective/objective approach)
- the policy objectives (CE) all take into account interests and fairness to D –
but we have to balance this off with fairness with Plaintiff
- it would be unfair to have limitations period run during times when the
plaintiff could not reasonably have been expected to commence litigation.
- The court looks at if a reasonable person would consider that taking into
account her own unique interests and circumstances, ms Novak “ought to be
able” to bring an action.
- She had interests in going on with her life and not looking back – but when it
became clear that the cancer had come back and she was in fact seriously ill,
that was the time when a person in her circumstances taking account
important and substantial interests ought to take action – that’s when period
should begin to run
Decision – so her claim is not barred by statute
Dissent
- agreed with legal analysis (restrictive subjective/objective test)
- but disagreed with application of test to facts of the case
- said while she was undergoing chemo and focusing on recovery it was reasonable
that she not pursue litigation but if you’re going to allow people in the
circumstances of the plaintiff – many reasons why people choose not to sue – how
 do you differentiate and what if its for years??

Limitations in Ontario
- history – limitations in issue specific statutes
limitations act 2002
- basic limitations period 2 years in Ontario  begins to run when the plaintiff
DISCOVERS the cause of action
- ultimate limitation period – 15 years  begins to run when the act or omission
committed by Defendant actually occurs
- discoverability (s. 5) the basic limitation period will begin to run when the
plaintiff meets a series of conditions – plaintiff has to KNOW:
- (1) that injury, loss or damage had occured
- (2) that injury/loss/damage was caused by the act or omission
- (3) act or omission was caused by Defendant
- (4) having regard to nature of damage/injury/loss - proceeding is
appropriate means to seek remedy
- these four things are subjective (plaintiff has to know them)
- OR
- day on which reasonable person with abilities and circumstances of
plaintiff OUGHT to have known those 4 things
- At that point basic limitation period begins to run
- Court assumes that P knew all those 4 things on the day when the
act/omission occurred. So if you’re the P and you want to say you didn’t
discover cause when it occurred you have burden of proof to rebut this
presumption
- Exceptions to limitations periods
- Aboriginal rights (treaties) – most of the proceedings brought on those
grounds would be timed barred
- Undiscovered environmental torts (s.17)
- Minors and Incapacity – provisions make it possible for plaintiff to get
time to start to run (for minor or person – get litigation guardian appointed
and put them on notice that there is a cause of action)
- Willful deception – if you conceal a cause of action you cannot benefit
from limitations period
- Assault/sexual assault – where person cannot bring suit b/c of
physical/mental/emotional damage – assumption that they couldn’t bring
proceeding before they did.
- Sexual Assault has no ultimate limitation period where D was in position
of trust or authority over person authority
- Cross-claims/counter claims – s. 18 – if P sues D, D can counterclaim and
bring cross claims against other D’s even if limitation period has expired.
 but you can’t get around it by using a third party claim.
- Purchasers or personal property for value (ultimate period is 2 years not
15)
 - Attempts at resolution – neither period runs during that time.  want to
encourage mediation so don’t want to have limitation period which forces
people to stop limitation period
- Other exception – (sections 2 and 15 of the Act)
- Statutory Exceptions
- Private international law – limitation period that applies is the one in the
jurisdiction where the act/ omission occurred.

Hypothetical 1: The walls of a building are negligently constructed by a construction

company. The owner of the building was aware of the negligence shortly after the
construction, but decided not to sue the construction company because the defects were
not initially considered to be serious. However, the defect was more extensive than
expected, and 17 years later the building collapsed. A passer-by was injured during the
collapse.
- If construction company has concealed negligence then ultimate period would
not begin to run until defect is apparent – assuming its not the case though.
- Ultimate limitation period begins when act occurs not harm – so presuming no
willful deception the claim would be time barred.
- Passerby added in:
o they can sue the owner for sure….
o If owner sued construction company – it’s a third party claim – and thus
these remain subject limitations act
- Can plaintiff sue construction company? (passerby)
o Unlikely
o But if you could - then owner would cross claim against construction
company and this is not time barred.

Hypothetical 2: A lawyer is negligent in closing a real estate transaction. As a result the

client, who was a professor at the Osgoode Hall Law School at the time, obtains a
defective title. The defect only becomes apparent when the client attempts to sell the
house 12 years later.
- No issue here of ultimate time period – issue is general time period – when
you discover cause of action
- Subjectively, the professor didn’t know about the act/omission/damages until
the defect became apparent.
- So issue is when would a reasonable person have with the abilities and
circumstances of person with claim – when should that person have known?
- Maybe if you were a specialist you should be held to higher standard – but
you get a lawyer so you can rely on their advice.
- This shows that its hard to work out to what extent the circumstances of
individual plaintiffs will have an effect.

Hypothetical 3: A doctor negligently performs an operation on a patient's 8th birthday.

The patient's injuries only manifest themselves 4 years later, and it is a further 3 years
before the cause of the injury is identified as a negligently performed operation.
 - general limitation period begins to run at 20 – when she is at the age of
majority
- ultimate time period runs out
- normally its 15 years from date of operation but b/c patient is a minor ultimate
time period begins to run when she is 18 = 33
- when P is 15, doctor discovers its their fault – doctor can get a litigation
guardian appointed for patient, put them on notice that there is cause of action
against doctor, at this point both periods will begin to run.
Hypothetical 4: A number of descendents of slaves, both aboriginal and African in origin,
bring an action for unjust enrichment against the crown and several large corporations
with long histories in Ontario.
According to the incest case, equitable remedies do not have a limitation period that
applies to it (it has not been explicitly stated)
- try to say you fall within the exception for aboriginal rights
- descendants of African origin  unjust enrichment – have to identify money
flowing to the crown –
- what is at issue is the failure to make reparations and that failure is ongoing –
crown continuously being wrong then. If this argument is valid you get
around most limitation periods.

Res Judicata
- “the law rightly seeks finality to litigation. To advance this objective it
requires litigants to put there best foot forward to establish the truth of their
allegations when first called upon to do so. A litigant, to use the vernacular,
is only entitled to one bite at the cherry” Danyluk v. Ainsworth
- cause of action estoppel  where a court has adjudicated a claim b/w two
parties, and a second claim is brought with respect to the same parties
involving the same cause of action, the second claim is estopped.
- Issue estoppel  where you have a new claim based on same parties but with
different cause of action where a particular issue has b/w those parties already
been decided in a previous case you are not allowed to re- litigate that
particular point. You are allowed to bring a new litigation for your second
cause of action but if court made factual finding in first one you can’t contest
it.

Res Judicata example 1

- car accident – driver charged and acquitted, he brings action against other
driver to recover damage to his car –
- no cause of action issue
- Potential problem re issue estoppels- Allan was charged with running a stop
sign but was acquitted, but now is Nancy prohibited from saying that Allan
ran the stop sign
o No b/c in crim all that is found that Allan is nto found to run the stop
beyond a reasonable doubt
 o So Nancy should not be stopped from bringing the claim he did
o But if the sit was reversed, and he was convicted, allan can’t argue he did
not run it (that argument would be estopped from putting forward that
arg.)

PLEADINGS
The Originating Process ( pg 630)
Actions v. Applications
- rule 14.01: proceedings commenced by issuing originating process
o either statement of claim for actions or an application

Actions( 631)
- 14.02 – default procedure (every proceeding shall be by action except where a
statute rules provide otherwise)
- 14.03 – statement of claim (commence action by issuing statement of claim)
statement of claim sets out factual allegations (no case law cited)
o can also issue notice of statement of claim if no time – and then have to
issue statement of claim within 30 days
- stage 1 – parties will exchange pleadings
- stage 2 – parties exchange evidence
- stage 3 – full trial
- take a long long time

Applications (info on pg 636-637)

- since actions take so long, applications are available as another option for
certain set of exceptions
- 14.05 (2-3) – exceptional procedure
o specific scenarios READ THIS PROVISIONS (pg. 634)
o 1) if statute authorizes or 2) if:
o (a) opinion, advise or direction of court on a question affecting the rights
of a person in respect of administration of estate of a deceased person or
execution of a trust,
o (b) an order directing executors, administrators, or trustees to do or abstain
from doing any particular act in respect of an estate or trust for which they
are responsible
o ( c) the removal or replacement of one more executors, administrators or
trustees of fixing of their compensation
o (d) determination of rights that depend on interpretation of a deed, order in
council, regulation or municipal b-law or resolution
o (e) approval of an arrangement or compromise or approval of a purchase,
sale, morgate, lease or variation of trust
o (f) injunction, mandatory order or declaration or the appointment of a
 receiver or other consequential relief when ancillary to relief claimed in a
proceeding properly commenced by a notice of application;
o (g) for a remedy under the Charter or
o (h) in respect of any matter where it is unlikely that there will be any
material facts in dispute
- generally speaking they are used in scenarios where there are no facts in
dispute – and only issue in dispute is a legal issue
- applications are expedited procedures that don’t lead to full trial
- 14.05 (1) – notice of application (originating process is notice of application
or application for a certificate or appointment of an estate trustee)
- 38 and 39 – expedited procedures and evidentiary rules (no testimony, no
discovery, just paper evidence like affidavits) (1022)
- if an action takes 2 – 3years – an application can be decided in a month.
- 38.10 – conversion to action (if person brought application when they should
have brought an action)
o if a full trial is needed (factual issues in dispute) the court can convert the
application to an action.

E.J Hannafin Enterprises Ltd v. Esso Petroleum Canada (1994)

(fragmentation of proceedings and application)
- two separate agreements – one main one about leases – H is leasing land to
Esso who is subleasing it back to H – H has right to exercise option to
purchase equipment but only if it is not in default
- second agreement relates to supply of gas – Esso alleges that H is in default
on Supply agreement not on lease agreement
- so issue is, in the lease agreement, which says can’t exercise option to
purchase if in default – does this mean only with respect to lease agreement or
to all set of transactions
- Hannafin brings an application saying it wants a declatory judgment – issue of
how to properly interpret default – asking court to declare that default on
supply agreement has no bearing on lease agreement
- Esso says there is a factual issue in dispute and thus the application should be
converted into an action
- Court says that it is possible to split the proceedings – rather than having one
proceeding which will finally determine everything b/w the parties, they are
going to allow the issue of the property interpretation of default under main
agreement to proceed through application and only if it turns out that Esso is
right will it proceed to trial
- So idea is that if H is right you can dispose of issue without having extended
trial.
- Significant decision b/c there was a substantial line of cases that says you
should not fragment proceedings
- Court initiates test for when fragmentation is possible:
- 1)is end result to enable parties to process their dispute more expeditiously
and efficiently
 - 2) are there any material facts in dispute with respect to the fragmented issue?
o If there was a factual dispute as to how to properly interpret default in the
main agreement, fragmentation would have been inappropriate
- 3) is there a reasonable prospect that the resolution of the fragmented issue
will resolve the full dispute b/w the parties.
- Previous case law said only time you can do this is when its CERTAIN that if
you resolve that issue the whole dispute would be resolved  now only has to
be REASONABLE PROSPECT

Service ( of originating process)

rule 16: Service within Ontario (665)
- 14.07 – 8 – issuing originating process and timelines – you write it up and
take it registrar of court asking them to stamp and sign it. You then have 6
months to serve the application or statement of claim to other party
- 16.01(1) – service of originating process – has to be served personally
- 16.02 – personal service – have to actually hand it to the person - rules about
whether D is corporation or government etc. (someone does it for you)
o Individual (unless have disability by handing to them)
o Municipality  with chair, mayor, warden or reeve, with the clerk or
deputy clerk or with lawyer for municipality
o Corporation  with an officer, director or agent or with a person at any
place of business of the corporation who appears to be inc control or
management of the place of business
o Board/commission  with a member or officer
o Person outside Ontario carrying on business in Ontario  with anyone
carrying on business in Ontario for the person
o Crown subsection 23 of Crown Liability Act
o AG  with a lawyer in Crow Law office of Ministry of AG
o Absentee with absentee’s litigation guardian or Public Guardian Trustee
if no litigation guardian
o Minor  with litigation guardian (if appointed) or with minor and another
copy with parent or guardian
o Mentally incapable  guardian /attorney
o Partnership with any one or more of the partners or with a person at the
principal place of business
o Sole proprietorship -_> with sole P or with person at principal place of
business
- 16.03 – alternatives to personal service
o provides particular scenarios where you don’t actually need to serve the
originating process in person – you can provide the originating process to
the defendant lawyer assuming they are prepared to accept the service –
can send it by mail – but it will not be considered served until such time as
you get a receipt saying they received it. If you serve the claim on D’s
 lawyer and lawyer doesn’t forward it on to D, they can say they never saw
it so want it to be set aside - so always a danger when you use alternatives
- 16.04 -- Substituted service or dispensing with service – go to court and ask
them to give you exception from requirement to personally serve documents –
court can dispense with personal service or substitute where appropriate 
still have 16.07 problem – D can still come back with well wasn’t made aware
etc.
- 16.01(3) service of documents other than originating process – for all other
documents, if document is sent to contact information its assumed that you put
on notice of those documents – so once you personally serve Originating
process other documents are assumed to have been received.
- 17 – service ex juris

Responding to Originating Process

18 – statement of defence (708)
- timelines for how long you have to serve your statement of defence – 20 days
if served in Ontario, 40 days if elsewhere in Canada, 60 days if outside of
Canada.
- You can extend the deadline by further 10 days by issuing notice of defence
25.08 – replies (826)
- A reply is a response by plaintiff to statement of defence
- Where defendant puts forward affirmative defence – raises duress – plaintiff is
entitled to respond/reply to facts set out in affirmative defence
- Deemed denial of all facts if no reply
25.04 (3) – 10 days to serve reply

Default Proceedings
Rule 19 (710)
- 18.01 – timing (20/40/60)
- 19.01 – noting the Defendant in Default (plaintiff notes Defendant in default if
the 20/40/60 has passed)
- 7.07 – party under disability (can only be noted in default with leave of a
judge which will be served on litigation guardian and the lawyer)
- 19.02 – consequences of noting D in Default
o D is deemed to admit the truth of all allegations of fact made in the
statement of claim
o D prohibited from taking any steps in proceedings other than bringing a
motion to set aside the notice of default
o Action can be taken without consent of D in default (where normally
would need D’s consent)
o D not entitled to notice of any step in action and need not be served with
any document in action except where court orders otherwise or where
party requires the personal attendance of D
- 19.04-7: Default Judgment
 o ask registrar of the court to sign a default judgment based on the D being
noted in default (only in restrictive circumstances – where the claim
involves a liquidated demand – where there is a set of money where
amount of money is not in question and where asking for recovery in
property)
- 19.05 if you don’t fall within these circumstances you have to bring a motion
to the court (19.05) and you have to support your evidence based on affidavit
evidence. Judge may order trial on particular part of the issue (on extend of
damages for example) but trial is conducted in absence of defendant
o assuming all the facts are true, court asks whether or not plaintiff is
entitled to damages
- 19.03 and 19.08 – setting aside notice of default or default judgment
o where it is just the court can set aside the motion or default judgment – so
you have to look at case law to figure out whether or not the court will set
aside notice of default or default judgment

Martosh v. Horton (2005) [ setting aside default judgment,

substituting personal service.]
- D allegedly sends defamatory email causing the Plaintiff damages – so P
wants to sue D for defamation
- P wants to serve D through process server – who gets in touch with D who
asks where they can meet etc. – D resists service (alternative to service –
substituted service) D says send it to my workplace
- P goes to court and requests a motion for substituted service – this is granted –
P then serves the D by mailing the statement of claim to the defendant at the
D’s workplace – arrives at workplace – letter is opened and re-sealed and
marked returned to sender.
- D does not issue statement of defence so plaintiff notes D in default and then
obtains default judgment against D.
- Once D has default judgment issued against him – he realizes he has a debt –
brings motion asking court to set aside default judgment and notice of defence
on the grounds that the default judgment was improperly obtained.
- * case shows you an example of the court allowing substituted service
specifically in the context where you have D trying to avoid personal service
- on issue of whether default judgment was properly obtained court has to look
into whether default judgment was properly obtained – have to know if
statement of claim was properly served
- two step process:
- 1) was the statement of claim properly served? (default judgment properly
obtained)
o court says its not sure if it would have allowed claimant to proceed in this
way, but the court did allow substituted service and so it was proper
- 2) court has discretion to (even when default judgment was properly obtained)
to set aside default judgment
o 3 part test:
 o 1) whether or not default on part of D was intentional (whether D has valid
excuse) here court says no – he opened it – he had email exchange with
process server – knew he was being sued – and its unreasonable for him to
argue that he didn’t receive the letter so no valid excuse
o 2) was motion to set aside default judgment brought in a timely manner?
Here this is not a problem – he did bring this motion right away.
o 3) does D have a defence on the merits? Not is there a factually supported
defence on the merits (this is a motion to set aside default judgment so no
testimony) rather the court is looking at whether on the allegations set out
in the motion brought by the defendant, assuming that the allegation set
out in the motion are true, does the defendant have a good defence? Here
the court says he does not.
Lenskis v. Roncaioli ( test for setting aside default judgment not
strict)
- criminal interaction – Lenskis says she lent Defedant some money that D was
going to use in connection with purchasing contraband cigarettes for
convenience store
- P brings proceedings against D to recover debt that D owes P
- D enters into settlement agreement but doesn’t pay up.
- P brings action to recover on the settlement May 1986
- D doesn’t issue statement of defence so defendant defaults
- Several years later D wins lottery and so now the P notes the D in default and
seeks a default judgment which was granted
- Issue is should court use discretion to set aside Default judgment?
- Defendant says that she has valid defence to the action which is that she was
unrepresented when she settled, she was under duress b/c she was trying to
hide the criminal transaction from husband so P was blackmailing her and was
taking severe medication so this is her defence
- Court in asking itself whether it should use discretion looks at the 3 part test:
- 1) does the Defendant have a valid excuse for the default? (no evidence of
why D had defaulted) probably b/c had no money – not sure if this would be
valid defence under this part probably not
- 2) did Defendant bring motion to set aside default judgment in timely manner?
(Yes)
- 3) Is there an arguable defence to be made here – court says no. Even if the
facts are true this is not the kind of case sufficiently strong to justify finding of
duress for example. No valid defence.
- Court says that the rules for this test should not be applied in a strict manner –
you can always compensate a plaintiff who has a valid claim against a
Defendant who defaults – that Plaintiff can be compensated for extra costs of
having to go through default judgment. Because of this compensation through
costs possibility, large body of case law says that the court should not apply
rules of default judgment strictly. But here there wouldn’t be any injustice to
an innocent party in allowing this default judgment to stand.
- Discussion of doctrine of latches  the P did not move forward in a timely
 manner – P didn’t note D in default or ask for default judgment for 6 years.
Argument is that P slept on her rights and shouldn’t be able to exercise them
now. Principle of equity. Court here says that it would be inappropriate to
rely on that principle to deprive P of right to default judgment
- Issue – court is effectively rewarding the plaintiff for money that the P was
trying to get in a transaction with D that was unlawful
- Question -- how long can you wait before acting on defaults??? This is way
beyond 2 year limitation period – policy reasons for limitation act should
impose some limit on how long you can wait after default before noting P in
default.

Recall: Beals v. Saldanha (florida) ( enforcing default judgment in

Ontario from Other jurisdiction)
- D declined to defend action against them in Florida b/c they thought they were
only exposed to a few thousand dollars worth in liability so not worth time in
defending action
- Plaintiffs did bring action to enforce default judgment in Ontario against
Defendant
- Defence of fraud – default judgment obtained in fraud in Florida – amount of
damages was significantly exaggerated. Court said the issue of fraud on the
merits should have been brought forward in Florida through motion to set
aside default judgment in Florida.
- Defendants said they were denied natural justice b/c rules about Default
judgment in FLA are different than in Ontario – more protections for D’s
noted in default in Ontario
- Court says that differences across jurisdictions are not in and of themselves
problematic. In order to demonstrate denial of natural justice you have to
show that either you have not provided adequate notice or you did not have
the opportunity to defend.
- Defence put forward regarding public policy – would be against public policy
to enforce large damages awards from other jurisdictions. Court says no.

Purposes & Mechanics of Pleadings

Purpose of pleadings
- to identify issues at dispute in the litigation – this is important b/c if the
pleadings identify what issues are at stake a number of things flow from this:
parties are put at notice of issues – they know what evidence they’ll need etc.
- To define the issues at dispute – mechanism through which parties accomplish
this.
- Clarification of issues so that they can identify what facts they will have to
prove. – so you can focus the resources on the facts needed.
- Pleadings act as a record of what issues have been resolved through the
litigation
- Advocacy – first occasion of where you are putting together a document that
the court is going to read so opportunity to set out your version of the facts
 and get case off on right foot.
- Notice pleading versus material fact pleading
o Notice: all you have to do when you prepare statement of claim is set out
the issues in dispute – example – case involving breach of contract.
o Material fact – you need to know more at outset – but this allows
discovery stage of litigation to occur much quicker.
25.06 – statement of claim: you have to set out the precise relief that is being requested in
damages (815)
- You have to set out all of the material facts
- You set out points of law – only if they are supported by the material facts
- Set out any conditions precedent
- Claim for relief.
Statements of defence (18 and 25.07)
- Rule 18 – how long you have to serve the statement of defence (708)
o 20/40/60 after service of statement of claim (Ontario, Canada, World)
- 25.07 (825)– any factual allegation made in the statement of claim that
defendant does not dispute is deemed to have been admitted (u can no longer
make argument in court to dispute factual allegation)
- 2 ways of disputing allegation
o deny the factual allegation
o plead no knowledge regarding the factual allegation (that leaves it open
for you to later lead evidence that it is intrue)
- 25.07.3 – not enough to make a blanket denial of all allegations
Replies (r.25.08-09) (826)
- A plaintiff has to file a reply if they want to allege facts that are relevant to statement
of defence that has not been brought up yet

- If all u want to do is deny facts asserted in defence, u don’t need to reply, it is

assumed u deny all facts, only file reply if u want to introduce new facts

Request for particulars (r.25.10) (827)

- Either the plaintiff or the defendant can request more details about particular
allegation, the counsel requesting particulars makes request to opposing counsel, if
they do not provide it then can go to the court to ask

Close of pleadings (r.25.05) (815)

- Pleadings are closed when

o (a) the Plaintiff has delivered a reply to every defence in the action or the time for
delivery of a reply has expired; and

o (b) every Defendant who is in default in delivering a defence in the action has
been noted in default

Amending pleadings (r.26) (833)

- pleadings can be amended before the close of pleadings without permission, in
 addition pleadings can be amended on any time with consent

- the court will only grant leave on terms that are just when no prejudice to the other
party

Copland v. Commadore ( test for when you can ask other side for
particuliars of info in the pleadings).
• Case of wrongful dismissal, issue is what needs to be included in the statement of defence

• Commodore (D) is making all these claims for firing Copeland (insubordinate, permitted
excessive cost), but Copeland says he was not given evidence about this and is requesting
particulars to support those factual allegations

• P is asking for further and better particulars, and D is refusing to give those particulars,
so P goes to court

• Test for when particulars should be ordered:

o the particulars are justified where the details are necessary to enable the party to
respond to the attacked pleadings

o The particulars must not be within the knowledge of the party making the request

• But the courts rules before u get to the issue of particulars, u have to look to substantive
adequacy or regularity, are the pleadings substantively adequate, do they set out, relevant
allegations? if yes and u just need more details re the allegation that’s were particulars
come in

• If the allegations is not adequate or allegation not regular/ sufficient, u don’t ask for
particulars, rather u ask to strike out the allegations

o So they should strike out the irregular/ inadequate allegations from the statement
of defence and the plaintiff should be allowed to change his statement of claim
accordingly

• This case shows interaction between substantive adequacy and request for particulars

Whitten v. Pilot ( puntative damages when not requested in

Pleadings)
• Whiten succeeds in convincing a jury that Pilot insurance is taking all these measures to
have the case settled for less than they are entitled to under the insurance policy, so the
jury awards whiten to full amount, and in addition to punish pilot awards substantial
punitive damages
 • A couple of issues in this case (including when punitive damages are appropriate)

• What we are concerned with is the facts that Whiten relied on to specifically plead
punitive damages in the pleadings

• So the insurance company comes and says they did not know they were going to ask for
punitive damages

• As a general principle, normally if u were not put on notice re particular type of

relief, the plaintiff can’t at trial request that relief

• In this case the court does not accept this argument from pilot insurance, it’s about
conduct, not the damage, they should have been on reasonable notice this was a
possibility

• We see the pleadings in principle set the boundaries for the litigation, although they
have some discretion

• This if u make unsubstantiated allegations, you are an open litigant up to punitive

damages

MacDonald Construction Company v. ( need to plead argument with

sufficient detail) (Policy reasons for amending pleadings).
• The plaintiff’s stuff was damaged by fire, the owner of the building hires a lawyer to
recover money from insurance for the fire

• The solicitor does not bring an action in time, the action is time barred, so now the owner
wants to sue the lawyer

• The lawyer initially takes the position that he was not properly retained (in the pleadings
everything is about whether the lawyer is properly retained)

• At trial the lawyer makes an alternative argument

• Even if he was negligent in missing the deadlines, there are no damages as property was
vacant on the day of the fire so not covered by the insurance plan

• The issue here is given the defendant had failed to properly plead the issues of the
plaintiff not being entitled to recover from the insurance company, whether it was
appropriate for the defend to now at this late stage to make the argument

• First Defendant tries to say this argument was implicit in the pleadings, so the P should
have been on notice (based on vaguely worded phrase about being no damages)

o The court does not accept this argument, the lawyers argument re insurance
policy was not pleaded with sufficient detail

• Then the next issue is, whether the lawyer can then amend the proceedings to add it
 in, even though it was not presented in the pleading

o The court says u can, but they basically have to start again, both have to amend
pleadings, have to go through discovery again, significant delay the trial

• Policy consideration for starting again

o On the one hand, Don’t want to needlessly extend litigation, don’t want to
prejudice P who did not do anything wrong

o But on the other hand, the defendant may have a valid legal argument

o but all the costs of the proceedings will be on the defendant, even regardless of
the outcome

o U see the court is generally flexible about amending proceedings, but there are
consequences for errors in pleadings

Lammie v. Belair ( consequences for asserting facts that cant be

proven)
• Allegation that insurance company was trying to lowball the plaintiff

• They could have settled but because the lawyer took it personally they did not, and went
to trial, they had to pay costs

• Lou Farrow, the lawyer, is known as a very assertive lawyer who is of the view that
insurance industry has developed a whole set of procedures to prevent ppl from getting
money they are entitled to

• Litigation starts off as very straight forward, normal

• Rather than going into regular negotiations about settling the dispute, Lou Farrow brings
forward pleadings claiming insurance companies in general and Belair act in particular
are acting in bad faith

• In addition to the claims, the litigation was very acrimonious

• The concern is that Lou Farrow has lost his objectivity in the courts view

• He has ceased to be a lawyer advocating for the client, instead he is a partisan Putting
forward his case at the detriment to the client

• in the end Belair wins and this case is about who has to pay costs

• the lawyer for Lammie (even though belair wins and Lammie looses

• that is unusual because usually the person who wins gets awarded costs, the looser has to
 pay

• one of the factors the court considers is the fact that Farrow lawyer put forward all these
unsubstantiated allegations that belair was acting in bad faith on the insurance contract,
how should this be addressed

• the court notes that its quite common for parties to commence actions with pleadings that
are unsubstantiated, why would that be? This is because u think something, but u cant
prove it, but I still want to be able to try and prove it later

• in the end the cost reward made on full indemnity basis (largest cost award u can get) to
Lammie (lammie had to pay costs)

o but there was discussion however whether the lawyer was required to bear the
costs in this case, not the party, b/c it was his negligence

• this case shows how pleadings assist the parties in narrowing down the facts that are
in dispute, and that there are consequences if u assert facts that cannot be
established in evidence (high cost award was rewarded to discourage that)

US Federal Rules of Civil Procedure ( have to certify pleadings unlike

Canada)
• RULE 11: …By presenting to the court a pleading…. an attorney… certifies that to the
best of the person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:

• (1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;

• (2) the claims, defenses, and other legal contentions are warranted by existing law or by a
non-frivolous argument for extending, modifying, or reversing existing law or for
establishing new law;

• (3) the factual contentions have evidentiary support or, if specifically so identified, will
likely have evidentiary support after a reasonable opportunity for further investigation or
discovery; and

• (4) the denials of factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on belief or a lack of information.

o Lawyers in the US have to certify that pleadings meet certain conditions, have to
certify that the fact allegation constrained have evidentiary support, or that
evidentiary support should be possible for further investigation (lawyers don’t
have to do this in Ontario)
 o Should there be a rule like this in Canada? Not ness b/c we have other sways to
deal with this

 Eg through rules of professional conduct that says cant bring forth

false arguments

 Also we deal with this through cost awards (given to lawyers who do this
misconduct (the US does not have these cost rules)

Miguna v. Ontario ( flexibility in Amending pleadings)

• Miguna was practicing in immigration law, arrested for sexual assault, at the end he was
acquitted and brought a bunch of actions against the crown for malicious prosecution

• They were saying there were a bunch of causes of action that did not exist

• Question should he be allowed to amend the proceedings when there were so many
problems with them (no detail for fat allegations, bring cause of actions that don’t exist
ect.)

• The defend in the case brought an action to strike the pleadings

o There had been not only misrepresentation to the court (re what the crim trial
judge stated about his chances of civil) there had been multiple actions brought
that were not subs or existed

• The court of appeal noted that the pleadings are problematic (that he has listed so many
causes of action, not really substantiated them that they are unprofessional, that they are
light on facts)

• But they go on and say that although there were issues which his orig pleadings, they
should have allowed maguna to amend the pleadings

• The idea is that in princ if the main things about his story were true and substantiated,
then he might have at least some valid causes of action, and he should be allowed to
attempt to put together proceedings to subs those causes of action

• Court articulated test for when should allow plaintiff to amend proceedings”

o The pleader should not be punished for prev misstatement or serious false
allegations, rhe test is whether the amendment can properly be made without
prejudice to the apposing side

• Here the court says there would be no prejudice to the defend in allowing the plaintiff to
amend the proceedings, but there could be cost consequences for maguna

• Note: Interestingly, even though he wins on the court of appeal. Normally he gets costs
 for court of appeal, he does not get costs b/c of the indulgence granted to him by the court
(they re clearly not happy with him)

Spirito Estate v. Trillium Health Centre (2008) ( when person not

correctly named in pleadings)
• This was a malpractice suite, from the estate of the person who dies,

• the problem is they did not know who the doctors were, so they named unnamed doctors
in the pleadings

• With discovery they found the names of the doctors and wanted to amend the pleadings
to include the doctors

• But It says in limitation act u cant get around limitation period by adding a party,
but where a party has been misnamed, that exception does not apply

• The question in this case is, is this an issue of misnomer or are they trying to add a
part

• Para 12 of the case articulates the test for misnomer:

o How could a reason person…. if the defendant says u must mean me, then it
is misnomer, if the defend says u (get actual test)

• in this case the court says this looks more like misnomer than adding a party, as the
doctors would have been aware by the hospital that they were being sued, and the doctors
give not give any evidence to the contrary

• since this is misnomer, it allows the plaintiff to amend pleadings to change the
unnamed doctors to these doctors

• One interesting thing about this case is regarding the trustee act… puts an upper limit on
time to bring an action on these kinds of actions (this is what causes the time bar

• If u set aside the trustee act issue… and assume, would this claim be time barred

o No because of the discoverability clause, limit period does not being to run until
discovery (knowing the defend response for the act that cause harm to u)

Abdelrazik v. AG (
• He was on UN no fly list, and b/c of this could not get passport to get on plane to come
home

• He sued the attorney general to allow him to get in

• He won, the court Found the govern breached section 6 right of the charter

• Now he brings civil suit back in Canada against government (he is suing based on section
 6 of the charter, and section 7 and for a couple fo other reasons.. there are some serious
allegations of misconduct by officials in the statement of claim

• The govern basic seeks to strike out the vast majority of the statement of claim (say most
of the actins are not recognize in law, they are seeking further and better particulars) if
they are success in the motion the case will be converted from large set of legal issue, to
simple legal issue of is Abdelrazik entitled to compensation for breach of his section 6
right

• Different court has already found as fact that govern breached his section 6 rights, that’s
why the govern is not seeking to strike out that issue, if it did seek to raise it would be
prohibited by estoppel (res judicata)

• The govern also makes the argument for more particulars- The government is saying u
have not given facts to prove allegations so they could respond for the claim, but the
govern has refused to give him those facts/ evidence for national security reasons

• The level of fact detail u can apply has to be measured against ability to get evidence in
your particular situation (because statements of claim are given before discovery)

MOTIONS---- r. 37 & 39
• Motion- Procedure through which a party goes to a court and asks the court to rule on a
matter when that ruling is not the final disposition following a trial

• Couple of diff scenario where motion might be brought

o Where one party raises the issue of compliance (where they do not do something
they are required to do under rules of civil procedure

o Where a party seeks court permission to take a procedural step that requires
authorization (eg. Motion for service ex juris, changes to deadlines)

 Contested motion vs. motion on consent

o Where a party wants to raise a legal or factual issue in the action before trial

 Includes motion for sum judgement and motions to strike

o Where party seeks interim relief, the party asks the court to do something to
protect their interest pending the ult result following trial

• General Rules Governing Motions: r. 37 & 39

• The way u bring a motion is by issuing a notice of motion (rule 37.01) (999)
 • Must be served at least four days before it is heard

• Poss to dispense with notice and have the motion heard in the absence of the other party

• Content of a motion has to specify the relief being requested, have to set out the
argument in sum form in favour of the court granting a relief requested, and have
to include list of documents that are going to be relied upon

• If a motion is uncontested there will usually not be a hearing on the motion

• If the motion is contested then it will be heard in court, oral hearing, rule 37.12 (1011)

• rule 39 covers the type of evidence that can be presented in motions (1031)

o Usually put together affidavit from the parties they will present, list of facts they
are alleging

o The court will generally make decision based on those

documents

Motions for Interlocutory Relief: CJA s. 101 R. 40

(CJA pg 213 s. 101; r. 40 pg 1046)
• The most common form of motion is MOTION FOR INTERLOCATORY RELIEF (CJA
s 101 and rule 40) Asking the court to protect ur interest in the litigation pending the
outcome of the main action, court of justice act, section 101, auth the court to issue a
mandamus (mandatory order- injunction where one party is required to do or to refrain
from doing something, section 101 of the justice act)

• Rule 40 sets out procedural rules with regard to interlocutory relief

o Some sections following set out rules for specific types of interim relief

o There is a tension in all requ for interlocutory relief, the reason we have that
relief is to protect the rights of parties pending the outcome of litigation

o On the other hand, it is something that is heard at a very early stage of litigation
before all the facts are available in front of the court

o They are beign asked to grant interim relief without access to all the facts

o There is a concern that all facts aren’t there that would allow the court to make
determination

o Also concern about prejudging the substantive merits of a case

• Tension between protecting rights of parties in the interim, and not

 prejudging the outcome

RJR Macdonald Inc. v. Canada ( sets out test to grant interlocutory

relief)
- wanted to appeal to SCC on the merits but in the meantime wanted SCC to
order that the legislation requiring them to put warning labels on their
cigarette packages would not apply to them pending the decision of the SCC
and even if the SCC upheld the constitutionality of the legislation, there
should be an exemption of the application for 12 months after the SCC upheld
the constitutionality of the legislation
- so asking for interim relief pending the outcome of the legislation and for
suspension of the application of the legislation for one year
- SCC sets out a test for when interlocutory relief is appropriate.:
- 1) Serious question to be tried  must be established by the party seeking
relief. Here the court draws on American cases and asks itself what the
appropriate standard is – should it be high or low? High standard would have
to demonstrate that you are more likely than not to be successful. Here they
determine that if the matter is not vexaciou or frivolous – is a valid case –
you will meet this part of the test. So they they go with a low threshold –
there are exceptions though where granting the relief would effectively
amount to a final determination of the issues. Example – abortion case –
granting or not granting injunction would effectively dispose of litigation – in
those circumstances SCC suggests that it would be appropriate to impose a
higher test where the court would evaluate the substantive merits on the
motion. Another exception is when they are looking at cases of constitutional
validity or legal matter.
- 2) Irreparable harm  party must establish that they would suffer irreparable
harm if they are not granted interlocutory relief. Mere financial damages will
NEVER constitute irreparable harm b/c you can always be compensated by
them at a later date. So you have to show something that cannot be
compensated by damages relief. Example – you will go out of business,
suffer market loss. Exception – where it is not clear that the party would be
compensated for damages you can establish irreparable harm. Idea – it is not
the scope of the damages but the nature of the damages that you suffer. If it is
not possible to be effectively compensated you can establish this part of the
test.
- 3) Balance of inconvenience  have to establish that the harm that you suffer
is more than would be by other party or public at large if you are granted
interim relief. In constitutional cases (legislative validity) a key question that
is going to have to be asked has to do with the public interest in having
government legislation enforced – taking into account the public interest in
having government legislation enforced – presumption is in favor of status
quo  the application of the legislation. If cigarette company is right that
right to freedom of expression is violated – there is something problematic
 about giving effect to legislation which impinges on freedom of expression.
(public interest)
- court notes that there is a difference b/w party asking for exemption for
legislation and a party asking for the complete suspension of a piece of
legislation. Test for balance of convenience when dealing with suspension
will be higher.
- Applying the test to the facts of the case:
o Court says that dealing with big tobaccos (lots of money), the fact that
they will be out 30-50 million is not a huge deal in light of the money they
make. Financial interest is not that significant.
o Public’s interest in protecting health of Canadians is serious.
o Court says therefore that the balance of convenience favors the
government and ensuring tobacco companies cannot exempt themselves so
interim relief is denied.
- **importance of this case is the test.

Ex Parte Injunctions ( test for Ex Part injunction: standard high)

(in the absence of the other party) (specific type of IR)

Robert Half Canada Inc. v. Jeewan (2004)

- Robert Half Canada wants to prevent former employees for working for the
Lanic group – competing hedge hunting firm.
- Bring motion ex parte – succeed – get order from court preventing former
employees from sharing secrets with new employer of Lannik group. Order
requires that employees refrain from breaching confidentiality.
- Order was initially granted.
- Rule 40.02  a successful motion for an ex parte injunction is only granted
for 10 days. If you give an ex parte injunction to one of the party’s the other
party is made that there is an ex parte injunction. If they want to continue it
longer than 10 days must bring motion to continue it and this motion will be
contested motion (both parties there)
- So rule 40.02 makes it possible to protect the interests of the plaintiff in
situations where putting the other party on notice would have serious
consequences for the moving party but also protects interests of party not
present by putting a time limit on it.
- Special obligation on parties who bring ex parte injunctions. This
obligation is to provide full and frank disclosure of all material facts. If
you bring an application for an EP injunction and you do not disclose all
the material facts, the court will likely refuse to extend the injunction.
- In this case – the second party alleged that not all of the facts were properly
disclosed. They also alleged that this was not an appropriate case for an EP
injunction.
 - Court suggests that there are 2 scenarios where EP injunctions ought to
be granted: where if you give notice to other party it will frustrate your
rights.
o Antem pillar
o Miraver
o Idea is that where the plaintiff wants to access property and has
reason to believe that the defendant will take measures to destroy that
property, the P can be awarded an Antem pillar award.
o Where matter is extraordinarily urgent and there is no time to give
notice.
- EP injunctions are exceptional – they are fraught with potential for injustice
(due to importance of adversarial system) so there is a STRONG presumption
AGAINST proceeding EP. So moving party has to show extraordinary
urgency and bears burden of proof to establish that they would be seriously
prejudiced.
- In this case court says that this matter was urgent to one of the parties –
potential consequences in terms of market loss here if the employees had
access to info about business models/contacts – so urgent from moving party
perspective, it was not SO urgent that the lawyers from moving party couldn’t
get on phone with others to say that they were going for motion for interim
injunction
- So even if urgent – unless other party knowing would frustrate interests – you
have to try to tell other party.
- So court refuses to continue injunction beyond 10 days. If moving party
wants new injunction will have to get new motion date and argue it on the
merits.

Canadian Council for Refugees v. A.G (Canada)

- CCR are of the view that an international agreement is unconstitutional
(violates rights of refugee claimants) this is the Canada-US safe third country
agreement  any refugees who come to Canada via land border with U.S will
be turned back at the border and told they have to make refugee claim in U.S
and vice versa.
- Alleged violation of the constitution is that there are people who would
qualify for refugee status in Canada but not in the U.S and so turning them
back at the border violates their right to life, liberty, and security of person
protected by s. 7 of charter
- Does the CCR have public interest standing to sue the government??
- Tried to get Public interest standing – courts said no b/c don’t meet
requirement that you have to show there is no other viable means that matter
could come before court  court said refugee claimant could bring matter.
- What does the individual RC do though b/c they will be turned back?
- Bring a motion for interlocutory relief asking for stay on removal / application
of this legislation. Try to bring the motion before he comes to Canada.
Problem here is that federal court has said that individual who has not yet
 come to Canada is not yet subject to legislation implementing this
international agreement so they lack standing.
- So if you want to challenge this legislation you have to be in a scenario where
claimant comes to border, is about to be turned away, immediately go to
federal court to make motion – must be EP b/c no time for notice.

Striking Pleadings and Summary Judgment

(both ways of disposing of litigation without going to trial)

Motions to strike
- rule 21 = Determination of an Issue before trial (757)
- r. 21.01 (b)  where statement of claims contains no valid legal claim or
no valid legal defense (bottom of 757)
- court assumes that all factual allegations in pleading being attacked by
motions to strike are true.
- Assuming that all these facts are true and can be proven, is there a valid legal
defense?
- 21.01(2)  no evidence can be considered on a motion to strike (court not
supposed to evaluate whether factual allegations are true) 757
- consequences – Plaintiff successful with making a motion to strike – as
though no defense was filed so the defendant can be noted in default and you
can get default judgment.
- If statement of claim is struck – treated as though there is no statement of
claim (struck) so no res judicata
- In order to produce res judicata – can bring motion to dismiss as part of
motion to strike – plaintiff’s claim does finally dispose of litigation which
produces res judicata -- so can’t sue the Plaintiff for that cause of action
- Statement of claim/defense will be struck but court will give party leave to
amend either or.

Motion for Summary Judgment

- court evaluates whether there is a genuine issue requiring trial
- in a motion to strike if you have a good lawyer who puts together pleadings in
a way that sets out allegations that support a legal claim, even if those
allegations are unsubstantiated you can avoid a motion to strike.
- Unsubstantiated factual allegation necessary for claim or defense to succeed.
If there is no possible evidence for that allegation (no need to go to trial in
order to establish its truth) the case can be disposed of through summary
judgment

***Purpose of motions to strike is to strike out claims/defenses that are NOT valid
assuming all factual allegations are true.

***Purpose of summary judgment is to dispose of issues where factual allegations have

no evidence to support them so no need for trial to determine whether or not those facts
are true.

Jane Doe v. Board of Commissioners of Police for the Municipality of

Toronto ( Can’t strike out claim because of novelty)
- although she was ultimately successful at the time she brought this action
these were not legally recognized torts
- the government brought a motion to strike the statement of claim on the
grounds that it did not disclose a recognized cause of action. (no legal claim,
assuming factual allegations were true)
- the law develops in common law countries by court incrementally changing
the law and if you can dispose of cases at an early stage in litigation prior to
trial on the grounds that there is no prior case law that sustains the claim you
cant have this development. This case reminds of this issue.
- How do you do get rid of unmeritorious litigation at an early stage without
putting a bar to the development of novel claims on the other hand?
- Court sets out a test to balance these concerns:

- Pleadings must disclose a cause of action founded in law but the novelty
of that cause of action is not a problem – have to show you have cause of
action founded in some reasonable legal theory but don’t have to show
that other plaintiffs in similar circumstances succeeded.
- Assume all the facts are true.
- If facts disclose cause of action with some chance of success, this is enough
(don’t have to show that its more likely than not that you are successful)
- Pleadings must be read generously and judges should give pleading benefit of
doubt – burden on moving party to show there is NO chance of success.

Dawson v. Rexcreaft Storage and Warehouse (Summary Judgment

standard high)
- dispute b/w some people who invested in a warehouse project and some of the
banks that financed it – issue about whether or not transactions associated
with it were in compliance with securities act.
- Scotiabank brings motion for summary judgment on the basis that bank was
not aware of breaches of the securities act.
- Court goes through lengthy discussion about difference b/w motion to strike
and summary judgment
- Whether it is plain and obvious that party will succeed. (threshold for
summary judgment is very high)
- Standard remedy where a pleading is defective (doesn’t properly set out
claim/defense) is to give party opportunity to amend pleading
- Motions to strike disposing of litigation prior to trial should be exceptional
 and the preference is for going to trial.
- Summary judgment is a form of quick paper trial where a full trial on the
evidence is not necessary
- Issue is merely is there a genuine material fact dispute? If not, then summary
judgment is appropriate.
- Summary judgment like motions to strike should only be granted in
exceptional circumstances.

Iriving Ungerman Ltd. v. Galanis ( Mere fact that one party will likely
win not enough for summary judgment)
- Galanis said there is no evidence that the deadline was missed and therefore
want motion for summary judgment against the defendant.
- Court has to look at to what degree it can evaluate the evidence on a motion
for SJ
- Court says: to determine whether genuine issue of fact exists, not to resolve
an issue of fact.
- If Galanis is found to be credible, he will win.
- Court says it cannot make credibility determinations on a motion for summary
judgment. All the court can do is determine whether credibility is an issue.
- Assertions are not inherently incredible.
- If there is a genuine issue of credibility issue should go to trial.
- Key: mere fact that one of party’s evidence is much stronger than other
party’s evidence is not relevant.
- High probability that evidence would be rejected is not enough!
- Only issue is whether there is a material fact that ought to be tried.
- It appears likely that Galanis going to win in this case but that’s not enough to
succeed on a motion for summary judgment

Summary Judgment Jan. 1 2010 (Changes) 728 is 20.04

- 20.04 (3) used to say that the court has to look at genuine issue for trial.
NOW THE ISSUE IS: IS THERE A GENUINE ISSUE REQUIRING TRIAL
- so do we actually need a trial to decide factual issue?
- 20.04 (2.1) was added to the rules of civil procedure. This allows the court
on a motion for SJ to weigh evidence, to evaluate credibility and to make
reasonable inferences on the evidence.
- Court is trying to establish whether there is a genuine interest requiring trial.
- Trying to give courts more opportunities to dispose of issues in a summary
manner.
Do the changes to Summary Judgment have an impact on the cases we looked at?
- would the outcome in Ungerman v. Galanis would be different under the new
test?
- If the reason why the court refused to grant summary judgment in that case was
b/c doing so would have involved looking at credibility of witnesses – assertions
as to whether cheque had been delivered then yes the new rules would have made
a difference
 - Its not clear what effect these rules would have had  when looking at credibility
still doing so to determine whether there is a genuine issue for trial.
- The threshold for genuine issue is quite high (have to show that the issues are
something more than spurious)
- Is no genuine issue FOR trial versus REQUIRING trial – not clear the difference
it will make.
- What test will they utilize – will they lower bar and make it easier? Not clear.
- The courts are reluctant to dispose of litigation prior to trial wherever there is
going to be significant evidentiary questions – courts will prefer to resolve issues
through trial.

Papaschase Indian Band No. 136 v. Canada (AG)

- Alberta aboriginal rights case
- Descendants of a number of members of the band who sue the government for
various breaches of aboriginal rights.
- Small band that had reserved in the area covered by treaty 6 (b/w government and
a number of bands) – reservation near Edmonton
- In the 1880s the majority of the band members took script (give up status and
become enfranchised) so lose aboriginal rights and gain other rights in exchange –
including compensation
- Remaining members of the band joined another band (after those ppl took script)
- In accordance with an agreement b/w surviving members of the band – the
government paid the note band moneys from the sale of the papaschase
reservation.
- In 2001 they sued government for wrongfully encouraging ancestors to take
script, for pressuring band to give up reservation, failing to sell the land at fair
market value, mismanaging profit of the sale
- Government brings motion for summary judgment on the grounds that the
statement of claim doesn’t raise any genuine issues for trial. According to
government its b/c the plaintiffs have no standing to bring this litigation b/c there
is no such thing as the Papaschase Indian band under Canadian law (no longer
exists)
- Government also alleges that even if they have standing, the lawsuit is time-
barred by the statute of limitations and that there are no factual issues at stake.
- The motion for summary judgment goes all the way up to SCC where there is a
unanimous decision granting the government summary judgment with one
exception
- Test for summary judgment is high  defendant must prove no genuine
issue of fact requiring trial where D shows the P must act present evidence or
risk summary dismissal.
- You have to put evidence you have available forward or you risk summary
judgment
- Assuming the parties have standing – summary judgment should be granted
b/c limitation period has expired.
- Court notes that the reason we have limitations periods is b/c after a long period
 of time, witnesses are no longer available, historical documents are lost,
expectations about fair practices change, evolving standards of conduct and new
standards of liability make it unfair to judge by today’s standards events that
occur in the past.
- Court says that those policy reasons apply to aboriginal claims. (policy reasons
above)
- Alberta  relevant statute for limitations put in place 6 year limitation period
from the date of discovery
- Court says that these claims may have been discovered back in the 1890s – but if
they weren’t, they were certainly discovered in the 1970s b/c some of the
descendants of this band had consulted with lawyers in the 70s – info was
available and now it is too late.
- So SCC grants summary judgment for most of causes of action
- The exception is the claim for an accounting of the proceeds of sale. Government
has to go through its records and see whether or not it still has any money as a
result of the sale of the reservation and if it hasn’t distributed all that money it has
to set out how it will do so. This claim is not time barred b/c it is a continuing
claim.
- Thins to notice about this case:
o Aboriginal case being disposed of without going to trial (later courts have
said multiple times that this shouldn’t be allowed)
o Whether result would be different if you were in Ontario applying today’s
rules on summary judgment
 Current limitations act in Ontario does not apply to aboriginal
claims involving treaty rights (so in Ontario now, wouldn’t
have the limitations issue in the same way here)
 Things to look at regarding evidence
• On what basis do these individuals claim to speak on behalf
of this band (establish they have authority to do so)
• Likely that if this litigation occurred in Ontario that this
would not have proceeded through summary judgment.
o Challenge of this case is that these individuals had commenced pleadings
and had gone into motion for summary judgment w/o putting forward the
evidence they would provide on trial. Rather they said that they wanted to
go through discovery process in order to get access to info they want to
rely on for litigation. Court said that a summary judgment motion
cannot be defeated by vague references to what will happened in
future – motion much be judged on basis of what is presented to judge
now not on assumptions of what will be provided in the future. So you
have to put forward evidence at the initial stage – this is a SERIOUS
problem in aboriginal cases b/c putting together evidence is a multiyear,
multimillion dollar process
Determinations of Questions of Law Before Trial & Special Cases

Questions of law
- r. 21.01 (757)
o you can ask the court to make a finding with respect to a legal issue before
trial
o on questions of law no evidence will be considered.
Special cases – r. 22 (780)
- Parties have to agree on facts and then ask court to make determination while
21.01 tells us that one party has to ask for determination of question of law
- Court does have ability to decide one specific discrete legal issue either on the
application of one party where court views that resolving this issue will shorten
trial/dispose of litigation/ save costs or in circumstances where parties consent.

BC (Min. of Forests) v. Okanagan Indian Band [No. 1] ( test for court

to decide point of law: Requirements strict )
- band saying they have aboriginal right to log on certain crown lands
- B.C government used a stop work order under BC forest code and got an order to
prevent the logging by a number of individuals
- Issue  whether or not the provisions of the Forest Practices code are
constitutional? Alleged violation is that aboriginal right to log on crown land is
entrenched in the constitution by 35.
- First nations communities were logging b/c they didn’t have money for housing –
so not enough money to pay for litigation to obtain court judgment saying they
have the right.
- These communities tried a number of procedures in order to have this matter
decided w/o going to trial.
- Here they asked the court to make a finding on a point of law (whether in
principle the Forest Practices Code (b/c it doesn’t acknowledge right to log on
crown grounds) unconstitutional?
- They want to avoid having to put together the evidence that they as an individual
band that they have this aboriginal right. (have to show they have engaged and
continue to engage in logging) so they want to decide this on point of law.
- Court says that context really matters in this case – even if they were to succeed in
presenting evidence that they have this aboriginal right and the code violates that
right – it is still open to the government to say that that violation is justifiable
under the constitution. Court needs evidence to do this – how important is the
aboriginal right? How important is it to prevent logging?
- So court decides that it is not appropriate in these kinds of cases to make
constitutional decisions – need context.
- Goes through test from Alcan which sets out the kinds of scenarios where the
court will exercise discretion to make a ruling on point of law:
o Point of law must be clearly raised in pleadings?
o Legal question must arise assuming all the allegations of the opposing
party are true
 o Must be no facts in dispute with regard to that legal issue
o The court retains discretion and will only move ahead where the question
will be decisive to the litigation
o The court will consider whether deciding the question will shorten the trial
or save costs.
- Note: In Ontario the test for points of law appears to be broader. You can
have a successful motion for the court to decide point of law even if the legal
issue will not dispose of the full action. (only dispose of part of the action)

Arar v. Syrian Arab Republic ( successful ruling on point of law)

- Arar is Canadian citizen traveling abroad – coming back through US and was
detained and subject to extraordinary redention program – removed from
jurisdiction and sent to Syria via Jordan.
- He was tortured in Syria
- He sues Syria and Jordan for involvement in the torture
- Syria doesn’t defend
- Jordan defends on SIA saying it prohibits him from suing in these contexts
- Bouzari already made determination on this issue and Arar had intervened.
- In Bouzari court found there was no exception to the SIA which prohibits
individuals from suing in other states – no exception for victims of torture.
- Arar argues that Bouzari doesn’t apply to him b/c:
o 1) he was a Canadian citizen where Bouzari was not.
o 2) Canada was complicit in his torture (alleges this)
- He said his section 7 rights under charter are breached by the torture
- Jordan wants court to decide legal question of whether or not his lawsuit is
barred by SIA.
- Court allows Jordan’s motion and they dismiss the action by making this finding
on a point of law.
- They say that he has not distinguished his case from Bouzari (doesn’t see
citizenship as determinative here) and pleadings didn’t set out that Canada was
complicit so its too late – settled with Canada
- Court says that on a decision on a point of law you have to go with what is
ALREADY in the pleadings – it was open to him to amend the pleadings prior to
hearing the motion and he chose not to.
- Court here is making decision on constitutional case (s. 7) through a point of
law in spite of other cases that say you shouldn’t make constitutional
determinations at this point.

Summary Trial/Mini Trial

Civil Justice Reform Project “Findings and Recommendations” (2007)
- summary judgment in Ontario is relatively frequently used, not used the way it
was intended
- reasons is b/c courts gave narrow interpretation of whether there is genuine issues
- parties can get around summary judgment by pleading issues carefully so there
 will be fact issues of credibility in dispute
- present litigation of one of the parties that in spite of documentary evidence they
were told something, led to something else, raise issue of credibility and thereby
prevent summary judgment.
- Significant that Osborne recommended the changes to rule 30, in addition
recommended Ontario adopt summary trial rules
- Summary trial rules in BC (have summary judgment and summary trial)
o If party applies to court for summary trial, the court should grant the
application unless the court is unable to find the facts that are necessary to
deicee the issue relevant to the litigation or if the court opinon it would be
unjust to decide the issue through summary trial
o Expedited trial, occurs largely on documentary basis (affidavits) but
the court also orders live testimony, much faster, no extended
discovery periods
o Quick trial that goes beyond – makes same fact findings it would make at
real trial

Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.

- plaintiff borrowed from defendant, promised to pay a week later with the fee,
person who was owed money was a broker, and had a number of investment of
the person who was borrowing money in view of the person who was owned the
money, the borrower had agreed that if the stock would be collateral for the debt,
if they didn’t repay, lender could simply sell the stock and keep the money
- borrower sues lender for having sold the stocks without authorization
- plaintiff (borrower) brings a motion for summary judgment under rule 18(a) BC
- plaintiff and Defendant file contradictory documentary evidence as to whether or
not the stock was to be used as collateral for this loan
- judge dismisses motion for summary judgment b/c of disputed facts
- goes up to court of appeal of BC – extensive discussion about why it is that BC
has established rule 18(a)
- court notes that with respect to summary judgment the judge before whom
the application is brought is not to decide questions of fact or law as on trial.
His function is limited to determining whether or not there is a genuine issue
for trial – and if there is then it should be dismissed.
- Problem is that artful pleaders can set up pleadings to raise questions of fact or
law and defeat motion of summary judgment so 18(a) was brought in to allow
courts to make factual/legal findings at early stage of litigation unless it would be
unjust to decide issues in this manner.
- So the key question of the judge through 18(a) is whether or not there is
SUFFICIENT evidence to proceed through adjudication (is there key evidence
missing?)
- Court notes that the mere fact that there may be factual matters in dispute and that
you may need testimony and cross-examinations does not bar an application for
summary trial b/c the court can order the parties to be cross-examined at trial.
 - Court says that as b/w these two parties a full trial will produce more accurate
results so if you want a process that will make accurate legal findings you go
through regular trial.
- Accuracy of factual and legal findings however is only policy aspiration of the
court. You have to balance off the necessity for accuracy with the problems that
are associated with expensive and delayed litigation.
- Summary trial is not as procedurally robust as regular but balances off need
for accurate findings on one hand with need for quick and inexpensive
litigation on the other hand.

BC (Minister of Forests) v. Westbank First Nation [No. 2]

- the aboriginal community first tried through point of law
- then tried through summary trial
- same reason that applies to point of law applies to summary trial.
- The preferred procedure in constitutional aboriginal rights procedure is go
to get full trial, it appreciates the aboriginal community is trying to resolve
matters and is trying to get from the court in the vent they can put together certain
evidence they will get ruling
- Court is sympathetic but goes on to say it is essential that there be full fact record
and the aboriginal cases will not be tried on a hypothetical basis.
- “ I appreciate that the respondents are attempting to obtain a preliminary
determination of a legal question before they go to expense of gather underlying
evidence. However for many of the same reasons that I referred to in my
judgment under rule 34, I think it would be unwise to decide questions relating to
the constitutionality of a law affecting aboriginal rights on a hypothetical basis

Summary judgment (definition )

- 20.02  parties can consent to having the claim determined through summary
judgment (758)
- in Ontario we have not gone to summary trial – we have enlarged scope of
summary judgment
- but with consent of parties you can have expedited trial

Discontinuance & Withdrawal: Rule 23 (783)

- discontinuance is where plaintiff decides that they don’t want to proceed with
litigation  23.01(a) plaintiff can decide to do so anytime before the close of
pleadings
- 23.01(b and c)  after close of pleadings – you need consent of parties or leave
from court
- effect of discontinuance is that you are choosing not to proceed with litigation but
it does not bar you from making the same claim at a later date (no res judicata)
- 23.04  the court can allow you to discontinue and can direct that res judicata
will follow. Court has discretion to say that you can discontinue but you’re not
allow to bring motion at a later date
 - if plaintiff discontinues they have to pay costs of defense (23.05)
- 23.06  defendant can withdraw statement of defence (withdrawal by D)
o effect is that it is as though D did not put forward statement of Defence so
proceed with default judgment (noted in default)

Simanic v. Ross ( court doesn’t grant disconituance if matter will

likely be adjudicated in the future)
- plaintiff Simanic involved in constructing a condo in St. Kitts.
- Defendant is Ps lawyer
- Dispute over the payment for the work in early 1990s
- Defendant sues Plaintiff in prior litigation for unpaid legal bills – wins
- Tries to enforce the order in St. Kitts but hasn’t been able to do so
- Lawyer has been retained by another party in a dispute with plaintiff and there is
an issue as to whether it is appropriate for the lawyer to be involved in that case
given that he had previously involved Semanic and therefore may have access to
confidential information
- Plaintiff sues Defendant (resident of Ontario) in Ontario seeking to prevent him
from acting in this other litigation
- One year later the plaintiff sues the lawyer on the same grounds in St. Kitts.
- Pleadings get closed in Ontario but beyond that not much progress in the
litigation.
- Plaintiff now wants to proceed with litigation only in St. Kitts and wants to
discontinue it in Ontario
- Lawyer opposes this motion for discontinuance (pleadings had closed so need
court’s permission)
- Lawyer wants this b/c wants ongoing litigation to be resolved and b/c lawyer
would rather defend this in home jurisdiction. Plaintiff has consented to fact that
Ontario is convenient forum.. he would rather have it resolved in Ontario.
- Court has to decide whether or not it should grant leave for discontinuance
- If There is concern with finality of litigation (he could just bring it again
later on)
- Further you get in litigation, less likely court will grant a motion for
discontinuance particularly where res judicata is an issue
- In situation where case has proceeded past limitation period the court will likely
grant discontinuance as it will revolve the matter.
- There is prejudice to D in granting discontinuance – b/c of inconvenience of
having to revolve matter in St. Kitts so declines to allow P to discontinue

Dismissal of Action for Delay – Rule 24 (787)

- if a plaintiff does not proceed in a timely manner, either the D or the court
can have the action dismissed so as to encourage to proceed in a timely
manner
- this is available wherever plaintiff does not set down for trial within 6 months of
close of pleadings – D can bring motion asking it be dismissed b/c of delay
- this is not automatic – court has discretion on a motion for dismissal for delay
 - effect of dismissal:
o does not automatically produce res judicata (plaintiff is free to begin a
new action so long as limitation period has not expired) 24.03(05)
o court can order that the plaintiff is not allowed to bring a new action (can
order res judicata) but not automatic
o costs: if D is successful in obtaining dismissal in an action for delay P has
to pay D’s costs.
Dismissal for delay by registrar (48.14) (1091)
o If a case is not on a trial list within 2 years of the delivery of the statement
of claim, there will be a status hearing (registrar will send notice to parties
indicating status hearing) if the plaintiff and the defendant do not set out a
timetable or proceeding with the action, the action will be dismissed or
delayed by the registrar

Armstrong v. McCall ( Reluctance of Court to grant dismissal of

Delay: critera established)
- P (Armstrong) fell off ladder and hurt foot
- He was treated by doctors including McCall
- P alleged malpractice leading to serious complications
- P served statement of claim in 1998 within limitations period but discovery
process was protractive and contentious
- P and D doctors could not agree on various aspects of the discovery
- March 2003 – D doctor has put forward a motion for dismissal for delay – this
was rejected by court and a timeline for trial was established
- September 2003 D brings new motion to dismiss for delay b/c timeline not
respected, a new one established
- Spring 2005 D brings 3rd motion to dismiss for delay – court will hear it but then
P sets matter down for trial and only outstanding issue is doctors availability for
trial.
- Doctors want it to be dismissed b/c of long period of time
- Issue  should court use discretion to grant motion to dismiss?
- Court asks 3 questions:
o Is the delay intentional?
o Who is responsible for the delay?
o Does the delay give rise to a substantial possibility that a fair trial is
no longer possible.
- Court notes rebuttable presumption: where there is a long delay over time,
witnesses fade etc – presumption of unfairness. Plaintiff can lead evidence to
rebut the presumption in which case the D must show actual prejudice (witnesses
died or moved etc)
- Court then balances right of plaintiff to proceed through trial with D’s right to fair
trial then will make decision as to whether or not to grant.
- Court says limitation period has now expired – but prejudice to D has to be
measured not against whole period of delay but from last time that D
 unsuccessfully made motion to dismiss for delay
- The court had held that D was not unduly prejudiced. He has to show what has
changed since last time.
- Delay was not completely attributable to Plaintiff
- Plaintiff rebutted presumption of unfairness b/c this was a case that largely turned
on documents (still available) and court notes that discovery process has already
happened so if memory of witnesses have faded they can just consult transcripts
of discovery.
- Prejudice that D has to show is not prejudice related to fact that litigation
has been hanging over heads for 7 years (delay in and of itself) but they have
to show that it is no longer possible to have a fair trial. And they say here that
insufficient evidence has been established to prove this.
- So court declines to grant motion for dismissal for delay and notes that trial is
ready to go.
- ** here you see that courts are reluctant (even with long delay) to dismiss
action for delay where the result will be to prevent plaintiff from pursuing
otherwise unfounded claim

Marchy d’Alimentation Denis Theriault Ltt v. Giant Tiger Stores Ltd

( When can revive claim that has been dismissed because of
delay)
- this case is about when registrar dismisses action for delay
- Plaintiff owns property in which giant tiger has a store and they operate that store
through a lease
- GT breaches lease and doesn’t pay rent and a result P doesn’t have money to pay
mortgage, defaults on it, and the financial institution sells the property to giant
tiger for less than they would have had to pay if they exercised option to purchase
under the lease
- P sues for unpaid rent (among other things)
- 1997
- P switched lawyers several times. One of the lawyers neglected to file change of
solicitor file with court
- P does not proceed in a timely manner
- 1999 registrar issues notice of status hearing but sends it to old lawyer.
- P therefore isn’t aware that registrar sent out notice for status hearing so don’t file
appropriate documents.
- Registrar dismisses this action for delay as a result
- 2000 VP of giant tiger stores dies – much of the documentary evidence is
destroyed b/c action has been dismissed for delay
- limitations period expires in 2002
- P changes lawyers again and new lawyer discovers that action has been dismissed
for delay (2003)
- Court has discretion to re-open claims that have been dismissed for delay
- So issue  should the court exercise this disretion?
- Test for when it will exercise discretion:
 o P has to offer explanation for why steps to advance litigation were not
made
o P must show that the delay was inadvertent/ unintentional
o P has to show that motion was brought promptly once they learned
that action had been dismissed for delay.
o P must convince court that D has not suffered significant prejudice
due to delay
- Court goes on to note that this test should NOT be applied strictly  factors that
should be looked at but in end court has to look at whole context of litigation
- So application of test:
o Court says that P has not provided adequate explanation for delay
o Inadvertence  this is a case of negligence -- courts are reluctant to
punish plaintiffs for inadvertence of lawyers. But here the case is
negligence – plaintiff can turn around and sue lawyer so they wont be left
without a remedy.
o Promptly – ok
o Prejudice –failed to show there was no prejudice.
- Court also notes Policy reasons for ensuring that there is finality in decisions such
that a D in a case where an action has been dismissed for delay ought to be
entitled to rely on that decision
- Not appropriate to revive claim. This would relieve lawyer and send wrong
signal to lawyers that it is ok to delay action in this way.

Summary on summary judgment stuff

- court looks at delay differently in context of motion for dismissal and trial is
ready to go (reluctant to grant dismissal) and in second case where issue is to
revive a claim that is dismissed for delay (courts less willing particularly where P
can recover from their lawyer)

DISCOVERY

- rule 30 = documentary discovery

- rule 31 = examination for discovery
- rule 32 =inspection of property
- rule 33 = medical examination
- rule 35 = examination for discovery by written questions

Introducing Discovery
- discovery is the process whereby the allegations that are set out in the pleadings
are possible to put together proof that will be used to substantiate those
allegations
Purposes of discovery
- 1 – defining and narrowing issues
o eliminate points that do not need to be decided at trial
- 2 – securing admissions
o statements made by a party that are adverse in interest (where a party
admits in an examination for discovery that they breached a contract) now
this party cannot argue at trial that they did not breach a K
- 3 – notice
o put parties on notice of the case against them (avoids surprise at trial)
o makes process more predictable and efficient
- 4 – encouraging settlement
o evaluate evidence, predict outcome at trial – then may settle.

Types of Discovery
- 1 – documentary discovery (r 30) 874
o obtain relevant documents in possession of other party
- 2- physical discovery
o access to another party’s property (body) in order to conduct tests on the
property or body (31) 925
- 3 – examinations for discovery (31) 925
o get to ask questions – answers are transcribed and u can use them as
evidence at trial
- 4 – requests to admit (51) 1139
o ask other party to admit or deny particular fact allegation and they are
bound by those admissions

Principle of Proportionality (29.2, 1.04(1.1))

- steps that are taken in the litigation should be commensurate if the complexity of
the litigation and the amount at stake only involves minor matter
- 29.2 proportionality in discovery (872)

Discovery Plan – 29.1

- under old rules there were timelines – court found them to be unhelpful and
parties were going to court to extend them
- new rules require that the parties agree to a timeline (within 60 days of close of
pleadings, parties must agree to discovery plan with timetables)
Deemed undertakings ( what can use documents in
discover for)
- rules that limit the uses to which info obtained through discovery can be put.
- Everyone involved in litigation (parties and their council) can only use the info
obtained through discovery for the purposes of the litigation for which the info
was obtained.
- If one of the companies gets documents from other company pursuant to litigation
they cant use it to reduce their prices to compete with other side for example (if
competitors) (but court is a public forum so then its fine)
- 30.1.01 (915)
o (1) applies to: rules 30, 31, 32, 33, 35
o (3) “all parties and their lawyers are deemed to undertake not to use
evidence or information to which this rule applies for any purposes other
than those of the proceeding in which the evidence was obtained.
o (4) exceptions ( 915)

Documentary Discovery (rules 30 875)

- process where parties exchange docs in their possession that are relevant to the
proceedings
- Definitions -- documents include sound recordings, films, photos, surveys, datas,
info in electronic form (30.01(a))
- scope – extends to every document that is relevant to any matter and issue in
action (30.02)
o changed from relating to relevant (language)
o idea was that this would encourage courts to adopt more restrictive tests
o relevance to issue/action is measure relative to pleadings – if in pleadings
you don’t raise particular factual allegation you are not entitled to
discover documents related to a that.
Two step process for documentary discovery discovery :
o 1) disclosure
 affidavit of documents – list of documents you swear is complete
 has to list all the documents that are relevant and in your
possession.
 3 types
• Docs in your possession you are willing to produce
• Docs in your possession that are relevant but not willing to
produce b/c they are privileged
• Docs that once were in your possession but are no longer in
your possession.
 Party has to swear this is a complete list
 Lawyer has to provide certificate indicating they have explained to
the client that they have to make full disclosure and they have
 explained what type of document they have to disclose
o 2) Production (30.02 and 04)
 all documents that are relevant for which you are not claiming
privilege have to be provided to other party at their request
 they are allowed to make copy of those docs for their record
- ongoing disclosure obligations (30.07) – if at a later date you discover
documents that you did not disclose you have to let the other side know –
obligations continue to trial
- consequences of failure to disclose or produce
o if the document that you fail to disclose is favorable to your case - you
can’t us$e it at trial.
o If the doc is not favorable to your case, court has discretion (include
striking)
- If you claim privilege you cannot rely on it at trial
- Documentary discovery from non-parties
o 30.10 – circumstances when you can do this
o where doc is relevant and would be unfair to ask to go to trial without it,
the court can order a third party to produce it (quite exceptional)

Grossman v. Toronto General Hospital ( affidavit with limited

documents)
- Grossman patient lost and then found dead - medical malpractice
- His estate sues the hospital
- Hospital denies all allegations
- Hospital refuses to disclose any documents other than the Plaintiff’s medical
records – so all docs about looking for body, investigating circumstances – say
they are subject to privilege but didn’t say what the privileged documents were in
affadavit
- So Plaintiff brings motion for further production of affidavit documents -- he
wants for hospital to disclose more details about docs relevant that they have in
their possession
- Court notes that production and discovery is open to serious abuse and that
the entire system of discovery is prefaced on willingness of lawyers to
participate fully in the process
o Lawyers have notice about documents and about what types of documents
ought to be disclosed
o Main reason is that when you have a convo with clients about discovery
they are often quite perplexed b/c they are being asked to provide evidence
that runs against them. Court notes that lawyers play a key role in
persuading clients that this info does have to be disclosed to other party.
Where lawyers fail to do this, they may be ordered to pay full costs of
litigation and if a lawyer has reason to believe that a client is withholding
or failing to produce documents, they should withdraw from the case.
o With respect to the practice of claiming privilege on all of the relevant
 documents, that practice is problematic and part of the reason is b/c it is
hard for the other side to determine whether or not that privilege is being
claimed in a way that is justified.
- Court says that the hospital has to set out all of the documents – explain what
they are – don’t have to say whats in them – but explain what they are such
that the party and the court can evaluate whether or not privilege is being
claimed properly
- Court orders hospital to deliver further and better affidavit of documents
that would list all the privileged documents although not their content
- Court decides that making cost awards against lawyers are exceptional – this case
may be a case where a lawyer is acting with excessive zeal so refuses to order
costs against the lawyer.
- ***Consequences for lawyers who fail to disclose

Rules of Professional Conduct 4.01(4) ( discovery)

- confirm discovery obligations of lawyers
- they are required to explain importance of making full disclosure to clients
- must assist clients in determining what needs to be disclosed and in addition will
not make frivolous requests for production of docs that are not relevant litigation

Peter Kiewit Sons Co. of Canada Ltd v. British Columbia Hydro and
Power Authority ( Limit to how many documents need to be
disclosed when there are so many)
- contract dispute over whether or not B.C hydro and Power Authority
- PK wants all of the documents that relate to his project – big project with other
companies
- Issue is whether or not there is a limit to how many documents you are required to
disclose and to produce?
- Cites rules on when a document ought to be produced:
- Peruvian Guano case
o Parties have to produce documents – not only those that contain direct
evidence that is relevant to litigation but also information which could
enable other party to make further inquiries in order to obtain further
evidence.
o This case is interpreting relating to an issue in the action very broadly
- The court is reluctant to overturn this case law but is aware that if you apply this
test to this kind of case you will have B.C Hydro having to produce sooo many
documents
- So in cases where you have extensive documentary evidence, you cannot
imply this kind of broad test
- The court should not require parties to incur enormous expenses in what
may be a futile search for something that does not exist.
- Court suggests that in these kinds of cases there are a number of ways that the
plaintiff can try to get the documents they are looking for.
 o One way for P to bear the costs for production for excessive
documents
o P should be required to put down a security deposit and that in the
event that they don’t turn up any significant documents, plaintiff will
be bear costs.
o So P and D should try to make reasonable arrangement
- Peter K should bring another request – but greatly narrow down the scope of
the request
- Secondly, they have to show that it is likely that some relevant information is
contained within the documents they are looking for (prima facie evidence that
there is info that would be relevant)
- Problem is that court is asking Plaintiff to provide some evidence that is what is in
there is relevant, but they don’t have the documents!
- In Ontario – likely court will apply a stricter test to what is relevant –
o Principle of proportionality – would come into play – exclusion f data
available b/c electronic – also its not that expensive to get files now
o Also amount of info has increased

Leduc v. Roman ( facebook page subject to rules of disclosure due to

its purpose)
- D in motor vehicle accident wants access to plaintiff’s facebook profile – private
parts
- Expectation is that facebook page will be pic of the P doing things that he is
claiming he can no longer do as loss of enjoyment of life
- Court is required to figure out whether facebook is subject to the rules of the
disclosure
- D is skeptical that the P would in fact disclose these pictures if they were
available
- Court has to think about whether motion should be granted
- Court notes that there is no evidence that there are pictures on the private site or
that any of those pictures are relevant
- But court says we all know what fbook is used for. So here the court says
that the defendant is not merely engaged in a speculative fishing exercise –
there is likely relevant info on the facebook site about the claimant’s quality
of life
- Court also says that the plaintiff’s violation of privacy not a big deal
- Procedure that courts uses is that it orders a cross-examination on the affidavit
documents
- So the parties have to swear that the affidavit documents are complete and the
cross-examination that is being ordered allows D to ask P questions about
affidavit of questions
- It would have been possible for defendant, in examination for discovery, to ask
plaintiff whether or not they maintained a facebook page.
Sedona Canada Principles Addressing Electronic Discovery
- e – discovery is a growing area of civil litigation
- the scope of discovery should be proportionate to scope of litigation
- presumption that the cost of collecting the info should be born by the party
producing it, but in some circumstances other allocations of cost may be
appropriate, specifically where one party alleges that there is electronic info is
relevant but costly for other party to produce it and insufficient evidence that its
relevant, court may require party requesting it to pay the costs

Physical Discovery (aim for all parties to have access to

all relevant info)

inspection of property – r. 32 (959)

- it is within the court’s discretion to allow a party to go onto somebody else’s
property to take possession of the property (common in product liability cases)
medical examination – r. 33& CJA 105 (33 = 962), CJA 105 =235
- force a party to undergo a medical exam with a health practitioner of your choice.
Court has discretion to order this is there is a physical or mental condition of a
party that is at issue.
- 33.06 – if a medical exam takes place, you are required to provide a copy of the
report to all of the parties.
- where the other party puts your health at issue the test is going to be more
restrictive (105.3)
- 33.06 – if you do go through medical examination (under rule 33) then you are
required to provide a copy of the medical report to all of the parties.
- 33.07 – consequences if you fail to comply  if court orders you to undergo
medical examination and you don’t – a number of consequences including if you
are plaintiff having action dismissed and if you are defendant, having statement of
defence struck

Manuel v. Head
- Facts
o plaintiff in car accident – goes to their own doctor and gives medical
report to the defendant
o defendant wants P to undergo separate medical examination with a doctor
of his choice – chosen doctor outside the jurisdiction
o Plaintiff opposes this second examination on a number of grounds –
mainly that being forced to undergo a medical examination against their
will breaches s. 7, s. 8 (unreasonable search and seizure) and s. 9 (right not
to be arbitrarily detained/imprisoned) of the charter.
 - Decision/Analysis
o The court said that these arguments are not valid as the P is the party that
brought for the party and as such has given up some of his rights
o S. 1 justification for s. 7 is quite high – the case at hand did not have to
deal with b/c there was no jurisprudence to support it.

Examinations for Discovery

- parties get an opportunity to ask questions of one another
- timing –
o 31.04  examinations for discovery can occur as soon as the statement
for defence has been served.
o 31.05(1)  in effect Jan. 1 2010 – limits the total number of hours for
discovery to 7 hours
- who you may examine – r. 31.03 – you may examine anyone you are suing or
anyone suing you.
o Rules for what to do if party is not a person but a legal person (corporation
for example – usually an officer of the corporation of your choice)
- Third parties –31.10 – normally you can examine only parties (in Canada only
parties, U.S anyone)
o Limited circumstances where you can examine non-parties
o Only with the leave of the court and the court will only grant leave if you
satisfy a few conditions:
 You have to show there is no other effective way to obtain the info
 You have to show that it would be unfair to require you to proceed
to trial w/o the info
 Must show that allowing the examination will likely delay the
litigation, increase the expense of it, or cause prejudice to other
parties
- Scope of examination (31.06)
o You can ask questions relevant to any matter at issue
o This means that you can only ask questions that involve allegations in the
pleadings
- Procedure on examination (34) (972)
o Recorded or not, swear to tell the truth, who gets to ask questions etc…
not necessary here to get into them.
o 2 different ways to conduct examinations
 1) ask questions in person
 2) ask written questions
 you have the choice (person conducting examination has the
choice)
 oral exams are more common b/c the other party has less time to
prepare answer
- continuing discovery obligations (31.09)
o if after you have given answers you discover it was incomplete/incorrect –
 you are under obligation to inform the other party.
Purposes of examination for discovery
o To find out the facts (which can lead you to develop different strategies
and theories)
o Securing admissions of the other party (if they admit something you can
use admissions that are in the transcript for examination for discoveries) –
so if a party says something different at trial and you call them on it using
admission from examination from discovery – you impeach their
credibility (lying under oath either then or no)
o Where the person who is examined is unavailable at trial – you can read in
the information from examinations
o Generally speaking, unless you fall into one of those categories (admit
something that contradicts, not available, dead) – you are not allowed to
use admissions from examination – you have to ask the same questions at
trial
- Sanctions (31.07 ,31.09(3) 34.14, 34.15, 35.04)
o If the answer to the question would have been favorable to you, you
cannot later introduce evidence to that effect at trial
o If the answer goes against your case, the court has discretion to select a
consequence which can include striking the statement of defence, striking
action, cost consequences.

Forlitti v. Woolley ( Process of how examination for discovery should

be conducted)
- examination for discovery –
- usually both parties and counsils are there – counsel conducting it asks series of
questions and other counsel will not speak except for clarifications to questions
- in this case they were objecting, attempting to rephrase questions, telling clients
not to answer questions etc.
- court says this approach is inappropriate – counsel should be restrained in their
objections, exams are not leeway for convos – if you are objecting, simply do
it, note it, and allow other party to move on and then go to court to have rulings
with respect to objections
- “counsel should endeavour to be restrained in their objections. An examination
for discovery is not a 3 way convo. It is best to follow a more formalistic
approach to objections.”
- The case outlines some key principles that operate in Exams for discovery
(para 9.)
o The scope of examination for discovery should not be too narrowly
restricted. The question does not need to be focused directly on a relevant
action but only needs to be relevant in general to a particular issue raised
by the pleadings.
 We may be moving towards more restrictive approach – case law
hasn’t indicated this yet but might given response to Osborne
 report.
o A party can only examine other parties that are adverse in interest.
 Defendants can’t examine one another unless there is a cross claim
(b/c not suing one another)
o You do not have to answer questions about opinions/evaluation but
questions about what you know. (exceptions for professional
competence)
 Where something is within your competence, other party can ask
you hypothetical questions
o One of the objection (most common) raised about questions in this process
is that the questions are not clear (vague, confusing, misleading, broad)
- Court was unhappy with way examination had been conducted –

Privilege - Examples
- solicitor-client privilege
- litigation privilege
- settlement (offer to settle can’t be used against you)
- spousal privilege – can’t be required to give info provided to you by spouse unless
suing each other.
- Police informer – can’t get info about Identity of a person who has informed
police against you.
- Consequences of claiming privilege
o once you claim it you can’t use it in the future
- privilege v. confidentiality
o confidentiality much broader

Rules of Professional Conduct 2.03 ( privledge)

- applies not just to privileged info but to all forms of confidential info that arises in
interaction b/w lawyer and their client.
- Should not disclose confidential information except in limited circumstances
o Where you are required to do so by tribunal or law
o Even where you are required to do so by law you should do so to the
minimum extent required.
- There is a specific exception to the rules on confidentiality/privilege where the
lawyer has information and failing to disclose it could put individuals at risk of
death or serious harm. This rule is interpreted quite narrowly.

Canada v. Solosky( Test to establish when s-c privledge privilege is

established)
- inmate of jail did not want the jail to pen letters he receives from his lawyers b/c
they contain information privileged by lawyer-client privilege
- test to establish whether or not – s-c privilege applies
 o 1) communication b/w solicitor and client
o 2) communication entails the seeking of legal advice
o 3) communication is intended to be confidential
- court says the facts of the case meet this test (letters from lawyer to client, dealing
with legal advice, client wants privilege)
- but given that the letters are protected by s-c privilege, should the jail be entitled
to open the letters?
- Does the fact of them opening the letters violate the privilege in a way that
should not be authorized by the courts?
- Court suggests that there needs to be a balance b/c there is a danger that if
the officials of the jail are not able to open letters, danger of security of
prison, contraband being coming in (anyone can send a letter looking like its
from the lawyer) they need to have a way of knowing whether or not the letters
are legit communication b/w lawyer and client.
- Court says that these letters can be examined for contraband, in limited
circumstances it can be read to ensure that it contains privileged information but
they should only be read if there are grounds to believe that it is not privilege and
only to the extent necessary.
- Finally, the court says that the person reading the letter is under an
obligation to maintain the confidentiality of communication.
- The official can’t then turn around and give that letter to someone else and tell
them.
- So court is trying to strike a balance b/w protecting s-c privilege and
ensuring the security of prisons
- Would the reasoning in this case still apply in light of subsequent cases and the
charter?

Pritchard v. Ontario ( s-c privledge is used by lawyer)

- Pritchard was fired from her job and sued for gender discrimiation and harassmant
-
- Ratio: Solicitor client privilege applies to in-house counsel to the extent
that they are giving legal advice.
- Human rights tribunal declined to hear the case b/c she signed agreement that she
would not seek any further action
- Pritchard wants the whole file on her case at Human Rights Tribunal including
legal opinions written by in house counsel at the tribunal
- Issue is whether or not she should be entitled to get access to them and
whether or not they are protected by s-c privilege
- SCC indicates the centrality of s-c privilege to the legal system
- Court says it should be jealously guarded by the courts
- Court says no difference b/w in house counsel and those at a private practice
regarding s-c.
- Applies the 3 part test
- Court here is confronted with legislation saying plaintiff is entitled to see whole
record – court says the whole record does not include privileged materials so it is
possible to read the legislation narrowly
Blank v. Canada (DoJ) SCC – ( difference between s.c privledge and
litgation privledge).
- Blank was charged – charges quashed – government sued him again and those
chargers were stayed
- He wants the documents / materials from these prosecution – he is alleging
malicious chargers were laid against him
- Government says no – the materials are protected by privilege
- This required that the SCC for the first time clearly articulate the difference b/w
solicitor-client privilege and litigation privilege
- Court says regarding s- c Privilege:
o S-c privilege aims at preserving nature of relationship b/w lawyers and
clients (full and frank discussions)
o S-c applies only to lawyers
o S- c applies regardless of whether litigation is involved
o S-c never ends
- Regarding litigation privilege
o To create a zone of privacy in which lawyers and clients can prepare for
litigation
o b/c of the adversarial system requiring individuals present the arguments
that support their case we require litigation privilege so as to encourage
parties to prepare
o so purpose is not to create relationship but to facilitate process.
o Ends with end of litigation
o Reason why you have zone of privacy is to enable you to participate fully
in the adversarial process – once you have, its no longer necessary
- Court here says that these documents were prepared for purposes of criminal
prosecution and that litigation is over – no possibility that there is going to be
further charges against him.
- The mere fact that he is suing the government for malicious charges does not
mean that the litigation from before is still going
- Therefore the litigation privilege expires so the docs aren’t covered by it – so he
gets to see them.
- * so this case demonstrates differences b/w s-c and litigation priv. and the weight
of them --- courts are much more willing to protect s-c.

A.M. v. Ryan ( confidentiality and privilege for different classes of

document)
- woman was molested and the defendant wants to use notes from her psychiatrist
sessions with him. (she had said keep it confidential) he wants to use notes from
her psychiatrists notes to defend himself.
- issue –are confidential communications between a psychiatrist and their patient
privileged? And are notes from consultations available through discovery?
- Court sets out privilege for when a particular classes of documents/ information
 will be protected due to confidentiality (Wigmore test)
o 1) communication must originate in confidence
o 2) confidence must be essential to relationship
o 3) relationship must be one which ought to be carefully maintained in
public good
o 4) court must balance interests served by protecting the communication
and the interests in getting at the truth and disposing correctly of the
litigation
- applying test to facts of the case:
o court accepts first 3 parts (intend communication be confidential,
confidential nature of the info is key component allowing patient to
communicate freely with psychiatrist, relationship b/w psychiatrist and
plaintiff is extremely important one)
o but court says 4th part of the test causes difficulty. On the one hand the
Plaintiff does have key interests in keeping this info confidential, but on
the other hand he is being accused of sexual assault in the context of his
practice and so he is entitled to fully defend himself. Court says in order
to balance these competing sets of interests is by restricting the way the
information will come out. Plaintiff has to provide information to D’s
lawyers and expert witnesses – those lawyers and expert witnesses cannot
make copies of info, it can’t be exposed to the doctor.
o So in short, the P’s private disclosure to psychiatrists will be disclosed
only to a private group of people
- Why is S-C privilege treated with so much respect compared to other forms of
privilege??

Re: Harkat ( national security and privledge: strong protection)

- Harkat suspected of being involved in terrorist activities
- A security certificate issued against him is upheld
- Special advocate system created – allows people subject to the certificates to have
a lawyer who represents them in closed security proceedings.
- Part of the evidence used to justify the certificate against him is evidence that was
obtained from covert human intelligence source – known to him. He had
relationship with her – one that her superiors told her not to have and that she was
hiding from them.
- She was fired for this. Government didn’t disclose this. Also didn’t disclose that
the evidence which she gave against him – she underwent polygraph exam and
she failed it. Called it an oversight.
- Harkat’s special advocates want to be able to know the name and details of the
source and want to cross examine her b/c they have reason to believe that her
evidence is not reliable.
- Government says this is subject to covert human intelligence privilege and it
should not be disclosed not only to him and his lawyer but also to special
advocate.
- Court has to answer – is there covert human intelligence source privilege?
o Here court says yes – same reason why we protect police informants.
o Says it is absolute in the civil litigation context (narrow exceptions in the
criminal context where the person who is accused’s innocence is at stake)
- Court says Mr. Harkat’s s. 7 rights are engaged by this process and therefore
informant – privilege is not absolute. It can be breached to avoid flagrant
fouls of procedural fairness
- But it should not be breached b/c other ways that the special advocates can
test reliability of evidence and judge can.
• Harkat was subject to security certificate, he could be removed from Canada on the
ground he posed a threat to national security

• As part of the process where court evaluating if the certificate was valid, Harkat wanted
access to evidence provided by secret informer

• He also wanted to cross examine the informer

• The govern took the so that the identity of the informer is subject to human covert
intelligence, privilege and that privilege should not be dropped in either ropen proceeding
in court or even in closed proceeding (where haarkat not there but represented)

• In this decis the court said yes there is such a thing as human covert intelligence
privilege, so in this case the identity of the informer and the ability to cross the
informer was prohibited

• May be strong policy reasons for protecting that privilege in these circ in order to
encourage and protect ppl who come forward, also it would impeded there ability to work
will intel of other countries if they knew that Canada would not protect identity of
informant

• Innocent at stake policy- where innocent person at stake in police cases, they can identify
the informer in order to prove the accused is innocent, in order to prevent a flagrant
miscarriage of justice

• One could argue that the same kind of things that are at stake in crim proceedings are at
stake in these certificate proceedings (same liberty interests, he is detained during and
also made to leave)

• It ended up coming to the courts attention, that cesus who had prepared info on the
informer, had neglected to provide all info on the informer in the closed proceeding,
including the relationship between the informer and harkat and the fact that the informer
had failed a polygraph re the truth of its testimony

• The court was quite frustrated and soin a subs decision the court by failing to make full
disclosure, cecus did not protect confide of informer, they had filtered evidence, which is
unacceptable
 • The govern decided to dramatically to change its approach (seems likely that secur
certificate will be botched)

• This case seems to suggest that lawyers or parties in the context of discovery have
significant obligation, and where lawyers don’t meet the obligation, flagrant miscarriage
of justice is possible

• This is a problem with discovery generally, but its a particular problem in cases where
national security and covert intelligence is at issue

MANAGING THE PRCOCESS

T. Farrow, “General Summary/Overview of Basic Civil
Claim”
• Have to think about what course is best for your civil case

• Exchange of pleasing

• After the exchange of pleadings there can be a number of case management processes (eg
mandated mediation)

• The next stage in the process is discovery (exchange of documents and oral examination)
this si the longest

• Then the matter is set down for trail, at that point there is a pretrial conference

• Then there is the actual trial and judgment

• Usually in most jurisdictions oblig to engage in mandatory mediation, but diff jurisd have
place the oblig in diff places

• We will look at ways to speed up the whole process, ways to keep it on track

• Various mechanisms to increase effect of process has been subject to criticism

REFOMING CIVIL PROCERDURE

Colleen Hanycz, “More Access to Less Justice” (2008) ( critique of
speeding up civ pro)
• Arg that the whole push for more efficiency has led to less justice

• Not a correlation between making it more efficient and making justice mreo accessible

• She obects to what she sees as simplistic approach to law reform

• The simplistic approach is the princ of proportionality (courts should modify the ruels in
light of the importance of the issues at stake) she objects to characterize the import of the
issue at stake by the amount of money at stake

• Really the amount of money at stake is really the dominant character they consider
when deciding the proceed to use

• Australian chief justice artic why they need to base decision based on money at stake...
“rolls royce comment” concern with insuring that the cost of litigation is not
disproportionate to issues at stake (in some case it might be approp to use rolls roice
system, more expensive, to ensure that the court uses all proced to make sure they make
accurate legal findings)

o Butif getting to the right legal finding in most cases will cost u mor that the
amount at stake, then ppl wont use the system, wont go to court

o So we need system with fewer proceed protect that might nto get the legal
outcome, but will at least be accessible and encourage ppl to use it

o Depend on the nature of the dispute at issue u may enter the system in diff ways,
some entrance may take u to full procedures, other may take u to small claims
court, or simplified procedures (where there is little at stake

• She says (Hanycz) nothing wrong with matching proceed, to dispute at issues, but
she objects to the idea that when ever ui have dispute with less money, there should
always be less procedures (rather than focusing solely on the amount in dispute, u
should also focus on other consideration)

o “While the notion of the multi-door court house is a good one, matching the
dispute and disputants with the best possible dispute resolution mechanism, that
type of screening requires a solid understanding of the factual context and
matters in issue… What we have done here avoids that altogether. Smaller
disputes are treated with significantly less process.”

• The general rules do kind of point in this direction (rule 104) bellow- we see concern
about effect, but there is balance between efec issue sna djust outcomes on the merits

• There is also balance built into proportionality principle (bellow)

o r.1.04(1) GENERAL PRINCIPLE: These rules shall be liberally construed to

secure the just, most expeditious and least expensive determination of every civil
proceedings on its merits.

o r.1.04(1.1) PROPORTIONALITY: In applying these rules, the court shall

make orders and give directions that are proportionate to the importance and
complexity of the issues, and to the amount involved, in the proceeding.
Simplified Procedure- Rule 76 (1443) ( for less money)
• Introducing Simplified Procedure

• (Small Claims Court, CJA s.22)

o Response to proportionality was to crate small claims court (if it involves less
than 20,000) the process and rules is less formal, the prcess is simplified, includ
rules of evidence

• Where Applicable – r.76.02

o U can use simplify procedure where amount at stake is less than 20,000 or on
consent where more is at stake

• Expedited Timelines – 76.09

• Expedited Discovery – r.76.03-4 (remember this usually takes the most time)

• Summary Trial – r. 76.10(6) & 76.12 (1443)

• Summary Judgement (1443) and (1445)( paper trial) (1460)

o Get notes

• Cost Consequences – r.76.13

o If the amount u recover ends up falling within the simplified procedure

requirements (100,000 or less Even though u win u have today the full cost of
litigation of apposing parties

o The idea is u have to pay that costs b/c u should have brought the matter in the
simplified procedure

• Appeals – CJA s.19 (135)

o U appeal after the judge in the simplified procedure to the divisional court (where
under 50,000) other wise u appeal to the court of appeal

• It is increasingly common for the simplified procedure to be used and for the summary
trials to be used (over a third of cases proceed under rule 76)

CASE MANAGEMENT
Case Management Rules 77 & 78
• Rules have bee significantly changed as of january 1st 2010, but he will go over the old
rules so we can understand why the rules are the way they are now
 • The rules put in place a number of points throughout the procedure where there would be
contact between courts and litigant

• The idea is that there are often councel had to have the file open and review it, the more
likely the cases would settle (every few months there was a new step which would
require the counsel to think about their case)

• Rules basically establish two diff tracks for litigation- standard track and fast track (wher
timeline expedited)

• At a fairly early stage in the process the case would be assigned to one track based on
level of complexity

• Regardless of what track u were in there were very strict litigation time tables, the idea
was to get the case moving and to give ppl an idea of when they would have trial date to
encourage settlement negotiations

• What ended up happening is u could not burry these time table on consent

• If u wanted to extend the deadlines u had to go to court and explain why the deadline
shad to be extended

• As a result of this rule it turned out 30% of the motions heard were motions on consent
to extend deadlines, it was costing a lot of money

• So the case management process ended up the cost of litigation and further delaying the
process (as the motions were eating up judicial resources so the trials were being delayed)

• b/c rule 77

• pilot project rule 78 was put into place, it applied mostly to actions in Toronto, the basic
idea is that the case management is nes, but not necessarily case management (pg.
1502!!!)

• there will be some cases that require case management to move it along, but such a time
where a case is identified as needed help, the carriage of the case would be maintained
not by the courts but by the parties

• instead of strict timetable rule 78 gave the court discretion to where appropriate to set
timetables

• rule 77 was a strict approach to case management, then move to rule 78

• rule 78 have been viewed as a success, effectively replaced rule 77with rule 78 although
its called rule 77

NEW RULE 77
• Purpose – r.77.01
 o new rule 77 sets out the purpose “to estb case mange sys which provides case
ammane only for proceedings where it is ness” (1476)

• Applicability – r.77.02 & 77.05 (1478)

o it applies in major centres include Ottawa and Toronto

o applies in two sets of circ- on consent (when the parties wasn’t the matter to be
subject to case management, especially where multiple parties) and where its
appropriate based on a list of eleven factors set out in rule 77.05 (take a look at
the factors, it’s the test for when case management is appropriate) basic where
cases are complicated and partis nto represented

• Effect – r. 77.04 & 77.08

o Number of effects largely discretionary, the judge has the discretion to hold case
conferences, parties meet with judge to set timelines, court can also make order
that are in keeping with purp of rule 77, one partic effect is an order wher all
motion can be heard by a partic judge (all found in rule 37.15 even if court nto
under case management can ask to have all motions heard by same judge)

• The courts tried a strict approach, which failed, so they have gone with a more
discretionary approach which us have the parties in charge of moving the matters
forward, but where ness the courts can step in

Mandatory Mediation
Rule 24.1 (795)
• Introducing Mandatory Mediation

• Purposes – r.24.1.01

o Reduce costs and delay in lit and facilitate early resolution of disputes

• Confidentiality – r.24.1.14

o Info in med is confidential and will not be disclosed to the court

• Where Applicable – r.24.1.04

o Mandatory mediation in all actions in the main counties (including Toronto)

o Certain list of exceptions (family law cases) cases relating to estates and
insurance

• Who Must Attend – r.24.1.11

o The parties and their counsel must attend

 o Parties need to have auth to settle

• Exemptions – r.24.1.05

o U can apply to the court for an exemption

• Timing – 24.1.09

o Within 180 of filing the statement of defence, that will be used before discovery
is complete

o U can extend the deadline if u can show it will be more likely to be success after
discovery is complete ( pg 803)

• Non-Compliance – r.24.1.12-13

o The likely result is that the case wile b moved into case management

O. (G.) v. H. (C.D.) ( criteria exemption from mediation)

• The woman does not want to go to mandatory mediation, she feels that if she does she
will face a number of adverse psych consequence and she will be intimidated

• Part of the reason we don’t have mandatory med for family law is because of a concern
of power imbalances and violence

• If we decide to exempt family law cases from mandatory mediation why would we not
experiment this case which raises similar types of power imbalances

• Criteria for granting exemptions: (5 scenarios where should be exempt from

mediation)

1. Have parties already engaged in ADR?

2. Is there an issue of public interest which requires adjudication? Should the case
not be settled b/c it involves public interest

3. Is the amount at stake modest, and the issues simple? In these circ it may just eb
cheaper and faster to go to trial, eg thorgh sum judge, inthat case med might
increase cost and length

4. Are the litigants present in the province and available?

5. Are there other reasons related to reducing costs and delays in litigation, or to
facilitating early and fair settlement? (general consideration)

• Because this case does not fall under any of these situation, the case should go to
mediation, but mediation should be done with acknowledgement of power imbalance,
with special mediator
 • And should consider if mediation could be done with parties in diff rooms

• If mediation proceeds in that way, this is an appropriate case for mandatory mediation

• But question: where have two parties who don’t want to mediate why would u force them
to, likely that mediation will not be successful, then mediation will just increase cost of
litigation

• Note other jurisdiction of have mandatory mediation in family law cases, this is hotly
debated

Rundle v. Krusp ( mediation hard to be exempt from)

• Teacher was engaged in appropriate behave with a student,

• Student complained and the teacher was fired

• Teacher sues for defamation, but she wants to be experiment from mandatory mediation
until after examination, she wants access to the stud transcripts and files from discovery
before mandatory mediation

• She also wanted the op to tell her side of the story to the judge before mediation

• She does not want to settle b/c she would not be able to collect on damages, b/c the
defined are teenagers with no assets

• So she wants the court to find the defined had defamed, in order to do so the court wil has
to find as fact whether or not the state was true

• Form her perspective having the court say she did not do it means more than having the
stud retract their statement

• In this case the court decides the med is still approp, the P can give her version of what
happened at the conference

• This case is import b/c not only does it say that teacher can stilt lher story in the
mediation

• The view of mediation that it si nto just about settlement, it is a tool of case
management in two ways

o To have cases settle

o To narrow down issues (even if parties cant come to agree on alfo the issues,
it can come to agree on some issues which will not need to be litigated so
litigation will be faster and cheaper

• Last part of case management involves pretrial conferences under rule 5o

Introducing Pre-Trial Conferences
• Purpose – r.50.01 (1130)

o Purpose is to discuss op for settlement and to discuss ways of expediting

proceedings

• Where available – r.50.02-3

o Used to be only in cases that were subject to case management, but now they are
mandatory in actions and are optional in application

o They occur within 180 days of setting a matter down for trial

• Who must attend – r.50.05

o Generally counsel must attend

• Matters to be discussed – r.50.06 (a1-11)

o 11 diff sets of issues can be discussed

• Pre-Trial Judge Cannot Preside at Hearing – r.50.10

o Except with consent from both parties

o Have this rule so judge not biased, one of the ways judge facilitate settlement is
saying this is what he think will happen at trial, so u should settle in this way
(similar concern with respect to motion judges, should not ness hear the trial eg
could have already heard a motion for summary judgement, or to dismiss)

• Non-Disclosure – 50.03

o Cant disclose to the judge at trial the com that happened at the pre-trial
conference, this is to endure full land frank settlement discussion.

Critiques of Pre trial hearings

• These pre-trial conferences are controversial, a number or academic commentators view
this as an inappropriate mix of adjudication and mediation a lot of the discussion here
would be more appropriate for mediation, concerned whether the judges are trained in the
same way that mediators are, and this is not in line with traditional role of judges

• Second academic critique of pre-trial conferences- there are problems with court
connected processes designed to accomplish settlement

o Settlement should not ness be the referred outcome of cases, In some cases it is
preferable to have judicial ruling on an outcome for precedent reasons
Vexatious Proceedings CJA, s. 140 (323)
- there to protect those parties who are continuously sued but keep winning so you want to
have them declared a vexatious litigant

- Definition: someone who has persistently, without reasonable grounds, instituting

proceedings in any court or conducted proceedings in a frivolous manner.

- Have you show that conduct of the litigant amounts to abuse of process or involves a
form of harassment.

- Consequences CJA 140(4)

o You can no longer freely access the courts

o So if you want to serve a statement of claim against someone you have to get the
leave of the court first.  have to make a motion requesting leave to commence
proceedings and the court will only grant leave where they are of the view that
the proceedings are not an abuse of process and where there is reasonable
grounds to bring the proceedings

o AG is entitled to be heard on the application for leave. They have an interest in

ensuring that court is not misused.

- Abuse of Process – CJA s. 140(5) r. 21.01(3) (d)

o Courts are entitled to control processes in order to prevent abuse of processes.

o This is also found in the common law

o If the pleadings of the abuse of process – court can strike out those pleadings in
their entirety or parts of them (21.01 (3)(d))

- So court has a number of tools including striking statements of claim/defense and cost
consequences or defining them as vexatious litigants

Dale Streiman & Kurz LLP v. De Teresi ( factors that determine a

vexatious litgatn)
- facts

o he refused to pay – dispute over bill – lawsuit ensued.

o Law firm was frustrated by litigant’s behaviour decides to bring motion declaring
them to be vexatious.

o The amount in dispute is very small (less than $400.) (dispute b/w lawyer and
 vexatious litigant)

- The case summarizes the test for when a person will be considered a vexatious litigant

o Para 7: purpose of rules on Vexatious litigants = to prevent employment of

judicial proceedings for purposes that the law regards as improper = abuse
of process

o Para 8: series of factors including bringing litigation on matters that had

already been determined (already res judicata on a particular point maybe)
or bringing actions merely to harass other party (to get them to settle to
avoid cost of litigation even though you are not entitled to what you are
seeking)

o You should look at the whole history of the litigant and not just whether a
particular case has a good cause of action.

o Frequently these litigants don’t pay adverse cost awards (typical

characteristic)

- Application to the facts of the case

o This person applies to all of these factors.

- Conclusion: This person is a vexatious litigant – he will have to get leave of the court to
do another proceeding.

- Are the rules on vexatious litigants effective given that it took 73 actions in order to get
to this stage? Part of what is problematic is that you have to do it through a motion
which will likely be contested – cost a lot of money – and most vexatious litigants bring
actions for very small amounts so you’re not likely to proceed with this motion

- So maybe there should be some other procedures that can be done. But problem with
making it easier to have someone deemed vexatious litigant – access to justice – creating
a barrier and should only be in exceptional circumstances.

Contempt (another process by which the courts can

control their processes)
- courts have inherent jurisdiction under common law to punish individuals for
contempt – specifically for disobeying the court.

- You can bring a motion to the court asking the court to force party to do what they are
supposed to do – if they still don’t do it you can bring a motion for contempt that will
enforce punishment until they comply with the order.
- So contempt is used to ensure courts orders are enforced

- Civil v. criminal contempt

o Civil is for scenarios where one party wants the other party to obey a court order
and the purpose of the punishment is to secure compliance and so the
punishments should cease as soon as there is compliance.

 Ex – journalist who has to expose source for disclosure and doesn’t –

keep them in jail until they do

o Criminal

 When people disobey the courts publicly they bring administration of

justice into disrepute--- more than just interests of party – broader public
interest in punishing the decision of a party to publicly put the
administration into disrepute

o Not a big difference at the end of the day b/c in both cases this is a quasi-criminal
procedure and you are entitled to all of the protections you would be entitled to
under criminal proceedings.

- Contempt is the only criminal offence that is NOT in the criminal code. (old common law
tool)

- Motion for contempt order (r. 60.11) 1298

o The court CAN do this on its own motion (has authority to make finding of
contempt without waiting for party to make a motion)

o 60.1(1) – defines contempt = measure the court takes to enforce a court order
other than an order for the payment of money.

- Content of contempt orders (60.11(5)

o Fines

o Orders with respect to costs

o Put in jail

o Any order they deem appropriate or just

o Quite a bit of discretion

Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy
Council ( government dissolves injunction which prevents
contempt)
- facts

o messy lands claims dispute

o court makes an order requiring an injuction – requiring that the protestors leave
the land they are occupying and take down a bunch of barricades they have
erected on highways

o big mess – fights b/w aboriginal community and local non-aboriginal community

o government decides to step in and purchase the land in question and give
permission to the protestors that they occupy the land. They want to dissolve the
injuction.

o Even Henco consents to having the injunction dissolved that is involved in the
litigation.

o But people who are not involved (residents of Caledonia) feel that the failure of
them to adhere to injunction is problematic and have exempted themselves from
occupation of the law

o So strong political pressure on the government to continue with this litigation and
put people in jail for having breached court orders but they want to dissolve the
issue and continue land claims dispute

o So government brings motion to dissolve injunction

- holding

o Court says no – b/c haven’t dealt with contempt issues – fact that they have
disobeyed order and haven’t been punished

o Judge says he wants to oversee the issue and holds a number of case management
hearings

- Goes to Ontario Court of Appeal

o Court says that the injunction should be dissolved b/c current owner of land is
willing to allow protestors to protest on the land – asking us to dissolve
injunction and so no reason not to grant it.

o Does the ongoing management of the contempt proceedings that the court
ordered – was that appropriate? Court says that Ontario courts have inherent
jurisdiction to monitor compliance with injunctions and contempt proceedings.
AG has carriage of litigation and they should be in charge of prosecuting crimes
 but court has legitimate interest in ensuring on an ongoing basis that the AG is in
fact proceeding properly. So they say that the part of the court order saying the
judge remains seised of the matter is okay.

o Court goes on to say that even though it is okay for the judge to remain seised of
the matter, they cannot unduly interfere with discretion of AG who has decision
whether or not to proceed with charges against people who break the law. Unless
the AG is acting in bad faith they should not interfere with the AG’s exercise of
discretion

o So court asks whether AG was acting in bad faith. Court notes that the
government was in a difficult position – many factors beyond question of
whether or not they had breached the injunction and so in choosing not to
proceed with contempt charges the AG was not acting in bad faith.

o Court says that there are procedural problems with initial contempt proceedings –
court had authorized police to read out the court injunction at the site and anyone
who did not comply could be arrested for contempt and could be jailed. Court
says this process is inadequate b/c parties don’t have opportunity to defend
themselves against serious charges. So court says that the way that the
contempt orders were enforced with respect to a number of the protesters
was inappropriate and if the AG wants to proceed with contempt charges
against people who breach it they can do so but has discretion with respect
to whether or not to do so and if they decide to proceed – they must comply
with principles of fundamental justice and protections afforded under
criminal law.

- Non-aboriginal residents of Caledonia were very unhappy with this decision.

Hypothetical Ken and Leaka (actually an SCC case)

- vexatious litigant?

- Does he have the right to appeal without first complying with the court order? He is in
breach of a court order and under these facts that order is not stayed pending appeal – so
should he be allowed to appeal without first complying with the order to pay the money?

- If the argument about spousal support not being different from other kinds of debt
doesn’t fly what else can you order?

- Security for the debt – court says it is different than debt and in these circumstances in
light of broad social phenomenon (feminization of poverty) it would be appropriate to
treat letters of credit and orders to produce security differently than the underlying debt.

- SCC found this to be an appropriate

- SCC upholds lower court’s contempt order.

 - Vexatious litigant issue?

o Hasn’t complied with the order – so abuse of process to continue accessing the
courts without complying with what the court is telling you to do.

o On the other hand – other facts (persistence not present) and it is hard to argue
that its frivolous if he is trying to avoid jail. – liberty interests at stake – should
not use vexatious litigant provisions to prevent him from challenging the
infringement on his liberty interests.

- Holding

o SCC denies motion to declare him vexatious litigant/abuse of process

o But upholds contempt order.

- The court will not order a letter of credit where the defendant doesn’t actually have the
resources so he wont be put in jail for not having money but for choosing not to provide
this security given that he has this security.

- Is this distinction b/w debt valid?

COSTS

Managing Through Costs

four purposes of cost rewards
- 1 – unsuccessful party has to compensate successful party for costs of litigation =
indemnification

o logic is that party who won shouldn’t have had to go to court – unsuccessful
party should have settled

- 2 – to try to encourage settlement – if you know that it is possible that you will have cost
rewards issued against you you are more likely to settle

- 3 – to deter unnecessary steps for frivolous litigation – if you know that by brining
unnecessary steps/frivolous litigation that you are going to be punished through cost
rewards – you are less likely to do that

- 4 – aim at enhancing access to justice

o if you are a plaintiff whose rights have been infringed but you don’t have much
money you can still bring litigation with the expectation that when you are
 successful you will have your legal costs partially refunded

rule 57 and CJA s. 131

- costs versus fees

o costs are not the actual costs of the litigation (not the amount of money a party
actually paid) but rather the amount of money the court will order a party to pay
to another party to indemnify them – so part of the amount.

o Fees is the full amount that you pay as b/w a client and a lawyer. (cost of legal
representation in terms of numbers of hours worked)

- fees versus disbursements

o fees - cost of legal representation in terms of number of hours

o disbursements – going out and paying expert witness, making photocopies for
affidavits –

- default rule: partial indemnity

o successful party is entitled to have unsuccessful party partially indemnify them of

their costs.

o If you get partial indemnity award that will cover b/w 50 and 60% of the actual
cost of the litigation

- Substantial indemnity (r. 57.01) 1222

o You are going to pay almost the full cost of the litigation

o In deciding whether or not it should grant partial, substantial, or something else

the court will look at factors set out in this rule (list of 10 or so factors taken into
account by the court)

o This includes things like the complexity of the proceedings, whether a party did
something that unnecessarily delayed the proceedings or increased the expense,
whether one of the parties refused to admit a factual allegation that they should
have admitted which increased the cost of the litigation. Importance of litigation
in some cases where a person brings a charter challenge to the government and
lose – even though they lose the court may take view that they should no have to
pay costs b/c its an important matter that should have been brought to court.

- Costs – offer to settle (49) 1099

o Rules for offer to settle set out in rule 49- u can informally set out an offer to
settle at any time, but if u want to benefit in terms of costs u need to follow a
spec procedure set out in rule
 o Needs to be in writing, on a form, at least seven days before the start of trial

o What happens is if the party refuses an offer to settle that they should have taken,
there will be cost consequences

o Rule 49.10 (1115)- where u have a plaintiff who makes an offer to settle to the
defend, if the d does not accept the settlement, the issue goes to trial and the P
gets more, the P will get partial indemnity awards up to the date of the offer,
and subs indemnity award for all fees after the offer was made.

o If defend offers the plaintiff a settlement which they reject, and in the trial the
plaintiff gets less, the plaintiff gets partial indemnity costs to the date of the
offer, and the defend gets partial indemnity costs after the day of the offer

- Costs – wrong court (57.05 and 76.13)

o What happens if u don’t bring in action in the proper proceedings (eg u bring an
action in the reg court, but win less so should have brought in small claims court,
u win but don’t get costs)

o Also if u fall within in amount of simplified procedures, but u don’t brign action
under simple procedures, u don’t get costs (rule 57.05 and rule 76,13)

o Liability of solicitor for costs- it is possible that the lawyer for one party may be
required to pay costs for another party (rule 57.07) basic where solicitor caused
unnecessary delays or brought unnecessary proceedings

- Assessment of costs (58)

o Fixing costs- set out in rule 57.03- the court will determine what the costs are
based on submission form the parties

o In very complicated cases u can go to the court and have a hearing to figure out
costs (set out in rule 58)

Standard of Life Assurance Co v. Elliott ( Ordering lawyer to pay

costs)
• The issue is that Elliot, in this litigation with standard life, decides to bring third parties
claims against employees of standard life personally, SL says this is an abuse of process
b/c anything that Elliot will recover from employees u can recover from SL itself, so no
reason to bring the third party claim against employees

• So why did the lawyer do this? To get an

• Increasing cost of litigation so encouraging forced settlements

• Can do examination of discovery against the employees involved

• Also generally employees don’t like being sued, there will be pressure from employees
for SL to settle and resolve the law suite

• SL brings a motion to strike third party claims as abuse of process, issue here is
costs on the motion

• Normally the default rule is partial indemnity costs, SL was success on the motion so
Elliot would have to pay partial costs for SL on

• SL wants more than that here, b/c they were success in convincing the court that this was
a n abuse of process, thus they should be rewarded costs on subs indemnity basis (given
full costs)

• Look at rule 57

• The court says this is kind of case where substantial indemnity costs ought to be awarded

• Next question is who should pay the indemnity award? Part of the problem is that Elliot
has no money, she is on disability, so if the cost award is on her SL will not be able to
recover

• The question is should costs be awarded from the lawyer

• Look at rule

• 57.07 (1) Where a lawyer for a party has caused costs to be incurred without
reasonable cause or to be wasted by undue delay, negligence or other default, the
court may make an order,

• (a) disallowing costs between the lawyer and client or directing the lawyer to repay
to the client money paid on account of costs;

• (b) directing the lawyer to reimburse the client for any costs that the client has been
ordered to pay to any other party; and

• (c) requiring the lawyer personally to pay the costs of any party.

• - compares the rule to the exiting case law in law, as a mater of common la u shoudl only
order costs award against lawyers person where the lawyer is in bad faith

• But the court goes onto say if u read language in rule 57 u see its more permissive than
common law, this rule makes it easier to make costs award against lawyer easily

• So the court rules this si the kind of case where court could order cost award against
lawyer but...
 • by easily allowing costs award against the lawyer u are putting interest of the client
against the interest of the lawyer b/c they know they can be on line for costs wont take
risks for their clients????

• The court said we should not make it too easy to give a cost award to lawyers but
also awarding costs from a lawyer does not ness require bad faith

• Even though they did not do anything in bad faith he was engaged in a war of attrition
with SL here, he was using the rules as a weapon against the insurer, rather than a
mechanism to get a fair result, even though client approved this,

• Also part of the purpose of cost award is to indemnify success party, unless award is
against lawyer the insure will not be indemnified b/c client has no money

• So the court awards cost award jointly and severally to the lawyer and severally, SL
can choose who they want the money from, and Elliot and the lawyer has to work
out how much each of them will pay (for example if the lawyer had a discuss with
Elliot about potent costs, lawyer could demand costs from her that he has just paid to
Elliot)

Hypothetical: On Jan 1, Tara serves a statement of claim against Alice for breach of contract,
claiming $200,000 in damages. On May 15, Alice brings an unsuccessful motion for summary
judgement against Tara. On June 1, Alice makes a formal offer to settle for $125,000. On the
advice of her lawyer, Tara chooses not to accept the offer, and proceeds to trial. On September 2,
after a one-day trial,Tara receives a judgment for $110,000. What should the costs order be?
o Tak einto account that in the end tara, the plaitnff won, who would normally be
entirtled to part indemnity costs

o Then we consider the ffer from the defend that is better than what the PO ends up
getting

 So in this case to the date of the ofer the P shoudl get Pat indemnity
costs, after the date of the offer alice shoudl get partial indemnity costs

o Also consider that delining the offer was on the advice of the lawyer, did he
extend it unness, or was he act of the view that she might be able to get award

 Withot more details we cant really say that lawyers shoudl be at riskfo
cost award perso, mere erro in judge is nto enough to justify exceptional
cost award

o Also consider the unssucc motion for sum judgement by the defend- on this
motion the court makes its own cost award, tara won so the default ruel is partial
indemnity, but (ruel 20.06) there is spec rule for cost on sum judge, indicates
that were a motion for sum judge is unsuccessful the court can order subs
indemnity costs, unless sthe party can indicate that it was reas to bring the
 motion

 The purpose of sum judge is to decrease costs of litigation, but if

everyone just brings them it wil end up increasing costs, so want to
encourage only bringing them when it si reasonable

ACCESS TO JUSTICE
Roderick Macdonald: “Access to Justice and Law Reform” ( other
means to obtain justice)
- “access to justice is the access of a disembodied individual to the institutions of formal
law, where the latter are seen only as instruments for enforcing pre-established just rights
and claims.”

- reviews traditional understandings of access to justice.

o It really means removing barriers that separate individuals with subsantitively

valid claims to defences – to remove the barriers b/w those individuals and
the courts.

o The major barrier is access to legal representation.

o This is the traditional understanding

- He suggests that this understanding is flawed and elitist.

o It serves the interests of lawyers

- Access to courts is not the same thing as access to justice  if we were concerned with
access to justice we would be considered with how individuals could get access to
legal norms so that they don’t end up in court (preventative fashion). Is access to
health the same thing as access to surgery? That sort of analogy.

- He wants to think about it in the way of accessing lawmaking institutions – un-

representations in parliament – get them representation

- Equally important to ensure access to democratic processes/lawmaking processes as it is

to ensure access once that law is being applied to you in a court.

- Macdonald is a legal pluralist – argues that a focus on state law is also inappropriate
– people may want to resolve their disputes with one another in other forms.

o Ex – Sharia debates we talked about

 - Doesn’t access to justice framed in terms of accessing courts really reflect the interests of
lawyers?

C. Backhouse – What is Access to Justice? ( diversity is key)

- takes issue with Mac’s work

- he had written about small claims courts in Montreal – had been a major concern that
litigation was becoming too expensive in Quebec and courts were too distant from the
average person in the Quebec population. So they created small claims courts located in
the communities where people lived. Also passed strict rules preventing lawyers from
being involved in small claims court action. Extended hours of the courts so you could
go after work – some effort at ensuring translators – so all these measures were
understood in terms of classic access to justice issues (removing barriers to access
courts). He did an empirical study and concluded that the vast majority of small claims
courts users were white male, non-immigrant, professional middle class and middle aged.
Basically looked like him.

- Backhouse wants to say that this is problematic (b/c it was meant to foster access to
justice)

- While Mac says we should provide other mechanisms for people who don’t look like me
– they don’t want to use these courts.

- She wants to say that the fact that they are who they are – is cause for serious concern.

- She suggests that the exclusion of these groups of people from the legal system has
not ceased merely b/c there is now formal equality of access. There continues to be
systemic problems in terms of access.

- One of the ways you can see these problems is by looking at the issue of diversity in the
judiciary – men continue to be overrepresented – racialized minorities are under-
represented – middle aged and older are over-represented – well educated and
reasonably affluent folks are over-represented.

- So long as these institutions are dominated by white men other groups are going to
find it difficult to access them

- She says we need to make sure that people are comfortable accessing these institutions
and the best way to do that is make sure the institutions themselves are staffed by a
more diverse population.

- Not just affirmative action type programs but also in terms of things like tuitions –
courses – encouragement of people to go into particular career paths.

- The underlying question is – is it problematic that the people who are able to access our
system are not representative of our population – is this problematic in and of itself?
BC(AG) v. Christie (2007) (SCC) ( access to justice not
constitutionally guaranteed)
- case brought by Christie – low income lawyer – wanted to declare the tax
unconstitutional – he often had clients who couldn’t pay

- he challenges the tax on the basis that it is unconstitutional b/c there is an unwritten
principle of the rule of law and in order for it to be meanginful individuals need ot have
access to court to vindicate rights.

- Barrier b/c it was increasing the costs of representation making it impossible for some of
his clients to obtain representation and the fact that he was required to pay the tax on
uncollected fees made him have to abandon his practice – and low income people
couldn’t obtain his services and thus couldn’t access justice so a breach of unwritten
principle of rule of law

- Required court to ask itself – is access to justice required by the Canadian constitution?

- BC court of appeal found it was unconstitutional – did so on basis of specific access to

justice. Said that Macdonald’s approach was impractical – preferred the defintion that
means you have the opportunity to seek representation from professionals to assist you in
vindicating your rights.

- SCC uses this definition as well from BC CA “reasonable and effective access to courts
of law and the opportunity to obtain legal services from qualified professionals, that are
related to the determination and interpretation of legal rights and obligations by courts of
law or other independent tribunals.”

- SCC goes on to say that if access to justice was an unwritten constitutional principle
it would have profound effects on the legal system – it would be a judicially imposed
legal aid system for all litigants. The government would have to create a legal aid
system that all individuals who were seeking to litigate rights would be provided with a
lawyer free of charge if they couldn’t afford a lawyer.

- Court says this might be a good thing but it would be extremely expensive and would
lead to far more people using the courts. So you would be paying for all those who can’t
now afford or get legal aid and all those who would seek it if this were the case.

- If there was this unwritten principle it would be difficult to understand certain parts of the
charter and specifically the right to counsel in criminal cases. We wouldn’t need section
10 anymore – would be redundant. As a result it can’t be the case that there is this
unwritten constitutional principle.

- Court says there may be certain contexts where individuals are entitled to legal
representation (includes s. 10 criminal context) but also other cases falling within s. 7 of
the charter. But Christie’s argument that you are entitled anytime you’re rights are being
challenged is too broad.
 - So SCC overturns BC CA decision and says the legislation was constitutionally valid.

- Usual course of events government would have been entitled to costs – but court said not
a case where costs ought to be awarded – largely b/c of context (death)

- Reaction to this case was that SCC was wrong to put so much focus on the cost of
providing access to justice. ATJ is an incredibly important value.

The Private Funding of Litigation

- rules of professional conduct 2.08

o lawyers should not accept fees unless they are fair and reasonable.

o Commentary – list of factors that the rules say ought to be taken into account like
how much time and effort was involved, whether special skills were involved,
results obtained by client, difficulty and importance of the matter, whether
special skill or service was required and provided, amount involved or value of
subject matter, results obtained, fees authorized by statute or regulation, special
circumstances (loos of other retainers, postponement of payment, uncertainty of
reward, urgency)

o You should not charge fees unless they are fair and reasonable

General Rules Solicitor’s Act s. 1-14 (fees)

o Conventional fees = fees charged at an hourly basis (governed by 1-14)

- Assessment SA s.3

o If there is dispute over payment b/c lawyer and client you can have
assessment by assessment officer of the court (SA s. 3) to either lower fee or
enforce client pay it.

o No explicit rules about what the assessment officer should look at when they are
assessing the bill

o Test on assessment (Cohen v. Kealey & Blaney) 1985

 9 factors that assessment officer has to consider

 time expended

 legal complexity

 degree of responsibility assumed by solicitor

 monetary value of the matters in sisue

  importance of matters to the client

 degree of skill and competence demonstrated

 results achieve

 ability of client to pay (interesting)

 client’s expectation regarding fee

 all of these help to determine if fees were reasonable.

o If officer is of view that it was not reasonable they have jurisdiction to make the
bill fair and reasonable

o Assessment officer tests for disbursements as well (was there an outlay and was
it reasonable)

- Fees for unnecessary steps (SA s. 7)

o Generally speaking clients are not obliged to pay for unnecessary steps in the
litigation unless those unnecessary steps were reasonably expected to be
conducive to the interests of the client.

- Fee Agreements (SA s. 15-33)

o Possible to enter into agreements with clients to be compensated in other ways.

o S. 15 – these agreements have to be in writing (for standard rates don’t have to be

in writing)

o Agreement has to be approved by assessment officer

o S. 20 – agreements do not affect cost awards (costs are assessed on the

conventional basis)

o S. 21 – lawyers cannot contract out of certain rights including the right of clients
to sue lawyers for negligence.

“Ottawa to pay 2 billion in residential schools deal” G&M (Nov. 24

2005)
- government settled class action lawsuit involving the schools for 2 billion dollars

- there were about 200 million dollars in legal fees for the litigation

- half of that is legal fees for the government (about 100 lawyers working full time)
 - rest divided b/w various law firms who represented the plaintiffs in the class action suit
including the Tony Merchant Law Group (well known class action litigator) – he has
been disciplined for billing more than is physically possible

- concern as to these legal fees – as to whether too much of the settlement is going to
lawyers.

Contingency Fees
- fee arrangements where lawyer only paid if client wins and usually they get a portion of
damages

- Ontario last province in Canada to allow them – only recently following a decision of
McIntyre Estates.

McIntyre Estates v. Ontario (AG) ( Contigency fees allowed they are

not champerty, but are regulated)
- McIntyre estates suing tobacco company – firm agreed to be paid on contingency basis.

- Sought declaration that this would not violate champerty act.

- Went up to Ontario Court of appeal – said it didn’t violate champerty act.

- Champerty Act – idea that you should not be funding litigation brought by other
individuals – shouldn’t be stirring up litigation. Particular concern in the common law
that you shouldn’t go around stirring up litigation for improper purposes. Champerty
meant that an individual would fund or actually carry out the litigation of another
individual and would get all of part of the benefit of that litigation. Idea is that courts
should only resolve disputes when individuals couldn’t settle without self-help.

- Most of Ontario’s history was that contingency fees violate champerty act.

- Court said that contingency fees on their own do not amount to lawyers funding
litigation for their own purposes. Draw on other jurisdictions – court notes that most
others have allowed these agreements and there have not been major problems with them
 hasn’t led lawyers to engage in unethical practices or to serious conflicts of interest
b/w lawyers and clients.

- There are however certain circumstances where such agreements would amount to
chmapter where agreement is improper or leads to improper outcomes

- Para 75 – a fee agreement that overcompensates a lawyer so that unfair to client is

unfair – then the fee is champerty – would amount to a windfall if you get so much
damages and lawyer gets so much when they didn’t do that much work for example

- You can’t know whether or not it is champerty until you know what the lawyer gets at the
end of litigation
 - Result of this decision – contingency fees became permissible in Ontario. Court
makes plea to legislature to pass legislation that will govern contingency fee agreements
so that its not left to courts to figure out when it will be reasonable or unfair

Legislature responds with general rules SA 28.1 and Ont. Regulations 195/04 (CFA)
- 28.1 – they are permissible

- 28(1.3) – not permissible in some types like family law

- 15 – 33 – regular rules continue to apply (agreements must be in writing, must be

assessed by the courts)

- issues that arise – can you change your solicitor if you sign these agreements?

o s. 30 says client is entitled to change solicitor but client is entitled to pay solicitor
unless the lawyer has committed some kind of negligence, caused delays, or there
is some other reasonable cause for the client to change

o s. 4.1 of Ontario regulations – lawyer cannot require that the client

obtaining the lawyer’s consent in order to settle – lawyer still has to take
client’s instructions – has to deal with possible conflict of interest b/w lawyer
and client

o s. 28.1(5) – Maximum percentages?

 Government can set max percentage

 Some jurisdictions have done this (B.C 33 in motor vehicle and 40 in

other personal injury cases)

 Ontario has declined to set out maximum percentage

• Want the market to work it out by itself

• If you do set a maximum amount the expectation is that this

would become the standard amount rather than the maximum
amount

- Contingency fees allows Access to Justice

Hypothetical: William
- William is homeless and psychiatric – beaten by police but no evidence – lawyer thinks
no chance but wants to investigate – takes it on contingency fee basis of 40%

- Later finds out there is video evidence of the attack – what should lawyer do (would only
get paid 30 000 if had charged him hourly)

- So issue of capacity – taking advantage – but also – we want to encourage this so that
 people get representation

- Early estimation of odds – how do you work that into analysis?

- So issue – what is assessment officer going to do?

- Rules of professional conduct – lawyers have obligation to charge reasonable fees – you
take risk into account when establishing reasonable fees.

Hypothetical: Janet
- janet was injured by lawn mower – wants apology – all she wants.

- Lawyer says take case on contingency fee basis – included apology as grounds – but
lawyers will get 100 percent contingency fee of damages

- And will be responsible for adverse costs – 21.18 says you cant use costs

- Imagine the lawyer gives 5000 dollars and says I want everything you win – so lawyer
purchases agreement

- This is champerty really  but is it different from contingency?

- S.A – can’t do this – concern that lawyers are not going to accurately inform their clients
about what the value of the litigation is.

- Its tricky to distinguish these scenarios.

Unrepresented Litigations.
- Canadian lawyers 2009 survey

- It costs a lot to hire lawyers

- Average 2 day trial in Ontario last year cost 25 000 in legal fees (above average yearly
income)

Civil Justice Reform Project: Unrepresented Litigants (Osborne

Report) ( helping unrepresented litigants)
- we should consider implementing self-help centres

o would have pamphlets with clear language about how to help with legal advice –
summary advice – referrals etc.

- importance of pro-bono work

 - central organization coordinating this

- lawyers consider innovative billing practices (things like contingency fee but also other
approaches to billing – so maybe block rates for certain types of litigation and not hourly
always)

- should be some kind of study which assesses why it is that there is an increase in
unrepresented litigants in Ontario and develop a profile of who they are so that proper
responses can be identified.

- Study was done by professor trebelco.

Pro Bono Representation

- Rules of Professional conduct 3.01 says lawyers have obligation to make leal services
available to the public – but no comment that they have to provide pro bono services

- Barrister’s oath UK  requires lawyers not to turn away prospective clients – but
you were allowed to if they couldn’t pay.

- Mandatory pro bono representation? (Merit)

o Australia’s proposal to require pro bono representation

o The proposal was not general (not that all lawyers have to provide a certain
number) but that any law firm that wanted to do business with the
commonwealth had to do a certain percentage of pro bono work and if didn’t
wouldn’t be able to bid on any government jobs.

o Reaction of the bar to the proposal was negative  view was that these kinds of
mandatory pro-bono requirements went against the spirit of pro bono –
created problematic requirements – should be voluntary and not mandatory

o Might restrict pool of candidates for government work b/c they are the only ones
who can afford to do pro-bono

o Government backed off on this proposal – and instead of this rule the
government instead asked that in bids for government contracts – the
information about government hours be included. So it became non-
mandatory but still a factor in the government bidding process.

Costs in pro-bono representation? (13465778 Ontario Inc.) ( pro-

bono winners can get cost awards)
- 2 numbered companies suing one another over a franchise agreement that had an
arbitration clause in it.
 - One of the steps in litigation was subject to appeal that went to OCA – one of the parties
was represented by a lawyer on a bro bono basis – successful on appeal – they sought a
cost award on the appeal – wanted unsuccessful party to pay costs.

- Issue – given that there were no legal fees here, b/c successful party was represented on
pro-bono basis – should unsuccessful party have to pay costs none the less.

- Distinction b/w fees and costs  costs are calculated based on hourly basis –
irrespective of what people are actually charged.

- Court says that there is no reason why you shouldn’t be able to get costs in these
circumstances.

- Indemnification is only one aim of cost awards  if it was sole aim then shouldn’t be
able to get them. Court says other reasons – in order to encourage settlement,
discourage frivolous actions/ defences, discourage unnecessary steps – to enhance
access to justice (in this case specifically)

- So in pro-bono cases – costs still may be appropriate.

- One specific challenge when litigants who are represented on pro-bono basis request
costs. ---- if one party is allowed to recover against other – allows for abusive process -
person is being represented pro bono is b/c party doesn’t have money to purchase paid
legal representation so if they lose the litigation even if the court orders costs against
them they wont be able to pay. So where you have one party who has no money – pro
bono – suing party who does have money – so party with money could be ordered costs if
they lose but if they win – they wont get costs – so unfair balance --- must be taken into
consideration.

- Court says that costs were appropriate in this case

- Court also notes that costs go to the party not to the party’s lawyer -- but client can
choose to give lawyer some of cost awards

- But if you want costs as lawyer you can enter into agreement with client before hand
– sort of like contingency though.

- Case was controversial – same kind of arguments on mandatory pro bono  you are
taking what is currently understood as act of charity

Advanced Interim Costs

British Columbia (minister of Forests) v. Okanagan Indian Band ( test
for interim costs)
- community says B.C forest act violates rights afforded by constitution
- tried a number of approaches to decrease the cost of the litigation (Summary Trial, point
of law etc)

- each time court responded with various procedures to have matter resolved in expedited
and inappropriate fashion – would require courts make findings on fundamental rights
without factual record – community wanted to be able to go to litigation without having
to go through expenses of putting together the evidence. They said whole reason they
were logging on crown in first place was b/c didn’t have money to pay for housing.
Certainly didn’t have money to put into litigation.

- They say that the government should pay for the litigation – do this by brningng motion
for advanced interim cost awards

- Interim cost awards = cost awards made at the outset of litigation. Governemtn would be
required to do so regardless of outcome of litigation – if government wins don’t get costs
back.

- Test for Advanced interim costs: (articulated here for first time by SCC)

o 1) litigation would be unable to proceed w/o order for advanced costs b/c:

 party cannot afford litigation

 no other realistic option to bring issue to trial (can’t go through

contingency fees for example)

o claim is prima facie meritorious (good chance you’ll succeed on the merits)

o unresolved issue is of public importance.

- Majority of the court said the Okanagan Indian band met the 3 part test!!!

o 1) unable to proceed – tried other means

o 2)

o 3) issue def of public importance – other groups too – involves honour of crown

- Dissent

o Raises set of issues about how much money the band can spend in terms of how
much money the government can spend in terms of litigation strategy- now that
government is paying, they are not allowed to

o Biggest concern was precedent this was setting. They were sympathetic to the
band. But if you are going to allow advance costs in this case, how will you ever
distinguish this case from any number of cases involving aboriginal rights or
constitutional rights in general and if you’re not going to distinguish it – you’ve
effectively created a court –imposed legal aid system for constitutional
 challenges.

o Dissent suggested that the test should be interim cost awards are only appropriate
where there is a special fiduciary relationship b/w litigants AND it is extremely
likely that the party seeking advanced costs will recover something at the end.

o Family law cases – common for one of the party’s to have far more resources
than other party. Litigation going on about division of those resources – at end of
day they are going to be divided in some way – issue is how much? So they are
going to win something – so in those kind of cases dissent though advanced
interim costs are appropriate.

Little Sisters Book and Art Emporium v. Canada (2007) ( very high
threshold to get interm costs)
- little sisters brings a challenge to the practices of Canada customs.

- They are a bookstore in Vancouver that serves LGBTQ community – it frequently orders
materials from U.S – they were being held up by customs – confiscated on the grounds
that they were obscene.

- They argued that customs was discriminating against them on basis of sexual orientation
– same materials were clearing customs fine for other organizations.

- S. 15 issue (sexual orientation)

- SCC found that they were in fact discriminating against this bookstore – but court did not
offer remedy – bookstore was asking for having legislation about obscenity to be stricken
as unconstitutional.

- Court said nothing wrong with legislation but problem with how it was being
implemented.

- Challenge for little sisters  by the time it got to SCC Canada customs had indicated that
practices had changed – no longer discriminated against sexual minorities – new
processes were not discriminatory

- SCC accepted that – declared that prior practices were unconstitutional – but provided no
other remedy b/c accepted argument that current practices were not discriminatory.

- Little sisters wins in 2000 but no remedy

- Years later – still feels like being discriminated against – still having stuff held up – so
wants to challenge current application of legislation – wants to argue they continue to be
unconstitutional and this time wants a remedy.

- Will try to argue that government had opportunity to try to implement legislation in
a non-discriminatory way
- problem is to make this argument costs a lot – have no money and revenue is being
held by customs.

- So make motion for advanced cost award based on Okanogan

- Now court is in position that dissent warned against – have to distinguish

- In this case they assert that advanced interim cost awards are extremely exceptional –
should only be where there is an injustice against the litigant personally and against
public at large ---

- Problems with LS application

o So is the matter of public importance, irrespective of the outcome of the case

(here court says int his case only of public importance only if they win, and
if its just about whether 4 books were obscene not widespread public interest) So
only way there is interest of public interest – if they prove subject to systemic
discrimiation.

o Little sister’s interest in litigation is restricted to the 4 books. They’re actual

non- public interest standing is only with respect to these 4 books. Court said
you could resolve dispute over these 4 books w/o having to get into issue of
systemic discrimination. Part of Okanoganon test requires no other way
matter could be litigated – but here could be to restrict case to the issue of
the 4 books. So if you are just looking at potential injustice to litigant
invidivually – you can ask them to litigate only the 4 book appeal. And with
respect to larger issue – you can get around that by saying only injustice if they
are right – and not kind of case where advanced costs are appropriate

- In spite of sympathy - this is not a case where advanced costs are appropriate

- Dissent

o Written by same judge who wrote little sisters 1 – Binney said not to give remedy
– on basis of assurances that practices have changed.

o Hes pissed that there is prima facie evidence that government has not made sure
of assurances.

o So he says that characterizing this case about being about 4 books is completely
mischaracterizing what is at stake in this litigation  what is at stake is question
of whether government is complying with previous SCC decision and this issue
is one of public importance so appropriate with Okanogan test.
Abdelrazik v. Canada International Trade (Min. Affairs and
International Trade) ( strict application of interm costs, need
to exhaust all monetary options)
- detained at Sudan

- tortured

- released from detention but unable to return to Canada b/c government won’t give him
passport b/c he is on UN no fly list – unlawful for anyone to give him any money

- he wants to challenge government’s refusal to give him passport – violates section 6

(right to enter and remain in Canada)

- cant be unrepresented litigant b/c he is stuck in Sudan. So needs a lawyer

- can’t get legal aid in Canada b/c he is resident of Sudan now

- can’t get contingency fees b/c not money

- so he obtains pro bono representation – who brings motion for advanced interim costs –
he says he’s taking case on pro bono basis – but not sure he will be able to keep doing it.

- He also argues that nobody else can fund this litigation b/c of anti-terrorist regulations
which say you can’t provide money to anyone on UN no fly list.

- Federal court disagrees  continues recent trend of applying test for advanced costs
in a very restrictive fashion. Says that b/c advanced costs are only appropriate in
exceptional circumstances – the person seeking them has to show that they have
exhausted all other opportunities for funding the litigation. So court says it is not
enough that he has indicated that he is re-assessing on continual basis – more is needed –
court also notes that there is some disagreement as to whether or not anti-terrorism
legislation allows for exceptions – allowing amnesty international etc to fund – so not
sufficiently clear that court could make announcement on that issue. So first he should
exhaust that possibility before asking for interim costs.

- So bc of possibility of continuing on pro bono and trying to get exemption from anti-
terrorist legislation – has not established that there is no other way for litigation to
proceed so fails on Okanogan test.

- Worry that there are possibly well-founded claims about government engaging in
problematic behaviour – and cant afford to bring claims – court notes this but can’t do
judicially imposed legal aid

Legal Aid
Legal Aid Services Act 1998
- areas of law

o criminal law

o family law

o clinic law (poverty)

o mental health law

- programs

o duty counsel – lawyers go to particular courts to assist unrepresented

individuals

o certificate program – legal aid provides certificate which individuals can take to
lawyer of their choice and lawyer will provide services at set rates for certain
number of hours and legal aid will pay the fees.

o LAO staff offices – can go to get certain kinds of legal assistance (example
refugee claims)

o Legal clinics – provides legal services to low income residents of Ontario. (ex.
Parkdale)

Michael Trebilcock “Report of the legal Aid Review 2008” ( lack of

funding for civ cases)
- bulk of people assisted by legal aid Ontario are people who are assisted through
legal aid staff or through duty counsel

- expenditures don’t reflect number of people who are assisted

o duty counsel only costs 11% and clinics cost 20%

- most of the money for the certificate program is going into criminal law certificates

o 6 million going to civil litigation certificates and `100 million into criminal law

- eligibility requirements

o income has to be $15 000 or less if you are an individual

o so extremely limited group

- decrease in the amount of money provided to legal aid Ontario over the same period of
time that government expenditures have increased
Legal Aid: New Funding ( increase in funding)
- there was a boycott by criminal lawyer associations where they refused to represent
individuals on legal aid certificate basis in major criminal cases (guns etc) b/c they
wanted to put pressure on government to re-invest more money into legal aid

- boycott was success.

- September 2009 AG Ontario announced that they would pump in 150m of new
money into legal aid – over 4 years - 6m a year by 2012

- As a result they have increased the tariff (amount of money that lawyers who take
certificates get paid per hour)

- Have also moved to a block fee arrangement for some legal aid lawyers – so rather than
charging them on hourly basis you take certain cases at a set rate – to encourage counsel
to be more effective with use of time.

- Criminal lawyers association negotiated the outcome and eventually did support the
outcome and have stopped the boycott.

- Legal aid has recently said that they plan to move the services provide in civil litigation
side away from certificate program and into clinical poverty law program

- * although there is funding for low-income residents of Ontario for certain areas of law
(especially for crim) legal aid Ontario has not been a major player in civil litigation
in the province

Problems with new funding:

- Trebelcock recommended finding ways of providing assistance to residents of

Ontario involved in civil litigation and especially middle-class Canadians. Eligibility
is so low that the vast majority of residents do not benefit from legal aid.

Class Actions
- means by which jurisdictions have tried to enhance access to justice

Western Canadian Inc. v. Dutton ( policy reasons for class actions

and test for it)
- 3 policy arguments towards the use of class actions (picked up on for cases afterwards)

o judicial economy (class actions can reduce the cost of litigation by combining a
set of individual claims)
 o access to justice (by allowing plaintiffs to combine claims, litigation that would
not be viable individually, may be viable collectively)

o tool of behaviour modification

 potential defendants engaging in activity that harms a large number of

people but doesn’t harm any one individual sufficiently to motivate them
to go through expense of bringing litigation against you, the rules with
respect to actionable negligence can’t get you to stop engaging in
harmful activity b/c nobody has incentive to bring litigation against you
and you know this.

 Class actions can put stop to that – now you know that this is a
possibility.

- Case also sets out common law test for class actions

o Most jurisdictions have specific legislation setting out when class actions are
appropriate.

o This case establishes that even where a jurisdiction has not passed
comprehensive class action legislation, they can nonetheless be undertaken
through the common law

o Test:

 1 - the class is capable of clear definitions (have to show who is member

of the class)

 2 - Issues of fact/law in common to all members of the class

 3 - Success for one member of the class (representative plaintiff) will

mean success for all members of the class

 4 - Proposed representative plaintiff adequately represents interests of the

class

 5 - Discretion

• Even if you meet 4 parts – court still has residual discretion to

weigh the benefits of a proceeding on the basis against any
unfairness on the defendant

- Court runs through test in this case (the test is for jurisdictions without specific
legislation – Ontario has legislation)

o 1 – can be identified (individuals investing in shopping centre project)

 o 2 – issues of fact in common (did company breach fiduciary obligations?) they
have these issues in common even though there are other issues that need to be
resolved but still are common issues

o 3 – evaluate step 3 specific to the common issue rather than specific to outcome
of whole litigation (if one member establishes that company breached fiduciary
obligations that will resolve matter for other members of the class)

o 4 – no indication that the representative plaintiff did not adequately represent

interests of the class as a whole.

o So action does meet first 4 parts of the test.

o 5 – says no unfairness to D that would outweigh benefits of proceeding so allows

litigation to proceed on class action basis

- ** importance of this case is the 3 policy objectives and the general approach taken in the
case, specifically the assertion of the court that class actions should be approached
generously, they are important tools for enhancing access to justice and courts shouldn’t
take unnecessarily restrictive approach to class actions.

- general outline of the test although varies b/w jurisdictions, is generally similar

Class Proceedings in Ontario:

Class Proceedings Act (331)
- certification (s.5)

- opt out procedures (s.9)

o once class action litigation is certified if individuals do not take active steps to
opt out of the litigation, they will be included as a member of the class and are
therefore bound by the litigation.

o This means you are bound by result – can’t go sue individually

o If you do want to sue individually – you have to opt out.

- Notice provisions (17-23)

o Variety of measures – where possible to contact them individually – not possible

– public announcements (in newspaper for example)

- Separate Proceedings for individual cases (s. 27)

o Even where there are individual issues – it is possible to have litigation for these
individual issues and still have class action litigation with respect to common
 issue.

- Court Approval of Settlements (s. 29)

o Court needs to approve all settlements

o If representative plaintiff and company want to settle – court has to approve this
b/c the RP may not have all the interests of the members of the class at heart.
(ensure that it is beneficial to all members of the class)

- Costs (s.31)

- Fees (including contingency Fees) S. 32-33

Certification: Section 5 of CPA ( pg 336-337)

- motion for certification (s. 2-3) ( pg 338)

test for certification (s.5)

o 1) pleadings disclose a reasonable cause of action (can’t be frivolous)

o 2) identifiable class (identifiable – way of knowing who is a member)

o 3) common issue

o 4) preferable procedure (class action is preferable procedure to resolve the

common issue)

o 5) representative plaintiff who:

 (a) can fairly and adequately represent class

 (b) produces workable plan for proceeding

 (c) has no adverse interests on the common issue to other class members

Hollick v. City of Toronto ( application of test for certifcaiton of CPA

test and policy rationales for certification)
- facts – a dump in Keele and Hollick wants to bring class action litigation on behalf of all
residents who are negatively impacted by the dump (by physical and noise pollution)

- Hollick introduces evidence that there has been a number of complaints by residents of
the dump

- Asking for 500 million dollars in general damages and 100 in punitive damages to be
shared across 30 000 residents
- City opposes motion for certification for class action

- Goes to the SCC which has to interpret whether or not this is a case that should be
certified under section 5

- SCC runs through test of s. 5  Says 2 areas of concern:

o Passes 1, 2,

o Common issue? In interpreting part 3 (common issue) court has to ask itself
whether or not the class is unnecessarily broad?

 Asks whether class could be more narrowly defined without

arbitrarily excluding people who share a common interest?

 Here court says P brought evidence that there were common issues
among the members of the class. Complaints raise common issue of
whether city owes duty of care to these residents? And so common issue
is met. (can’t reasonably exclude certain members without excluding
people who care this common issue)

 So 3 is met

o 4 – preferability? The way you determine this part is to look at the entire
litigation with the policy aspirations of class action litigation in mind

 1) judicial economy: this litigation will not further judicial economy b/c
there will be serious individual issues that will need to be resolved before
members of the class can be compensated. The pollution will affect
members differently depending on how close they live to the dump etc.
so will still need separate proceedings and those issues are more
significant than the common issue.

 2) access to justice: will still be access to justice if they deny this

• city created trust fund where they put 100 000 into trust which
would be distributable to residents near the dump in the event
they were negatively impacted the dump. Amount of recovery
limited to 5000 dollars.

• So if you have been negatively impacted by dump and amount of

damages is low – your remedy would be to seek compensation
from this small claims trust.

• If you are significantly impacted by the dump (live next to it)

you have sufficient interest to proceed through individual
litigation.
  3) behaviour modification

• Concern for this category is that in the absence of some way by

which people who are harmed by activities of defendant – they
will continue with harmful activity.

• This is not an issue here b/c there are other regulatory processes
that can be used (environmental legislation in place)

• Plus other procedures identified by courts can be of assistance

here (small claims trust fund process, or individual litigation)
either will result in recovery and therefore concerns with respect
for behaviour modification can be dealt with

 So on all three policy rationales this class action litigation fails so as

a result class action litigation should not be certified. (b/c fails part 4
of preferability so then don’t need to go part 5)

- What is troubling about this case is that these rationales could probably be applied
to all motions for class actions. (individual claims will always be a possibility for
example)

Cloud v. Canada ( test applied for certification of class action part 4

satisfied)
- facts

o students/ and their families who had attended residential school run in part by
religious organization and part by Canadian government

o school around from 1820s – 1960s

o brutal conditions at the school

o claimants allege that purpose of school was to eradicate aboriginal traditions (this
included physical and cultural and spiritual abuse)

- issue – should this class be certified?

- Divisional Court’s holding is similar to Hollick

o Part 4 – b/c individual issues predominate (scope of damages, whether they are
attributable) will have to be resolved separately – so class action litigation will
not resolve any judicial economy

- Ontario Court of Appeal

o Issue in common relates to did the church, school, and government have
 fiduciary obligations towards the students? Complicated question b/c applying
law of fiduciary obligations from 1920s? and this is something that all members
of the class will have to establish if they are going to succeed. (in common)

o Other issues in common  aboriginal rights at stake, was there a general breach
of fiduciary obligations with respect to idea of attempting to eradicate culture of
aboriginal community? By resolving these issues through CA – you’ll make the
whole thing more efficient and therefore you have judicial economy aspect.

o b/c they disagree with that part – they have to look at other 2 policy reasons

 access to justice – many members are relatively poor, have serious

psychological conditions, asking them to pursue this individually is not
realistic for most of them. So allowing CA will enhance access to justice

 behaviour modification not relevant, school has been closed since 1969

• potentnail arguments though are things like – precedent you are

setting – more broad approach that court doesn’t get into.

o On the whole court says that CA litigation is preferable (so number 4)

o So court certifies the class.

- Court settled in 2006 for several million dollars as part of the larger residential school
settlement process. Have established procedures by which individuals can show that they
are entitled to compensation for their specific damages.

- Arguably limitations period would have expired – in spite of that the parties decided to
settle.

Settlement (s.29) of class action.

- court is required to approve any settlement if that settlement is binding on members who
have not opted out

- settlement w/o court approval is not binding but with court approval the settlement binds
all members of the class

- rules with respect for court authorization also apply to discontinuance, abandonment and
settlement – if you bring litigation you can’t stop w/o court approval

- LOOK AT RULE 29 in slide.

Costs and Fees for class actions
costs (s.31) ( pg 394)
o court has general discretion with respect to cost awards

o individual representative plaintiff who bears in principle the burden of any

adverse cost awards

o if you lose – you’re required to pay costs to defendant as RP

o other members of class are not responsible for costs.

o When court authorizes discretion to use costs – court should consider whether
this was a test case, raised novel point of law, or regarded matter of public
interest. In those cases they may choose not to award costs even if RP is
unsuccessful

o But presumption remains that costs will be awarded as usual procedure

o In B.C – no costs against RP unless litigation is frivolous or abuse of process.

o Often contingency fee basis – so there is agreement about costs

o Often choose RP with no assets so even if cost award - wont have to pay.

Fees (32-33) (399)

o Before contingency fees were allowed in Ontario, the CPA did allow for
contingency fee agreements

o Law Society Act – has specific professions regarding CA (59.1-59.4)

 Allow for RP to apply for funding from Law foundation of Ontario

 Class proceedings fund funds CA litigation

 Test for when available set out in these provisions – looks at available
budget, the importance of the litigation.

 If you get funding, Fund will pay for cost of litigation and adverse cost
awards and if you win either in court or through settlement, the fund gets
10% of whatever you recover (sort of a contingency fee arrangement)

 Seldom used. b/c lawyers don’t want to give up the 10%

Cassano v. TD Bank ( settlement in Class action proceedings were
money goes to behavioural modification programs)
- individual card holders of TD Visa cards were upset by the Exchange Rates being paid
when purchasing services and products above (higher than usual exchange rates)

- the effect on higher ER on individual cardholders was not particularly large – no

incentive to bring litigation but total amount that TD made was significant (160M)

- CA litigation commenced

- Settlement – RP agreed to take 55M after 11 years of litigation

- Under terms of settlement – 15m goes to legal fees including levy to Law Foundation of
Ontario, 10m put into account that individual card holders can apply for
compensation.

- But problem is that hard to know who is entitled to compensation

- TD says process of finding out who gets it would cost about 15m dollars

- So 28m of 55m settlement goes to cypress award - first half of it goes to program to
enhance access to justice including programs in legal ethics at law school and other
half goes to social development program to enhance financial literacy of low income
Canadians.

- Is this settlement appropriate? Should court have approved settlement? (the members of
the class action didn’t really benefit personally from the settlement)

- The court in deciding whether to approve the settlement says there are 9 factors to be
considered:

o 1 – likelihood of recovery

o 2 – amount and nature of discovery evidence

o 3 – settlement terms and conditions

o 4 00 recommendation of experienced counsel

o 5 – future expense and likely duration of litigation

o 6 – number of objectors and nature of objections

o 7 – presence of good faith and absence of collusion (arms length negotiation)

o 8 – extent of communications with the class

o 9 – dynamics of bargaining
 - court said looking at these factors, the settlement was appropriate

o b/c of lengthiness and complex case – hard fought litigation conducted with
tenacity and skill – said 11m to the lawyers was appropriate

o court also noted that none of the members of the class except for one person
objected to the terms.

- Larger issue of the case – whether or not these Cypress awards are appropriate

- Cypress awards are designed to deal with behaviour modification

- TD bank was in fact charging excessive ER rates and the total amount of money they got
out of it was substantial. If they are only able to distribute 10 /65m dollars to members of
the class, they have obtained 150m by this practice and has no incentive to change it in
the future.

- So in situations where you cannot identify all the members of the class and who is
owed what you need a mechanism to ensure behaviour modification

- Lawyers are basically saying that the lawyers in TD bank were engaged in unethical
behaviour  so better training in law school so that lawyers in corporate world don’t do
this.

INTRODUCING TRIALS
- most cases settle prior to trial so most litigation is really about trying to reach the best
possible settlement

Rules on trial (52)

- 52.03  court appointed experts (1148)

o different from expert witnesses of parties

o there to assist the court to help the judge.

o Used typically when cases involve extremely technical evidence that is not easy
for the judge to review

o So expert reviews the technical evidence and make a recommendation

- 52.07  order of presentation in a trial (specifically with jury trials but order of
presentation is usually the same regardless)

o plaintiff begins with opening statement

 o Defendant can then request opportunity to make opening statement. Typically in
jury trial they are allowed to at this stage.

o Then plaintiff presents case – calls witnesses

o At this point D has two options:

 1) make a motion for non-suit (D is saying that P has not established the
case) if you are successful in filing motion for non-suit case will be
dismissed, if you are not successful there are cost consequences

 2) OR/ if not successful  D demonstrates his case – calls witnesses in

order to introduce

o Plaintiff is entitled to lead any rebuttal evidence that is necessary

o Defendant can introduce rebuttal evidence

o Closing statements

- 53 + Evidence Act & Common law – evidence

o most rules are found in evidence act – subject to extensive case law interpreting
provisions of it

o evidence is introduced normally through oral testimony

o if you want to introduce physical evidence (ex a letter) you introduce it by asking
author if they wrote it, then enter it as physical evidence (so generally have to
introduce it through oral testimony)

o 53.04 – compelling attendance (1173)

 party can compel another party or a third party to attend trial for
purposes of giving testimony

- Hearings in Public – CJA s. 135

 Hearings are open to public by default unless you can persuade court that
they should be closed (by showing would seriously harm – interpreted
narrowly by courts)

 General view in case law that hearings should be made in public

- Court practice/etiquette – unwritten rules – but have to be followed

o Ex - My colleague / my friend (opposing counsel), your honors

o Robes – there to remind you you’re playing a role – could be seen as hierarchical
 (differentiate lawyers) or maybe equalizing (can’t tell what you’re wearing
underneath!)

Jury Trials
- parties are entitled to have disputes heard by a jury

- 47.01 and CJA s. 108 – Jury notice

o 47.01 -- request from party that trial proceed by way of jury rather than by way
of jury alone (1076)

o CJA 108 – circumstances in which you are not entitled to a jury trial (12
specific types of cases seeking certain kinds of equitable relief, dealing with
types of real property, execution of trusts,)

o The reason why juries are not allowed in these kinds of cases is b/c they are cases
over which the court has discretion whether or not to offer remedies.

o Ex – injunctions – court has discretion over what type of injunction it will

order.

o Juries are good at making factual findings, but not as effective when they are
asked to creatively come up with order that would be in keeping up with
principles of justice.

o So unless you fall into these categories you can proceed by jury unless the
court determines it would be inappropriate. Court will make this
determination if other party responds with motion to strike jury notice.

- 47.02 – Striking out jury notice (1078)

- procedure for jury selection set out under Juries Act

o pool of candidates, chosen randomly

o you are entitled to object for cause (conflict of interest, prior knowledge etc) or
without cause

- Role of Judge v. Role Jury

o Judge – to make legal findings

o Jury – make factual findings and apply legal tests to the fact.

o Jury can’t decide questions of law (whether or not piece of legislation is

constitutional for example)
 - Outcome: 5 of 6 Jurors must agree (CJA s. 108)

o If you can’t get 5/6 to agree = mistrial

Cowles v. Balac (Ont. CA) 2006 ( declining when appropriate to have

jury trials)
- Plaintiffs were malled at African lion safari

- African Lion Safari wanted issue to be heard by jury

- Plaintiff did not want jury trial

- Litigation was going to come down to – did the plaintiffs in this case intentionally lower
the windows in order to take pictures and feed the lions? There was evidence that the
plaintiffs had in fact lowered the window. Lawyers for plaintiffs wanted to exclude this
based on hearsay.

- ALS was of the view that if this evidence came before a jury, that the jury would be
likely to believe that the Plaintiffs lowered their windows, Plaintiffs were of the same
view so they brought a motion to strike the notice for a jury trial

- Trial judge granted motion to strike the jury notice on the basis that the litigation was
complex, and too complex for jury to be able to make informed decisions and therefore
should be left to judge.

- Plaintiffs won 2.5million

- Decision appealed by ALS on the basis that the judge was wrong to strike the jury notice
(should have proceeded by way of Jury Trial)

- OCA – Majority said that the jury trial was correct

o Agrees it was complex litigation

o At outset it appeared there would be multiple medical experts presenting

technical reports and might not be possible for jury to decide on what was
accurate

o Concern that in this case it would be particularly difficult to make findings with
respect to damages (future income etc, b/c they were young)

- Dissent (Borins)

o Right to a jury trial is a substantive right that shouldn’t be taken lightly

o Complexity issue – length of trial is irrelevant, juries are capable of dealing with
complex stuff – complexity of legal issues is also irrelevant. Not job of juries –
 court has obligation to explain complex legal issues and tests to the jury

o Prior to trial – number of evidentiary issues that would have to be resolved – but
typically one eve of trial – parties agree to restrict number of evidentiary issues
that will be contested. So at that point judge could have stricken notice for jury

o So court says A) its not too complex for a judge to decide B) even if it did appear
at outset, judge should have taken wait and see approach.

o Judges are excessively sceptical of juries ability to deal with complex cases

o Looks at criminal law – juries do a good job

o US constitutional right

- Leave to appeal to SCC was declined

Civil Justice Reform Project: Juries – Osbourne report

- “in 2005-2006, there were 6,839 civil trials heard. Of these trials heard, 1598 of 23%
were jury trials. The vast majority of these trials involved litigation arising from motor
vehicle accidents”

- insurance companies don’t like this haha

- although there is some opinion to the contrary, based on my experience and of others, its
clear that most civil trials take longer than same trial would have taken before a judge
sitting without a jury. The offset is that the rate of settlement for civil jury trials is higher
than for non-jury trials

- so more expensive but less likely to go to trial – in part b/c outcomes are less predictable
so most risk to both sides in not settling

- recommendations:

o jury trials under simplified procedures only with leave based on broad public
interest grounds in simplified procedures

o in regular case judges should decide whether to dispense with juries based
on:

 (a) whether justice will be served better with or without a jury, after
considering all relevant factors, including the facts of the case, the
technical nature of the evidence, the complexity or uncertainty of
relevant law, predominance of substantive legal issues over factual
issues, interwoven issues of fact and law, counsel’s positions

 (b) whether party would be able to obtain a fair trial before a jury
  ( c) whether jury’s service would be unwarranted inconvenience to
jurors, considering the value, nature and importance of matters, parties
interest in a jury trial and likely duration of the trial

 where, in the opinion of the court, inflammatory conduct by a part or

counsel or inadmissible evidence has been placed before the jury.

- We have not as yet, changed anything as a result of this report, partly b/c the rules are
contained in legislation

Enforcement
- go to trial, get judgment, then what?

- 59 – orders

o court orders particular type of relief being requested

o parties write the order once they know what court has decided

o parties will draft order and if they can agree on it, they have to register/sign off
on that order

o if they can’t agree they have to go to court and the judge will decide on the order

- 60 – enforcement or orders, execution act etc. (1280)

o enforcement measures are governed by rule 60 and other legislation like

execution act

o key issue: solvency (if they don’t have the money, no way of collecting it) want
to know this before trial

o 60.18 examination of debtor – allowed to ask debtor series of questions about

any assets they may have and debtor has to answer, if they don’t can be found in
contempt (1311)

o 60.11 – contempt. If judgment debtor does not comply with court order, once
possibility is to bring a motion for contempt. Problems with motions for
contempt is that you cannot bring a motion for contempt where court order
in question is for payment of money (1298)

o 60.7 – writ of seizure and sale – process through which you can have an officer
of the court/sheriff seize property of judgment debtor, sell it and give you the
proceeds. (1283)

o 60.3 and 10 – writ of possession – you can obtain possession of the land – fairly
 restrictive usually to cases involving the land in particular

o 60.4 – writ of delivery – an obtain personal property or judgment debtor - order

of court that person has to give you property in question

o 60.9 – writ of sequestration – in terms of 60.4, allows officer of court to go and

get it.

o 60.8 and wages act and CJA s. 143.1 – Garnishment – can garnish any debts
owed to judgment debtor, includes wages (most common). You can garnish
100% of any debts owed to debtor. So if they have a bank account with 10 000
dollars, the bank owes the debtor that, and you as judgment creditor can go to
bank and garnish that account. Can only garnish up to 20% of wages (Wages
act) CJA 143.1 tells you can’t garnish welfare and other social services
payments either directly or if in bank account from that.

Jantunen v. Ross (1991 Ont. Div. Crt)

- garnishment is something you get vis a vis the person who owes the judgment debtor
money

- so in this case vis a vis the restaurant, so if you wanted cash tips you would have to go
after individual patrons – wouldn’t work.

- To what extent should tips be treated as wages? Technically they are not wages – not
subject to a number of rules about wages under law – so technically you ought to be able
to get 100 % of the tips b/c they are not wages – simply a debt owed by the restaurant to
the judgment debtor.

- Court here says even though they are not wages, the policy reason for limiting wages to
only 20% of wages applies equally to tips b/c waiters get most of their compensation
through tips so they should be treated like wages for purposes of garnishment so they can
up to 20% of wages and tips.

- Wages Act 1980 “80% of a person’s wages are exempt from seizure or garnishment”

Example: Robert
Robert is a 2nd year JD student at the Osgoode Hall Law School. He is a judgment debtor
for $5,000. He has $2,000 in a bank account at RBC. He owes Osgoode $8,000 in
overdue tuition, and has $50,000 in outstanding student loans. He has been offered a
summer student position at a Bay street law firm, though he has not yet accepted the
offer. He has also been offered a $7,000 contract for the preparation of a legal memo over
the summer for an NGO working in the field of environmental torts. He has not yet
accepted the offer, but this is his main area of interest. Robert owns a second hand car,
with a market value of $3000. Robert lives with his common law partner, James. James
owns the house in which they live. The house is worth $400,000 and has an outstanding
mortgage of $350,000.
- First you need to examine the judgement debtor and ask if he has a bank acct and
what the balance is, what branch, other assets, debts, etc.
- First attempt to garnish the full amount in his bank account (unless the $ came
from welfare)
- Attempt to go after the car – PPSA, seizure and sale provisions – if you seize and
sell a car, you only get the money in excess of $5000 if they only have one car.
Therefore in this case, trying to go after the car would not be helpful
- If he accepts the Bay street offer, you can go to the Bay street firm and try to
garnish 20% of his wages
- If he accepts the contract with the NGO – is this wages or is it simply a
commercial transaction where the NGO is purchasing services without going into
an employment contract.
o If it is not seen as wages, you could get the full amount
o However the case we looked at said we should not use a technical
approach but to look at the purpose of the Act and therefore the purpose of
his $ from the NGO is a form of wages
- The creditor may try to persuade the common law partner to pay the debt

GLOBALIZATION HUMAN RIGHTS AND CIVIL

PROCEDURE
International Covenant on Civil and Political Rights
- A very important act for human rights
- There are various substantive rights in this as well as procedural rights
- Procedural rights:
Art. 2.3(a): Each State Party… undertakes… to ensure that any person whose rights or
freedoms as herein recognized are violated shall have an effective remedy.
- Set up mechanisms so people can be compensated for the violations of their rights
Art. 14.1.: All persons shall be equal before the courts and tribunals. In the
determination… of his rights and obligations in a suit at law, everyone shall be entitled to
a fair and public hearing by a competent, independent and impartial tribunal.

“Globalization, International Human Rights, and Civil Procedure”

Trevor Farrow
– the rules of civil procedure and how they give effect to human rights laws
- Rules of procedure should be taken seriously when looking at international human
rights
- ICCPR contains provisions requiring parties to create effective remedies
- There are a # of cases where parties have sought to use domestic litigation for
human rights violations
- Refers to Union Carbide v. Bhopal: UC was operating in Bhopal and there was a
 large environmental disaster with thousands of people killed by a gas leak, and
then litigation began in the US and settled for 1/8 what the party wanted.
- UC was a New York based company and the people who were injured by the
activities sought to bring class action litigation in New York because the tort
system in India was not sufficient to handle mass environmental torts: lack of
precedence, lack of class action procedure, and problems with enforcement, you
would need to go to NY to enforce any Indian judgement anyways, courts were
significantly backlogged, the Indian government also thought the case should be
tried in NY
- UC wanted the case to proceed in India because that is where the disaster
happened and where the victims were. UC brought a motion to dismiss this
and the court granted the motion as the more convenient forum
- Rather than going through the procedure for years and years in India, the plaintiffs
settled for much less
- Professor Farrow says this is an example of the courts failing to take
seriously their role in ensuring there are effective remedies for International
Human Rights violations – in this case the right to life and physical security.
The NY courts ought to have given more serious thought as to whether India
could provide an effective remedy for the violations
- UK case is also discussed by Farrow: asbestos company that was operating in
South Africa. # of the workers were injured and class action litigation was sought
to be brought in the UK. The UK courts take human rights into consideration and
the courts suggest that the forum non conveniens test is whether the plaintiffs are
able to get justice in the forum and looked at issues such as the unavailability of
legal aid, lack of contingency fee basis
- Third case looked at involving a Canadian mining company based in QC that
operates a mine in Ghana where there is a massive spill of pollutants into a river
and the victims were made sick as a result and the victims wanted to bring a class
action law suit in QC. The legal system was held to be inadequate by the victims
saying that the legal system was corrupt and in a state of collapse. The QC courts
found that justice could be done and Ghana was more closely tied to the spill and
therefore the convenient forum was Ghana
- In these cases, there is room for the courts to use an analysis of access to
justice. The court should consider these issues, but the record is mixed about
how seriously the courts take these concerns. Farrow says they need to take the
issue more seriously
- Jurisdiction and forum non conveniens and class action law suits are also
addressed – can you bring class actions for various human rights violations where
victims are citizens of various countries
- Farrow argues that if a country is held to be the forum conveniens such as India,
then NY should adequate the award and assist in the enforcement of any judgment
given by the Indian government

Presbyterian Church of Sudan v. Talisman Energy

- Talisman is a Canadian company that was operating in Sudan. The argument is
 that Talisman is either directly or indirectly involved in human rights violations
including genocide and ethnic cleansing in Sudan and this is being done in
conjunction with the state of Sudan
- P argues that Talisman and the Sudanese government are trying to move people
off of the oil lands
- P wants a class action law suit in the US because of the Alien Tort Claims Act
that the US has for any violations of international law
Alien Tort Claims Act:
- “The district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the
United States.”
- There is no equivalent act in Ontario, which is why the victims wanted to sue
in US. There are other torts in Canada that could have been used but they
could not sue directly for international human rights violations, i.e. to sue
Talisman for genocide
- Talisman argues that the preferable forum is either Sudan or Canada. The courts
in Sudan are controlled by the government and the Sudanese government partook
in the genocide so the court agrees that Sudan is not an appropriate forum
- Canada is problematic because Canada does not have an aliens tort act so they
cannot sue directly for what they are most concerned about. Also, the law of
Alberta would apply Sudanese law due to Canada’s choice of law general rule.
- The court holds that US is still a forum that should exercise judgment because you
should respect the choice of the plaintiffs, the US has an interest in ensuring that
there violations to human rights are vindicated, the P want to pursue in NY and
Talisman is a sophisticated corporation so they can come to NY without a
problem, comity (respect for jurisdiction) should not be a decisive factor, and it
was not sufficiently clear that the Canadian government was opposed to the
decision moving forward in the US.
- The court also disagreed with Talisman’s argument that the case in US would
interfere with US foreign policies as the US was in the midst of a peace dealing
with Sudan, but the court did not find this persuasive.
- The litigation then continues in NY but the P did not have adequate evidence so
Talisman brought a summary judgment for insufficient evidence for an
intentional human rights violations
- Nonetheless, the decision to have the case heard in the US changed
Talisman’s behaviors as well as other companies in the oil and gas sectors.
- This case raises questions as to whether Canada should pass our own version of
the Alien Tort Claims Act
o There may be concerns about what this may do for judicial resources
o Companies may be less likely to headquarter themselves in Canada – as it
stands Canada is huge for companies in the mining and gas sectors and
there is a concern that companies would go elsewhere
o The US has more capacity to deal with these issues
o There are more companies in the US so it is easier to enforce foreign
judgments
 o There is something imperialistic about this type of legislation. What this
rule does, it is makes it possible for people to sue in the US for activities
that may be completely lawful in other jurisdictions

Ramirez v. Copper Mesa Mining Corp.

- Statement of claim between Copper which is a Canadian company and opponents
of a mining corporation in Ecuador
- Security forces are allegedly operating at the request of this Canadian mining
corporation and they are making human rights violations including infringing on
freedom of speech
- Want to sue the directors of Copper and want to sue the Canadian stock exchange
- Their claim against the Toronto stock exchange – simply by listing the stock, they
are allowing people to fund the company even though they are aware of the
alleged human rights violations. The TSX is one of the most important sites for jr
mining corporations to raise funding and the TSX does not have sufficient
policies to ensure that companies that are listed respect human rights laws and as
such the TSX is complicit in the human rights violations
- The victims want significant punitive awards because only damages will not be
sufficient to make the TSX stop listing these companies, so they asked for
hundreds of millions of dollars.
- The TSX will likely argue that the causal chain is not sufficiently clear
- Another argument may be that the case should be brought is Ecuador. The court
will look at issues such as comity and there are not as significant concerns about
human rights concerns in Ecuador as opposed to Sudan.
- The plaintiffs could argue that the case is less about what happened in Ecuador
and more about organizational responsibilities and this is an issue that is tied very
closely to Canada.
- The plaintiffs will argue (similar to Farrow) that the quality of justice is possibly
not the same as in Canada and the Ecuador government may have a strong interest
in ensuring foreign companies feel they can operate without being subject to
litigation so they will continue to do so

Bill C-300
– for Canadian extraction companies working abroad for corporate responsibility
- Would give effect to voluntary codes that companies have asked to sign on to
- These codes would include norms about international human rights
- The bill does not establish effective remedies in that it does not aim to
provide compensation but rather to publicly shame companies and there
would be impacts on financing from the government, for example lack of tax
breaks
- There is evidence that when companies voluntarily agree to an agreement they are
more likely to enforce them, while other argues that this bill lacks teeth
Concluding Remarks
- Retain a general sense of civil litigation in Canada and abroad
- Process matters in day-to-day legal practice
- You can approach and understand the legal system from various ways
- A Civil Action – purpose of the court: dispute resolution
- A Few Good Men – purpose of the court: Truth Finding – one of the norms is that
courts ought to determine issues on the merits. Modifications of the rules for
example principles of proportionality give a trade off of accuracy and the costs of
litigation may be problematic if you see court as a truth finding mechanism.
Aboriginal rights cases where courts will only make constitutional determinations
on a full record. Importance of rules of an open court. Rules on perjury. Rules
of professional conduct that prevent lawyers from allowing clients to testify if
they think they will lie
- Philadelphia -- purpose of the court: Justice seeking. There is some disagreement
about whether or not access to courts equals access to justice. Do you need legal
representation? Court orders need to be effectively enforced. Rules of
professional conduct – lawyers must ensure the proper administration of justice
- My Name is Kahentiiosta -- purpose of the court: institutions that project power
and are culturally specific forms of power. Cross-cultural litigation and disputes
involving litigants from different cultures and perhaps different jurisdictions.
Bias, neutrality, impartiality of judges, globalization and disputes that cross
jurisdiction. Rules on contempt give the courts a great deal of power when court
orders are breached. Rules on vexatious litigants exclude some people from using
the courts. Unrepresented litigants that are in cases with large corporations
- The rules of civil procedure have adopted a # of these views