Purposes and Reform of Civil...

David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful!

Table of Contents

Purposes and Reform of Civil Procedure....................................................................................................... 2Substantive v Procedural Law (Jolowicz).....................................................................................................................................2Comparing CVL and CML..................................................................................................................................................................... 3

Goals / Purposes of Civil Procedure.............................................................................................................................. 3The Primary purpose of Civil Procedure is to resolve disputes (Jolowitz)....................................................................3Problems in Civil Justice.......................................................................................................................................................................4Proportionality (need a full section here!....................................................................................................................................4

[Access to Justice]................................................................................................................................................... 4Right to counsel, right to access courts.........................................................................................................................................4

[Alternatives to Civil Justice – Encouraging Settlement]........................................................................................5Examples of the ways that the law encourages settlement..................................................................................................5Pros and Cons of Settlement / ADR.................................................................................................................................................5Mediation.................................................................................................................................................................................................... 5Arbitration.................................................................................................................................................................................................. 6Conciliation/Judicial Mediation........................................................................................................................................................6Settlement Privilege............................................................................................................................................................................... 6

The Open Court Principle and Exceptions to it..........................................................................................................6

Judicial Appointment............................................................................................................................................ 8

Judicial Independence, Impartiality, Ethics & Accountability.................................................................8Reasonable Apprehension of Bias....................................................................................................................................................8

Judicial Independence........................................................................................................................................................ 9Test for Judicial independence..........................................................................................................................................................9R. Posner, “Alerting the Environment: Tenure and Salary Issues” (2008) (excerpt)................................................9

Judicial Impartiality............................................................................................................................................................ 9Judicial Ethics & Accountability................................................................................................................................... 10

Removal of superior (s 96) judges................................................................................................................................................10Removal of provincial judges in QC (and other provinces)...............................................................................................11Fraser summaries of readings........................................................................................................................................................11

CCP Principles....................................................................................................................................................... 12

Pre-Trial Process (Summary).......................................................................................................................... 12Pleadings: Application (CVL) / Claim (CML)............................................................................................................ 12Case Management (CVL ONLY)...................................................................................................................................... 13

Analogous powers in Ontario???....................................................................................................................................................13Ways to make the whole thing go away… (Summary Proceedings).................................................................14Pleadings: Defense............................................................................................................................................................ 16“Discovery”.......................................................................................................................................................................... 16Setting down for trial and judgment [173-178]......................................................................................................18Pre-trial Conference......................................................................................................................................................... 19Misc Stuff.............................................................................................................................................................................. 19

Costs......................................................................................................................................................................... 19

Class Actions.......................................................................................................................................................... 21

Protective Measures / Injunctions................................................................................................................. 23Interlocutory injunction.................................................................................................................................................................... 23Interlocutory injunction Test..........................................................................................................................................................24Freezing Order (Mareva Injunction) [Tracy]............................................................................................................................24

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Anton Pillar Order [Celanese]..........................................................................................................................................................24Seizure Before Judgment (QC ONLY)...........................................................................................................................................25Garnishing Order (Greater Vancouver Sewerage).................................................................................................................25

Notification / Service.......................................................................................................................................... 25

Plurality of claims, Parties, Intervention, Etc............................................................................................. 26

Abuse Procedures................................................................................................................................................ 28

Standing.................................................................................................................................................................. 30Capacity:................................................................................................................................................................................................... 30Live Controversy................................................................................................................................................................................... 30Legal Standing:....................................................................................................................................................................................... 30

Jurisdiction............................................................................................................................................................ 31Geographic Jurisdiction.................................................................................................................................................. 31Territorial Jurisdiction.................................................................................................................................................... 31Choice of Forum Clauses................................................................................................................................................. 32Enforcement of Foreign Judgments............................................................................................................................ 33Subject Matter Jurisdiction............................................................................................................................................ 33

Subject Matter Jurisdiction over Civil Matters by $ Amount.............................................................................................33Ontario’s Simplified Procedure...................................................................................................................................................... 33Federal Courts:...................................................................................................................................................................................... 34Superior (s96) Courts / Inherent Jurisdiction / Delegation..............................................................................................34Non Civil Matters / Misc.................................................................................................................................................................... 35

Appellate Courts and their jurisdiction.....................................................................................................................35Appeals: of right, with leave, etc....................................................................................................................................................35Appeals to SCC....................................................................................................................................................................................... 36Appellate Standard of Review.........................................................................................................................................................36Other........................................................................................................................................................................................................... 36

Discovery: Additional Issues............................................................................................................................ 36Confidentiality........................................................................................................................................................................................ 37Purposes of discovery.........................................................................................................................................................................37CML v CVL v USA................................................................................................................................................................................... 37Special Issues with e-discovery......................................................................................................................................................37Fraser on Discovery.............................................................................................................................................................................38

Purposes and Reform of Civil Procedure

Substantive v Procedural Law (Jolowicz)Substantive law: Involuntary (can’t opt-out of criminal code); self-executing [think, e.g. invalidity under s52] Procedural law: Voluntary: Court can’t seize itself of a proceeding (CCP 10), though less so for the D! not self-executing:

Consequences don’t follow automatically from most breaches of the rules. Rather, priority is to remedy the breach “in a timely manner) (CCP 25; R 2.01)

Often, intervention of the other party is necessary to give a procedural rule effect. E.g., default judgments don’t follow automatically from missed time limits. (CCP 175; R 19.01, 19.05)

Gives a sequence of choices to parties (sue or not; seek injunction or not; settle or not; etc.).

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Procedural law is the ‘handmaid rather than the mistress’ (enabler, helper, not servant) of substantive law. That is, the goal of procedural law is to “bring out” substantive law. (CCP 25; R 2.01). 3 purposes: (1) settling of disputes; (2) demonstrating effectiveness of the law; (3) facilitating interpretation,

clarification, development of law (Jolowicz)

Comparing CVL and CML Procedural law as ‘best reflection of legal culture of a given society.’ (Jukier) Differences between CVL and CML are in degree rather than kind – but remain significant. (Jukier)

The Differences cannot be too different, otherwise it would have been impossible to create the UNIDROIT principles of transnational civil procedure, which are intended to reflect the commonality across CML and CVL systems around the globe, and harmonize it in transnational cases (Jukier)

Also considerable difference within systems! (Jukier) Too simplistic to suggest that one is better than the other.

However, the adversarial CML approach is blamed for much of what has went wrong in civil justice – cost, delay, inaccessibility, etc. Indeed, 7 of the top 10 countries in the World Justice Index are CVL – and CML systems are increasingly borrowing from CVL approaches (e.g. case management in Ontario CITATION; QC returning to its CVL roots CITATION (experts); Jukier).

On the other hand, the ideas underlying the adversarial system is admirable: parties and their representatives are their own best advocates, so justice is best served by providing a venue replete with procedural protections where the parties and their representatives can advance their respective cases.

At the root, increasing appreciation for CVL in CML jurisdictions is attributable to a recognition that irrespective of how justice is best served in theory, in practice, justice is not served at all when it is unaffordable and inaccessible.

(Jukier) CML CVLRole of Judge Adversarial, party led system. So

judge is passive, receptive, detached

“Inquisitorial”: vocal, dominant, controls/gathers evidence

Conception of truth truth teased out (recognizes the truth as it emerges)

court knows the truth (seeks the truth)

Evidence emphasis on oral evidence/argument

proof is written

Experts parties find (Citation) judge appoints (Citation)Trial single event (requires detailed

discovery)no distinct trial, no discovery

Appellate Review questions of law, very few de novo (28,000+ France, CdC)Judicial Appointments appointed from peers special schooling

Goals / Purposes of Civil Procedure

The Primary purpose of Civil Procedure is to resolve disputes (Jolowitz) The first purpose of civil procedure is, of course, to facilitate the “fair-minded” resolution of private disputes

(CCP Preliminary Provision; Jolowitz). The word, “facilitate” is important, distinguishing procedural law from substantive law. Substantive law

is the body of rules stipulating individuals’ rights and obligations. Procedural law is the body of rules stipulating how parties may give effect to these rights and obligations. In this respect, civil procedure is the “hand maiden” to substantive law (Jolowitz). Its helper that “bring[s] out” the substantive law and ensure[s] that it is carried out” [CCP 25; see also R 2.01].

I prefer the analogy that civil procedure is the conductor while substantive law is the orchestra. Just as the orchestra requires the conductor in order to produce music, substantive law requires procedure in order to achieve justice. Just as the conductor’s waving arms serve no end apart from the orchestra which

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! they are intended to direct, civil procedure is empty and meaningless without the substantive law to guide.

Traditionally, civil procedure concerns the resolution of disputes through litigation. It is the set of rules that governs the initiation, conduct, and execution of litigious disputes. The emphasis here is that procedure be “fair minded” (CCP Preliminary Provision). Civil procedure is intended to level the playing field between the parties through the provision of procedural predictability and protection.

Of course, CVL’s comparatively “inquisitorial” and CML’s comparatively “adversarial” systems represent different approaches to this end (Jukier). The prior suggests that fairness is achieved when each party is able to fully advance its case before a judge tasked with recognizing the truth as it emerges. The latter suggests that fairness is achieved by tasking the judge with actively seeking out the truth. Either way, however, the underlying goal is fairness.

Increasingly, however, jurisdictions have recognised that a “fair minded” process is of little effect if it is inaccessible. Systems of civil justice have found themselves grappling with a trilogy of problems which prevent access to civil justice: cost, delay, and complexity (Woolf).

Other purposes Facilitating the interpretation, clarification, and development of the law by judges (Jolowitz)

Problems in Civil Justice-Third of actions there were in 70s; lost public confidence; too expensive; lack of knowledge; complexity ‘fortresse judiciaire’; Bar’s double role. (Lachapelle et al.)-‘Disappearing civil trial’ (McMurty)-Cost. Deters actions, often disproportionate, often uncertain, and more than other jurisdictions.-Delay. Good for lawyers not parties. In progressing cases; settlement; hearing dates; trials.-Complexity. Different rules different courts; unavailability of assistance/advice (Woolf Report)

What are the Solutions?-Judges as mediators; raise limit for small claims; judicial insurance; unify courts of first instance; fix lawyers’ rates; raise limit for legal aid; split up Bar; education (Lachapelle et al.)-Better legal aid and pro bono requirements (McMurty)-3 major solutions: case management; encourage settlement; proportionality (see below).

Proportionality (need a full section here! SUMMARY JUDGMENT (Hryniak) Partial Admissability (Corbeil)[Proportionality: CCP 18; ON R 1.04(1.1); Summary Judgment: R 20.01]

[Access to Justice]

Right to counsel, right to access courts There is no general right to counsel (Christie).

There is only a constitutional right to counsel in specific situations (e.g. Charter, s. 10(b)). The unwritten constitutional principle of rule of law does not include a right to counsel. The breadth of

the right and potential cost argue against it. There is a constitutional right to access the courts (BCGEU v BC – picketing)

This right arises, inter alia, from section CA 1867 s 96. (Trial Lawyers of BC) The plain text of s 96 refers to the appointment of judges, but the section also guarantees the core

jurisdiction of Superior Courts (Bloedel; re: Remuneration). Part of this core jurisdiction: to resolve disputes b/t individuals and decide questions of private

and public law. Measures that prevent people from coming to court – and thus hearing fees which prevent citizens from bringing legitimate cases to court – are thus unconstitutional.

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! The right to access courts can be limited via CA 1867 s 92(14) [administration of justice in the province.] This

includes the right to impose hearing fees (and other fees), subject to s 96. (Trial Lawyers of BC) Access to courts is essential to rule of law (Trial Lawyers of BC; Hryniak v Mauldin, contra Christie?).

Christie was different, because as a matter of fact, the 7% tax on legal services did not have the potential to bar litigants with legitimate claims from the courts. (Trial Lawyers of BC)

Historically, “access to justice” was a preoccupation of academics and social justice advocates. Increasingly, however, judges have taken notice of the challenge. (Christie, Trial Lawyers of BC, and Hryniak v Mauldin).

“Ensuring access to justice is the greatest challenge to the rule of law in Canada today” (Hryniak v Mauldin).

“Access to the courts is essential to the rule of law” (BC Trial Lawyers). BC Trial lawyers is a victory for access to justice, but only a small one, given it concerns

judicial, not extrajudicial, fees.

[Alternatives to Civil Justice – Encouraging Settlement]

Examples of the ways that the law encourages settlement The rationale behind settlement privilege is obviously to encourage settlements. (Union Carbide)

Pros and Cons of Settlement / ADRPros Advocates of settlement argue that it allows the parties of a dispute to avoid costly litigation and allows plaintiffs

to avoid sharing a considerable proportion of an eventual judgment with the lawyers who were necessary to obtain it.

They also suggest that settlement and alternative forms of dispute resolution offer an opportunity to deal with the underlying sources of a problem rather than with its superficial effects.

It achieves values, like: consent, participation, empowerment, dignity, respect, empathy, efficiency, catharsis, equity, access, justice. (Menkel-Meadow)

Settlement should not be seen as “second best” that avoids the worst case when a best-case resolution (via litigation) is unattainable. Rather, settlement can be justified on its own moral grounds. (Menkel-Meadow)

CONS: Fiss argues strenuously against the trend of encouraging settlement. He points out that parties often enter settlement negotiations with differing financial and other resources, and

therefore unequal bargaining power, such that the weaker and poorer party is effectively coerced into settling. First, one party often doesn’t have enough money to pay the fees that would be required to see a trial

through. Second, the poorer party may require money urgently. Third, the poorer or less sophisticated party may be unable to predict, through the retainer of lawyers to

anywise a case or through independent analysis, what result would issue from a trial. These three factors often push the poorer party to settle, even, even if the settlement is for considerably

less that could be obtained through trial. Further, Fiss points out that settlement and judgment are not perfect substitutes. Fiss also points out that settlement deprives courts of the occasion to render an interpretation. This relates to one

of the purposes of civil procedure, to clarify the law (Jolowitz). Also deprives court opportunity to make authoritative statement on issue (think Brown v Board of Education). Litigation allows ‘using state power to bring a recalcitrant reality closer to our chosen ideals.’ This is something of which we should be proud not something to be ashamed of.

Despite Fiss, current procedural law favours settlement. (CCP 1-7; ON 24.1)

MediationON now has mandatory mediation (R 24.1).-Chosen by the parties (24.1.09(4)). If they fail to do so one is appointed (24.1.09(6)).-Serious potential penalties for non-compliance including: establishing timetable; striking documents; dismissing action; ordering costs; any other order (24.1.13).-Confidential! (24.1.14)

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! -QC private mediation (CCP 605-615)

Arbitration-QC (CCP 620-648); ON?-Arbitral awards recognized and enforced in other countries than where they’re sought (Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)

Conciliation/Judicial MediationOtis & Reiter , “Mediation by Judges: A New Phenomenon in the Transformation of Justice”, (2006) -ADR slowly beign brought within ‘edifice of state-based normative ordering’ (351).-This article focuses on one form judicial mediation. -Judicial mediation in QC “hearlds a new, participant-centered normative order, one that conceptulaizses ligigaiton more broadly and holisitcally and, thus, offers justice that is fuller and better adpated to the needs of parties with a variety of conflicts.”-Major limitations of trial: delay; cost; trauma; limits of adversarial win-lose model.-Why judge? Recognized impartiality; knows deference to trial judge; experience; uses their time better.-Stages of judicial mediation: conflict; consent (agreement to mediate); opening; communicatoin and negotiation; decision (parties draft it; often prospective); closure.-Ethics: confidentiality; party autonomy; fair treatment.Judicial Settlement Conference: CCP 161-165.

Settlement Privilege Union Carbide Canada Inc. [Dow Chemical] v. Bombardier Inc ., 2014 SCC 35 -Facts: Long multimillion $ suit on defective gas tanks. Parties submit to mediation (confidential). Settlement reached. Disagreement over its scope. B wants homologation. D brings motion to strike based on confidentiality. At CML (and also in QC CVL), even in the absence of a contractual confidentiality agreement, parties discussing

a settlement are protected by the CML evidentiary rule of settlement privilege, which prevents the parties from using against one another in subsequent litigation information disclosed during settlement negotiations. (Union Carbide)

A CML exception to settlement privilege allows parties to disclose information as necessary in order to prove the existence or scope of a concluded settlement. (Union Carbide)

(ii) for countervailing public interests (misrepresentation; fraud; undue influence). Contracting out of the CML exception to CML evidentiary rule of settlement privilege involves forgoing the

possibility of proving, and therefore enforcing, a concluded settlement [which would be pretty dumb]. As such, only a clear and express term will be interpreted to eliminate the exception to settlement privilege. A general pre-mediation confidentiality agreement does not suffice as such. (Union Carbide)

-Exception (i) is displaced in K only if parties expressly intend to exclude [in QC 1425 CCQ].-Settlement is only enforceable when homologated: 2633 CCQ[See 151.16, 151.21 (existing) 163 (new)]

The Open Court Principle and Exceptions to itOpen Court Principle-General starting place is that court proceedings are open to the public.-See CCP 11; R 135.-“In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy.” –Fish J in Toronto Star v Ontario [2005] 2 SCR 188-There are however, exceptions to this rule.

In Camera Hearings (for family law)-CCP 15-16. (see also JL v AN); ON Child and Family Services Act.

Limits on the PressCanadian Broadcasting Corp . v. Canada (Attorney General), 2011 SCC 2 -Facts: Rules prohibit film/photo in public areas of courthouse and broadcast of proceedings.

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Deschamps J-“The open court principle is of crucial importance in a democratic society.” Limitations (but not outright bans) on where media organizations have access within courts and their use of audio recordings are justifiable in a free and democratic society.-Oakes analysis: (i) rational connection between increase in journalists and consequences on administration of justice; (ii) minimal impairment – less intrusive than total ban; (iii) proportional allows lawyers and parties to move freely; protects vulnerable.[CCP 14; ON Courts of Justice Act, art. 136]

Publication BansDagenais v. Canadian Broadcasting Corp ., [1994] 3 SCR 835 -Facts: D seeks injunction restraining CBC from airing fiction depicting abuse in Catholic institution (similar to what D is charged with). Rejected due to available alternatives.Lamer CJ-Test for publication ban: (i) it must be necessary to prevent real and substantial risk (more than speculative risk) to fairness of trial because reasonable alternatives (such as adjourning trial; changing venue; sequestering jurors) will not prevent the risk; (ii) salutary effects for trial outweigh deleterious effects. Burden for justification for limit borne by party seeking ban.-No hierarchical approach to rights. They must be balanced in manner that respects each right.

Sealing/Confidentiality OrdersSierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 -Facts: Sierra Club contests financial assistance for AECML to construct and sell CANDU reactors to China. China will only disclose documents if they’re protected by confidentiality order.Iacobucci J-Confidentiality order [sealing order] only granted when:(i) it is necessary to prevent serious risk to an important interest, including a commercial interest, in the context of litigation because reasonable alternative measures will not prevent the risk.

Is there real and substantial risk? Is commercial interest expressed in terms of public interest to confidentiality? [Treated as confidential at all

relevant times? Info accumulated with expectation of confidentiality]. Reasonable alternatives? Must restrict ban as much as possible.

(ii) salutary effects, including right to fair trial, outweigh deleterious effects: seeking truth and common good promoting self-fulfillment of individuals ensuring participation in political process is open to all.

-Principle, though only expressly granted to crim trials in Charter, extends to all types of trials.Anonymity OrdersJ.L. v. A.N. , 2007 QCCS 3226 -Facts: Man gives women herpes. She sues for damages. Wants pseudonymns used.-Art. 13 (existing), 15 (new) CCP requires that family matters be in camera.-For other matters there is a strict test of public interest and good morals to justify violating the open court principle; personal matters including medical/psychological assessments not sufficient.[Family: 13 (existing) 15 (new). Open principle (+ exceptions): 13 (existing) 11-12 (new). Note change from ‘good morals’ to ‘preservation of dignity’][ON: see Courts of Justice Act, ss.135 – 135.2 allows limits where necessary to prevent harm/injustice].

Hall , “Super-Injunction, What’s Your Function?” -Super-injunction prohibits not only act, but any broadcast of publication ban itself.-Tension between public’s right to know (Trafigura) and privacy.-Marika: As early as Dagenais – it’s clear that technology creates issues for enforcement (886).-Rise and fall of this procedure largely due to extra-judicial factors

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Judicial Appointment

Bastarache Commission , Executive Summary , (excerpt, §4.1-4.2.1) -Values that should underlie the selection of judges: merit (legal knowledge, integrity, judgment, moderation, patience); political accountability (politicians should choose); limits on executive (but they should choose from a short list developed by an expert committee, according to

formal criteria, and provide reasons); transparency (names of committee, process, etc. should all be published) diversity (merit criteria should be modified not to reduce diversity). Recommendations: secretariat; standing selection committee with diverse members and fixed terms; criteria;

transparency.UNIDROIT Principle 1.5 – substantial knowledge and experience.

Reference re Supreme Court Act , ss. 5 and 6 , 2014 SCC 21 9 (excerpt) Facts: Marc Nadon, supernumeracy (semi-retired) judge of FCA, previously (but no longer) QC bar member for

10 yrs., was appointed to SCC pursuant to s 6 of Supreme Court Act, which requires 3 of 9 judges be from QCCA, QCSC, or “advocates of that province”.

Clearly, Nadon doesn’t fit under s 6’s “from among the judges of the CoA or the SC of QC”. So question is, how about “from among the advocates of that Province”? No. this language requires current

membership in the QC bar. s 5 also requires 10 yrs. membership (unless CoA or superior court experience) Together s 5 and s 6 require the QC judges on the SCC be either be current or past members of the QCCA or the

QCSC, or be current members of the QC bar w/ 10 yrs. standing. s 5.1 and 6.1 are irrelevant (invalid?) b/c CA 1982 s 41(d) stipulates that provincial legislatures must approve any

change to the composition of the SCC. SCC Act was enacted in 1875 as an ordinary statute, but CA 1982 limited Parliament’s authority to

amend it. So Nadon’s appointment was void ab initio. He’s still on the FCCA.Moldaver (dissent)-Majority ‘rewrites history’ leading to ‘absurd results.’ Bad statutory interpretation.

J.A. Lanzinger , “A Personal Reflection on Judicial Elections”, (Summer 1998) 16 states have judicial elections → each party endorses one candidate in the primaries, but final round is “non

partisan” (if the voters have forgotten months of advertising). Hard to run a judicial campaign and remain independent

campaign financing, comes from attorneys mostly. Candidate can’t pitch personally, but establish committees to do it. Prominent lawyers are the best members of committees.

People generally don’t understand candidates can’t pontificate on the issues of the day (guns, abortion, etc.) Claims, “I’ll follow the law” tend to fall on deaf ears.

Also hard to remain independent even when running for re-election → any unpopular decision you make can be revived at next election

But I get to meet nice voters, that gives me humility, perspective, etc.

Judicial Independence, Impartiality, Ethics & Accountability

Reasonable Apprehension of Bias Why? Public confidence requires judges to adjudicate without bias and be perceived to do so. (Wewaykum) Bias: leaning, inclination, bent, predisposition towards one side or the other. A predisposition to decide an issue a

certain way, which does not leave the judicial mind open to conviction (Wewaykum) In evaluating whether or not a court is independent and impartial, the relevant test is “reasonable apprehension of

bias”.

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! That is, would a reasonable person fear that the body is not independent and/or impartial? “What would an informed, reasonable, right-minded person, viewing the matter realistically and

practically and having thought the matter through conclude?” – McLachlin in Wewaykum

Judicial Independence

Test for Judicial independenceThree components of judicial independence: (Re Remuneration) (1) Security of tenure – CA 1867 s 99 sets out the ideal: good behaviour, removal by GG on address of both

chambers. (2) Financial security – CA 1867 s 100 sets out the ideal. Set by parliament, not subject to appropriation. Three

aspects for institutional financial security: (i) independent commission to change remuneration; Changes or freezes to judicial remuneration must

be reviewed by independent, objective, and effective judicial compensation commissions. (contra Valente)

-Regarding (i), for provinces to change salaries of their provincial judges, they must establish an independent, objective, effective commission to examine the issue. While they can deviate from the commission’s advice, doing so would require strong rational justification. Across the board cuts are prima facie rational; targeted cuts require serious justification.

(ii) prohibition on negotiation; (iii) basic minimal level.

(3) Administrative independence – the essential: judicial control over assignment of judges, sittings, court lists, allocation of court rooms, direction of admin. Staff. (Le Dain: The third essential condition of judicial independence is the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function.”)

[Aside: See ONCJA s. 84 on remuneration]. [UNIDROIT Principle 1.2 – security of tenure]

R. Posner, “Alerting the Environment: Tenure and Salary Issues” (2008) (excerpt) Life tenure guarantees independence, but invites abuse → no penalty for crappy work Performance-based criteria for retention of the judgeship, however, would compromise judicial independence

because of the absence of objective performance measures Term limits (non-renewable): would not jeopardize independence, but would decrease legal stability because of

the turnover of judges. Also, judges’ minds would be turned towards their next job and how to get it. Salaries. Way lower than law profs and top lawyers. BUT no lack of applications and many non-pecuniary

benefits (prestige, can hold it for longer, more interesting, etc.). Increasing salaries might attract the wrong crowd. Opportunities for judges to work as arbitrators is changing things…

Bottom line: terms and increased salaries are complex proposals. Increasingly salaries especially may actually cause more harm than good (though regular predictable increase a good thing).

Judicial Impartiality

UNIDROIT Principle 1.3; Bangalore Principles Value 2 Impartiality Impartiality: judge must approach the case to be adjudicated with an open mind (Wewaykum) Judges have a clear duty of impartiality (CCP 201; QC Charter s 23 ONCJA s. 80). There are two ways to seek disqualification at CML: (Wewaykum)

(1) actual bias, rarely argued, leads to immediate disqualification, (Wewaykum) (2) RAB. (Wewaykum) – this test also applies in QC (Wightman)

A J will be disqualified from deciding a matter (or judgment will be vacated) where the party arguing for disqualification proves that there is a reasonable apprehension of bias; that an informed person, viewing the matter realistically and practically, would conclude that it is more likely than not that the judge (consciously or unconsciously) would not decide fairly. (Wewaykum)

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Although the courts generally agree on RAB as the applicable test, the RAB test can be a

difficult one to apply. It requires considerable discernment to determine where an apprehension of bias is reasonable (Wightman). The court’s split on the evidence in R v SRD shows this.

CCP 202ff provides a formal mechanism whereby a party may request a judge to recuse herself if there are serious reasons to doubt a judge’s impartiality. If judge refused, another judge in the same district considers the matter. Then party may appeal by leave to QCCA.

SPECIAL SITUATIONS Family members: For a parental or familial link to someone related to the case to give rise to the

necessity of recusal, the link must be close and direct such that the interests of the judge become identified with the interests of that person. (Wightman)

Race: (R v S (RD)) -Judges held to high standard of impartiality regardless of race, sex, religion, etc. -Reasonable apprehension of bias test “reasonable person should also be taken to be aware of

the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.”

-Impartiality requirement does not require judges to discount life experiences. Judge’s word or conduct can raise RAB (R v S (RD)) Copying: Even extensive copying does not automatically (without more) rebut the presumption of

integrity and impartiality. (Cojocaru) -A a decision is only set aside for judicial copying where “a reasonable person apprised of the

circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision.”

-Evidence that the judge did anything to consider the issues (here rejection of some of plaintiff’s submissions) will lead to presumption being upheld.

Sherr , “Shrinking Legal Aid, Unrepresented Litigants and Judicial Independence” (2011) -Decreased legal aid and concomitant rise in self-represented litigants has serious ramifications for judicial

independence. Judge is forced into dual role of impartial arbiter and attempting to assist one party (the unrepresented side).

-Judges often do more to increase procedural fairness then do anything about substance. “Judges found themselves subject to the tensions between promoting the procedure of neutral arbitration and the

need to produce substantive justice; between appearing as a neutral arbiter and being neutral advocate; between brokering agreements and actual decision making.” (409).

Judicial Ethics & Accountability

Removal of superior (s 96) judges Ultimately, judicial accountability for s 96 judges (and most provincial judges in Canada) is political. That is,

elected officials have the power to remove a judge from office. For superior (s96) judges, CA 1867 s 99 sets out the process. “address [vote] of both houses of

Parliament” is required. This has never happened in Canada. There is, however an intermediate step, by which judges are accountable to their peers.

For s96 judges, through the mechanism of the Canadian Judicial Council. (1) Complaint in writing (2) Preliminary review by judicial conduct committee (possible outside counsel, interviews, etc.)

Possible outcomes: Closure b/c no merit or no conduct at issue (often someone is just pissed b/c the

judge didn’t decide favourably). Closure after judge agrees to some remedial measure like sensitivity training Referral to a review panel of 5 judges

(3) Review panel of 5 judges, which may conduct additional inquires, interviews, etc. Possible outcomes:

Closure b/c no merit Closure after judge agrees to some remedial measure like sensitivity training

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Closure b/c the issue is not serious enough to warrant further consideration Referral to inquiry committee if removal may be advisable.

(4) inquiry committee (referrals from AG can go straight here); conducts a more formal investigation (oral hearing, etc.) and review of the evidence and

provides report to the Canadian Judicial Council. (v) Consideration by Council;

Recommend to MoJ either removal or not removal Removal pursuant to s99 has never occurred in Canada. In certain cases, it likely would have occurred, but the

impugned judge resigned when it became clear that the CJC process would lead to a recommendation of dismissal.

Removal of provincial judges in QC (and other provinces) Valente, cited in Therrien established that while CA 1867 s 99 sets out the ideal, mechanisms with fewer

safeguards may suffice to assure security of tenure and therefore judicial independence in the provinces. Quebec (Therrien)

Complaint to Conseil de la magistrature, Made up of: judges but also 2 lawyers and 2 non-jurists (of 14). which makes a recommendation to MoJ

MoJ may ask the QCCA to inquire. QCCA issues decision

It may be appealed to SCC Minister may dismiss the judge. No intervention of legislature required. s. 95 Quebec Courts of Justice Act: “The Government may remove a judge only upon a report of the

Court of Appeal made after inquiry at the request of the Minister of Justice.”

Fraser summaries of readings

Therrien (Re) , 2001 SCC 35 -Facts: T serves jail time for assistance to FLQ. Pardoned. Decades later seeks to become a judge. Discloses conviction in first procedure. Doesn’t disclose in second. Named judge. His conviction is discovered and he is removed in accordance with s. 95 of Courts of Justice Act. T challenges.Gonthier J-S. 96 judges can only be removed through address of both houses of Parliament (s. 99). This is not a requirement at the provincial level.-Valente does apply to prov courts, however (security of tenure; financial security; independence)-For removal, there must be: (i) cause; (ii) judicial inquiry.-Various provincial regimes (see para 76) meet these requirements.-In QC, s. 95, CJA requires that a judge can be removed only upon report from QCCA.-Removal in this case does not violate s. 15 of the Charter or the QC Charter.-A pardon does not remove guilt. -Role of the judge. Public demands “virtually irreproachable conduct from anyone performing a judicial function.” “We expect our judges to be almost superhuman in wisdom, in propriety, in decorum and in humanity.”See Bangalore Principles, Preamble: “WHEREAS it is essential that judges, individually and collectively, respect and honour judicial office as a public trust and strive to enhance and maintain confidence in the judicial system”

CJC , Report to the Minister of Justice in the matter of the Honourable Paul Cosgrove (2009) -Recommendation for removal. C presides over murder trial. Finds over 150 Charter violations.-QCCA finds numerous errors in law, unwarranted findings of misconduct, misuse of contempt.-S. 65 of Judges Act gives two stage analysis: (i) judge incapacitated, disabled from due execution of office; (ii) manifestly and profoundly destructive of impartiality, public confidence undermined (factors: apology, views of independent counsel, judge’s career/character)

Hamilton , “Reasonable Doubt: Why we should care about Stephen Harper criticizing Beverley McLachlin” ( Straight.com , 23 May 2014) After Nadon spat, Harper calls McLachlin’s actions ‘inappropriate’ and ‘inadvisable.’

11

David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Why a problem: She’s the ‘epitome of judicial propriety and integrity.’ Thus, this calls into question integrity of

the justice system as a whole; Makes institution unnecessarily political (undermines independence); Can undermine impartiality.

CCP Principles

QCInterpretationCCP, Prelminary Provision: With CCQ and QC Charter seeks to resolve disputes in public interest through appropriate, fair, efficient, accessible, proportionate processes.

Proportionality18: Parties must choice procedure proportionate to cost, time, nature, complexity of action.

Case Management-Mission of court includes proper CM (9).-Duty of court (and parties) to ensure CM (19).-Case management measures/powers (158)

Early Settlement-CCP 1-7; Settlement conference (above) [161ff]

Speedier Justice-180 day rule. “At heart” of CCP (Arguin).-Flexible before time limit (173(2)).-Must be impossible after limit (Arguin; 173(3)).

Unified ProcedureCCP for everything

ONInterpretationR 1.04(1): These rules are liberally construed to secure just, most expeditious, and least expensive determination for civil proceedings.

ProportionalityR. 1.04(1.1.): Court will make orders that are proportionate to importance, complexity, amount.

Case Management-System remains party-driven, but there is case-management where ‘appropriate’ [77.01].-This can be without party consent [77.05].

Early Settlement-Mandatory mediation (above) [24.1]

Speedier Justice-Most expeditious determination possible [1.04(1)]-Less apparent in ON, but see track system.Track System-Simplified procedure $100,000 or less. 180 day max. Optional. [R 76].-Ordinary procedure >$100,000. 5 year max [48.14]

Pre-Trial Process (Summary)

Protective Measures? P may consider seeking, even before initiating

proceedings, an injunction an injunction of some sort to preserve her rights. SEE PROTECTIVE MEAS.!

Pleadings: Application (CVL) / Claim (CML)

Up to the parties It’s up to the parties to commence a proceeding. A

court cannot seize itself of a proceeding [10]. Nor can it rule on an application affecting a party’s rights unless that party has been heard from or duly called [17].

Judicial Application

Protective Measures? <<<Pleadings: Application (CVL) / Claim (CML)

Pleadings are: the statement of claim, the statement of defence, and the reply [25.01]

Statement of Claim A statement of claim originates an action [14.03]. It

must be served personally [16.01] within six months [14.08].

Content : All pleadings, including the statement of claim, must contain a “concise statement of the material facts…but not the evidence by which those facts are to be proved” [25.06(1)], also the nature of

12

David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! A judicial application, filed at the courthouse [100],

and notified to the persons concerned [109] originates a proceeding [141].

Are claims compatible? See 143 and pg 27 Content : All pleadings, including the judicial

application, must state the relevant facts and the conclusion sought. It must disclose anything liable to take another party by surprise [99]. (fact pleading!) A summons is attached to the application. It lists

exhibits in support of the application that are available upon request [145(1), 247(1)]. Also informs D of 15-day deadline for answer, obligation to cooperate on case protocol [146].

Amendment of pleadings (206) Particulars : D may ask for them [169]

Answer Answer : The D must answer the judicial application

within 15 days, otherwise P may require clerk to set case down for immediate default judgment w/ costs, after P files exhibits and affidavit with the court [145(2), 175, 180].

Answer states: “let’s negotiate to settle” or “I’ll defend, let’s establish a case protocol”. May also propose mediation or settlement conf. [147]

relief sought, the amount of damages if applicable [25.06(9), contra what happened in Beals v Saldanha]

Particulars : Opposing party may file motion for particulars re: any allegation in a pleading. Pleading party has 7 days to respond [25.10; 169].

FACT vs NOTICE Pleadings In Canada we use fact-based pleadings (CCP 19; R

25.06). The US, however, uses notice-based pleadings

(Federal Rules of Civil Procedure, R 8) although they are moving towards factual requirements (see Twombly; Iqbal in Dobson).

Note UNIDROIT Principle 11.3 favours fact-based pleadings.

Potential consequences: burden on plaintiff; creates more need for discovery ‘threat of discovery expense will push cost-conscious defendants to settle even anemic cases’ (Twombly in Dobson).

Also transparency and COST:Beals v. Saldanha , 2003 SCC 72 (excerpt) Major J: Purpose here is to show $800,000 judgment from a claim of ‘damages in excess of $5,000.’

Case Management (CVL ONLY) Under the CPP, courts have broad powers of case management -- 158 Parties must file a case protocol @ court within 45 days after summons [149].

If parties disagree, both may file. If one doesn’t cooperate, only one may file. Either way, court may convene case management conference, or set the protocol [152].

If P misses the 45 day deadline, 6 mo. deadline for setting down for trial starts from service of the judicial application [173(3)], instead of after protocol is finalised [173].

Court examines case protocol . It is presumed accepted after 20 days (from submission) unless court calls parties for case management conference to be held within 30 days [150].

@ Case Management Conference, judge takes “appropriate case management measures” [153, see 158]. May require undertakings. [153] May also proceed w/ preliminary exceptions, defense, etc. [154]. If D doesn’t show up to case management conf., P may require clerk to set case down for judgment after 5

days notice and an order of the court [175, 180]. Case Protocol covers: (1) Preliminary exceptions & safeguard measures, (2) settlement conference, (3) pre-trial

written & oral examinations, (4) experts (incl. why not joint?), (5) type & timeline for defense, (6) pre-trial discovery and disclosure, (7) foreseeable incidental applications, (8) extension of time limit, (9) methods of notification [148]

No amendments w/o court approval, except re: timelines or to “facilitate conduct of the proceeding” (?). Amendments must be filed @ court. [150]

Status -- Case protocol is binding. Penalty for non-compliance: legal costs, or other (?) [150]

Analogous powers in Ontario???Case Management-System remains party-driven, but there is case-management where ‘appropriate’ [77.01].-This can be without party consent [77.05].

Case Management in Ontario Rule 77.

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Purpose:

o “to establish a case management system that provides case management only of those proceedings for which a need for the court’s intervention is demonstrated and only to the degree that is appropriate…”

o Note entirely hands off: cases can be referred to case management at any point, with or without party consent (77.05).

Mandatory mediation (24.1)o Only in Ottawa, Toronto, County of Essex (Windsor)o Within 180 days of close of pleadings (24.1.09)o Not free, from roster (or by consent)o Failure to comply case management adverse orders (24.1.13)

Content – see 77.04(1) and (2)

Ways to make the whole thing go away… (Summary Proceedings)

Default Judgment-If D fails to answer summons, P gets a default judgment (subject to notice) [180].

Abuse Procedure (SEE ABUSE) When? A court may, at any time, on the motion of

any party, or on the court’s own initiative, declare a judicial application or a pleading abusive [51]

See abuse procedure notes.

Preliminary Exceptions, generally Party raising preliminary exception must disclose in

writing to other party “in sufficient time” and must file disclosure w/ court [166(1)]

Deadline : party must do above [166(2)]: Before deadline for filing of case protocol; or date specified in case protocol (=45 days after

summons, see 149); or 3 days before the case management conference;

or if no case protocol required, 3 days before the

originating application is to be presented before the court Exception : discretionary, “if serious

reasons” [166(3)] Correct : court may allow a period of time for the

party against whom the exception is raised to correct the situation, otherwise dismissal

General exception power “party may apply to the court for any measure conducive to the orderly progress of the proceeding” [ 169 ]

Jurisdiction: preliminary (declinatory) exception Geographic / territorial : a party may ask the

Summary Proceedings

Default Judgment-If D fails to deliver defence, P gets default judgment. This must be noted [19.01] and then be signed [19.04] or go to judgment [19.05].

Abuse of Procedure (Summary Procedure) (SEE ABUSE) The court may, on the motion of any party or on its

own initiative, stay or dismiss a proceeding or motion as frivolous or vexatious or otherwise an abuse of the process of the court [2.1.01-2.1.02]

May also be raised as an issue to be determined b/f trial: The D may move for and the judge may order stay or dismissal of an action as Frivolous, Vexatious or Abuse of Process: [21.01(3)(d)]

Striking of abusive pleading : Also, court may, of its own initiative, or on the motion of a party, strike a pleading on the basis that it may prejudice or delay action; scandalous, frivolous, vexatious; abuse of process [25.11]

Delay (no precise equiv) [24.01] A D who is not in default may move to have an

action dismissed for delay where the plaintiff has failed,

(a) to serve the statement of claim on all the defendants within the prescribed time;

(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;

(c) to set the action down for trial within six months after the close of pleadings

Claim Paid [14.1] (no precise equiv)

Jurisdiction (SEE JURISDICTION) Geographic: The court has broad discretion to

transfer the proceeding, on its own motion or a 14

David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! application to be referred to the competent court, or dismissed. [167(1)]

Subject-matter : may be raised by either party at any time, or by the court at its own initiative, in which case court adjudicates costs. [167(2)]

Incapacity: Preliminary Exception (Inadmissibility) A party may ask that an application or defense be

dismissed for incapacity [168] SEE STANDING

Legal Standing: Preliminary Exception (Inadmissibility)

A party may ask that an application or defense be dismissed for lack of interest [168] SEE STANDING

lis pendens : Preliminary Exception (Inadmissibility) A party may ask that an application or defense be

dismissed on the basis that another proceeding is pending b/t the same parties and in respect of the same matter. [168]

res judicata : Preliminary Exception (Inadmissibility) A party may ask that an application or defense be

dismissed on the basis that a court has already dealt with it and issued a final judgment [168]

Unfounded in law: Pelim. Exception (Inadmissibility)

This is like the CML Motion to strike!!! A party may ask that an application or defense be

dismissed as unfounded in law, even if the alleged facts are true – this exception may pertain to only part of the application or defense [168]

Question of law before Trial-Parties can jointly submit a question on an issue of law. Court will do so if necessary for orderly progress

party’s motion [13.1.02]: Territorial: A defendant may move to have an

action dismissed for lack of territorial jurisdiction, or failing that move to have the action stayed as a non-convenient forum. [Club Resorts v Van Breda] Discretionary power to stay proceedings

(ONCJA s 106) Subject-Matter: Determination of an issue b/f trial

-- The D may move for and the judge may order stay or dismissal of an action for lack of subject-matter Jurisdiction [21.01(3)(a)]

Determination of an issue b/f trial, generally Motion must be made promptly. Failure to act

promptly will be taken into account in costs award [21.02]

Moving party and responding party serve and file factums, 7 and 4 days b/f hearing, respectively [21.03(1)]

Incapacity: Determination of an issue b/f trial The D may move for and the judge may order stay

or dismissal of an action for P’s Incapacity or D’s incapacity to be sued [21.01(3)(b)]. SEE STANDING

Legal Standing This is dealt with as a preliminary issue. I’m unsure

of precise mechanism.

lis pendens : Determination of an issue b/f trial The D may move for and the judge may order stay

or dismissal of an action on the basis that another proceeding is pending b/t the same parties and in respect of the same matter. [21.01(3)(c)]

res judicata Unsure of mechanism.

Motion to strike (determination of an issue b/f trial) Either party may move for and the judge may order

striking a pleading disclosing no reasonable cause of action or defense [21.01(1)(b)] Test errs on the side of permitting novel claims

to allow low to develop [Imperial Tobacco) Note other reasons for which a court may strike a

pleading (is a motion for this possible?): may prejudice or delay action; scandalous, frivolous, vexatious; abuse of process [25.11]

Determination of a matter of law (Issue b/f trial)

15

David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! of the case [209]

Application for Recusation If worried about judge’s impartiality (201) See Wewaykum for test that apples both at CML

and in QC (Wightman)

Mootness Mootness can be raised any time b/f judgment

[Borowski] Mechanism unclear in both CML and CVL.

Pleadings: DefenseNote emphasis on oral defence Timing : case protocol specifies time limit for filing

of defense [148(5)]. Failure to file defence within applicable time

limit allows P to require clerk to set case down for judgment [175(1)], after filing exhibits and affidavit w/ court [175(2)] and giving D 5 days notice [180(2)].

Type : Oral, except where complexity and or special circumstances warrant otherwise [171]. Case protocol specifies oral or written [148(5)], judge may alter this [158(6)].

Content : “raises all the grounds of law or fact that argue against granting the conclusions sought in the application” [170]. All pleadings, including the defense, must state

the relevant facts and the conclusion sought. It must disclose anything liable to take another party by surprise [99].

A list of supporting exhibits, available upon request, must be attached to the defense [247(1)]

Amendment of pleadings (206) Possibility of reply (102) Cross-Claim : “A defense may make a [written]

cross-claim against the P, asserting a claim arising from the same or a related source as the application [172]. The cross-claim remains even if the application

is discontinued [172]

Either party may move for and the judge may order Determination before trial of a matter of law raised by a pleading [21.01(1)(a)]

Availability : where determination may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs

Summary Judgment (not same as summary trial)-Available only in CML. In ON [R 20.01]-“…a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.” [4] [Hyrniak]

Pleadings: Defense

Timing : A statement of defense must be delivered within 20/40/60 days if the D is served in ON/RoC&USA/Abroad [18.01].

Delivering a notice of intent to defend allows the D 10 extra days [18.02]

D may challenge ON jurisdiction b/f defence [17.06].

Failure to deliver the defence on time allows P to require registrar to note default [19.01], then P to move for default judgment [19.05].

Content : All pleadings, including the defense, must

contain a “concise statement of the material facts…but not the evidence by which those facts are to be proved” [25.06(1)],

Defense must admit, deny, or plead no knowledge of the facts P pleaded. If intends to prove an alternate version, must plead the facts of this alternate version [25.07]

May include a counterclaim, crossclaim, or 3rd party claim [see section on parties, below]

Reply : Only where a reply is necessary [25.08(3)], P must deliver a reply to a defence within 10 days, or if the defence included a counterclaim, within 20 days [25.04(3)]. Reply is necessary, generally, where P needs to

plead an alternate version of the facts than appeared in the D’s defense [25.08]

Pleadings are closed when P has delivered a reply to every defence or has allowed the deadline for a reply to expire, or when every defendant has been noted in default [25.05]

Discovery

16


“Discovery”

SEE ALSO SEPARATE DISCOVERY SECTION FOR MORE THEORY/POLICY, ETC.

Disclosure of exhibits, evidence The P’s judicial application has attached a

summons which includes a list of the exhibits in support of the application and informs the D they are available upon request [145(1), 247(1)]

The case protocol must specify the time limit and procedure for the disclosure of exhibits and other evidence (if none, see 246(2)) [148(6); 246]

The D’s defence must also contain a list of exhibits in support of it [247(1)]

The party in possession of any other evidence it intends to use at trial must send it to the other parties before trial [248] and must also produce it (file it with the court) 15 days b/f trial [250]. Effectively, this means you don’t file what you

don’t intend to use, but if you intend to use, you’d better file!

Real evidence : [251] Note “and other evidence” in 246 “documentary disclosure purposes” in 221

Whereas CML places considerable explicit emphasis on documentary discovery, in CVL, the focus is on documentary disclosure: each party must disclose to the other party the evidence upon which it bases its pleadings (145(1), 274(1)). Parties base their pleadings, of course, on the evidence that is favourable to them. Thus, the question remains, how does Party A obtain

Discovery Plan If there is to be discovery (of documents,

examination for discovery, etc.), the parties shall agree to a discovery plan. [29.1.03(1)]

Timing : earliest of (a) within 60 days after the close of pleadings (or another period if the parties agree); (b) before attempting to obtain evidence. [29.1.03(2)]

Contents : Generally, the plan shall include information concerning scope and timing of discovery, and information to assure “expeditious and cost-effective completion of the discovery process in a manner that is proportionate…” [29.1.03(3)]

Failure : court may refuse to grant motions re discovery; refuse to grant costs [29.1.03(5)]

Proportionality : In deciding whether a person must answer a Q or produce a document, court shall consider: is time necessary reasonable? Is expense justified? Would cause prejudice? Would interfere with orderly progress of action? Is the info avail. From another source? Result in excessive volume of documents? [29.2.01]

Discovery of Documents Timing: to be specified in the affidavit of

documents. [29.1.03(3)(b)] Disclosure : Each party shall disclose (irrespective

of privilege) “every document relevant to any matter in issue in an action” [30.02(1)], in an affidavit of documents served on the other parties [30.03] “relevant” not a particularly high bar. Includes

advance their case or lead to a further train of inquiry; may include documents that are not admissible [Ben v Gates, in which internal police documents had to be disclosed]

The bar is higher, though than USA, where it includes anything: “reasonably calculated to lead to admissible evidence” [Hazard]

Production : A party may after receiving the affidavit of documents, request to inspect a document listed in it. The document must be produced within 5 days [30.04]. Not privileged documents;[30.02(2)], though court may inspect to determine privilege [30.02(6)(d)]

Penalty for failure to disclose or produce: No or bad affidavit : Court may insist on a better

affidavit of docs, order a cross-examination on it [30.06]; revoke right to initiate/continue an examination for discovery, dismiss the action, strike out a defence, make any order such as is just [30.08(2)]

Favourable : A party may not use an undisclosed

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! disclosure from Party B of documents that are not favourable to B’s case? It is not, of course, in B’s interest to disclose these documents or information pertaining to them of its own accord. I’ll admit that this is an area of the course that confused me somewhat. I believe that the answer is that pre-trial examinations serve a documentary discovery purpose in Quebec (“it may be used for documentary disclosure purposes” – 221). 246 and 251 both also seem broad enough to cover evidence that is not favourable to the party disclosing it.

Pre-trial examination: may bear on any fact that is relevant to the dispute [221, note oCCP says “relating to”, Contra USA Hazard] The case protocol must cover number and length of

pre-trial examinations [148(3)], otherwise no such examinations shall occur [221]. also, 5 days notice required [226]

Who : representative, agent, party, victim in ECO, administrator of property of others [221]

Written examination [223-225] Oral examination

Limits : none where claim is less than $30,000; Max 3 hours where < $100,000; otherwise, max 5 hours – extension by consent of parties to 4 or 7 hours respectively [229] – was none for less than $25k, that’s it [oCCP 396.1] Why these limitations? A 2010 report

showed that 50+% of billings were related to discovery.

Objections : if concerning relevance, answer is heard, court decides later; if concerning whether can be compelled to answer, fundamental rights, etc., presented to court within 5 days; or, anticipated objections may be presented to court prior to examination [228]

Sanction : termination with order on legal costs [230]

Recorded [227]

Setting down for trial and judgment [173-178] Deadline : P has “strict” 6 mo. from presumed

acceptance of case protocol or from case management conference to ready case for trial [173], and to file a (joint) declaration of readiness [174] = 245-255 days from judicial application, including 45 days for submission of case protocol [149] and 20-30 days for presumed acceptance or case management conference [150] If P misses the 45 day deadline for filing case

protocol, 6 mo. deadline for setting down for trial starts from service of the judicial application [173(3)]

favourable document at trial, except with leave of the trial judge [30.08(1)(a)].

Unfavourable : Where a party fails to disclose an unfavourable doc, the court may make such order as is just [30.08(1)(a)].

Examination for discovery Who ? Any party who there is reason to believe has

relevant information. [31.10(1)] Timing : Either party may serve notice of

examination after D delivers statement of defense and after party seeking to examine serves affidavit of documents [31.04(2),(3)]

Default : Or, the P may serve the D notice of examination after D has been noted in default [31.04(2)(b)]

I’m first ! Party who serves the notice of examination first gets to do all of its examination first [31.04(3)]

Total Duration : 7 hours max, except by consent of parties or leave of court, which will consider proportionality [31.05.1(1), (2)], only 2 hours in simplified procedure [76.04(2)].

Scope : A person shall answer any proper question relevant to any matter in issue [31.06(1)]

Contra USA where a question is allowed if it “reasonably calculated to lead to admissible evidence” [Hazard]

Frequency : Each person examined only once [30.03], combined where multiple parties are examining that party [30.05]

Oral by default , examining party may choose written if all examining parties agree [30.02]

Sanction -- Adjournment : The examined may adjourn where the right to examine is being abused, conducted in bad faith, etc. (improper questions, interruptions, objections, annoying, embarrassing, etc.); the examiner may adjourn if answers are evasive, too long, etc. [34.14]

The parties then go to court which considers the issue and may make any order as is just, including immediate costs on the motion and further examination, etc.,

Sanction -- Failure to answer : If a question wasn’t answered, the examined party can’t introduce the answer at trial. [31.07(2)]

Also striking out all of the examined person’s evidence, dismiss proceeding, strike out defense, any order court considers just, even contempt [34.15]

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Extension : parties may ask for a longer deadline in

case protocol [158(7)]. If “a high level of complexity” or “special circumstances”, court may extend limit at case management conference. Or may extend after conference, “if the parties show that it was impossible in fact, at the time of the conference, to properly assess how long they would need” [173(2)]

Sanction : If P fails to meet the 6 mo. deadline, discontinuance [177]. P may file anew, but only if prescription rules, etc. allow for this (Arguin v Nault). Relief : After expiry of 6 mo. deadline, court

may modify the case protocol and set a new time limit “if it was impossible in fact…to act within the time limit” [177(2)]. Negligence ≠ impossibility (Arguin v Nault).

Strict : The deadline and sanction are strict [173]. Will be applied irrespective of case’s underlying merit. Its purpose is to prevent delays (Arguin v Nault).

Pre-trial Conference 179 – not mandatory Judicial settlement conference (161-65)

Misc Stuff

Homologation-Court can approve of a legal agreement – gives the force of a judgment [528].TEST:-Homologation will only be done if an agreement is valid (valid consent) and it is a final document that properly quantifies what’s at issue.-Homologation of an agreement in divorce proceeding must be done by trial judge. [SHcSTL]

Discontinuance/Withdrawl-P can voluntarily discontinue action [213].-D can acquiesce in the application [217].

Homologation-No broad application in ON. But court can rule on accepted offer to settle [49.09]

Discontinuance/Withdrawal-P can discontinue action [23.01]-D can withdraw defence (in whole or part). If the whole then they are in default. [23.06]

Costs

Theory and Policy Overview-Costs are a critical element to access to justice. They can be an ‘intolerable burden.’ [ALRC]-User Pays. Default position in US. Pros: Encourages settlement, doesn’t discourage claims from those w/o means). Cons: no deterrence to vexatious suits; takes away contingency fee options [ALRC].-One-way cost shifting. Only one side (usually plaintiff) can recover costs [ALRC].-Costs Indemnity Rule. This is what Canada uses. Supposed to balance awarding meritorious parties with access to

19

David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! justice [Orkin]. But specific rules in different jurisdictions. See below.-UNIDROIT P 25: Winner should be awarded all or substantial portion of costs including lawyers’ feesExisting Costs Scheme-Loser pays “all costs”: includes judicial costs, experts costs (though judge can reduce). In personal action costs won’t be more than amount of condemnation [477, existing].-However, costs are prepared according to tariffs in force [o480].-Tariff of judicial fees of advocates not updated since 1976. Generally = around 5% of extra-judicial fees.-If amount over $100,000, there’s an additional 1% on anything over $100,000 [Tariff, s. 42].-Also special costs for “une cause importante” [Tariff, s. 15; Royal Lepage].-“Une cause importante” is generally linked to the public interest [discussed in Royal Lepage].-It is possible to claim extrajudicial fees through ECO civil liability. However, there would have to be evidence of bad faith or recklessness – reasonable person would have to conclude claim has no basis and chance for success. This goes beyond having a weak or fragile case which must be allowed for legal evolution [Royal Lepage]

New Costs Scheme [New CCP]-Legal costs owed to successful party (except in family matters, and cases of personal integrity or status where parties bear own costs) [340].-Costs include court fees, experts fees, witness indemnities, etc. [Notably absent are extrajudicial fees] [339]BUT – Special Costs for Abuse-Court can order winning party to pay costs if

* it did not observe proportionality,* it committed abuse,* it it breached undertakings, missed timelimits,* necessary to prevent serious prejudice. Also possible for undue delay or need for new expert [341].

-Substantial procedural misconduct can be punished with cost orders – including extrajudicial costs/compensation for unrepresented party [342].-Court can order costs, damages (including to cover extrajudicial costs) and punitive damages to punish abuse [54; Oasis]- If a claim is manifestly unfounded, frivolous, vexatious, excessive and unreasonable in the circumstances (according to 51-52), a court can declare the action abusive and avail itself of remedies including granting extrajudicial fees/costs and punitive damages in CCP 54 [Oasis].[Note in this case plaintiff’s were seriously out to lunch: had already contested trademark violation and lost;

General Rules-If default judgment, P gets costs under Tariff A (partial indemnity) [19.04(6)].-If all or part of a claim is discontinued any party may make motion respecting costs [23.05].-Subject to procedural rules, court has discretion to determine ‘by whom and to what extent the costs shall be paid.’ [ONCJA, s. 131].-In exercising s. 131 discretion, court should consider: [57.01] (0.a) Principle of indemnity (0.b) Amount of costs unsuccessful party could

reasonably expect to pay. (a) amount claimed (b) apportionment of liability (c) complexity of proceeding (d) importance of issues (e) conduct of any party re delay (f) vexatious, negligent, etc conduct (g) party’s refusal to admit anything (h) joined or separated proceedings (i) any other matter relevantWhile courts have discretion, fixing costs must be done on a ‘principled basis’ in line with R 57. The general rule is the winning party gets partial indemnity costs (Davies) A ‘risk premium’ for a lawyer working without

compensation, for example, is not appropriate, b/c can only apply to P and b/c D can’t know if P’s lawyer isn’t paid (Rothstein J in Walker v Richie).

Generally works out to 40-60% of extrajudicial fees.

Offers to Settle-Where P makes offer (at least 7 days before hearing) that is refused and then obtains judgment as or more favourable to offer, P gets partial indemnity costs up to offer and substantial indemnity (1.5x) costs thereafter [49.10(1)].-Where D makes offer as above, P get partial indemnity costs up to offer and D gets partial indemnity costs thereafter [49.10(2)].-R 49 is affirmed in Davies and Walker and Kalish.-A judge may reduce the amount of the indemnity, particularly if costs are more than damages claimed, or the amounts claimed by lawyers seem too high. Justified by proportionality and reasonable expectations to do what is fair and just [Kalish].-In BC, where plaintiff gives favorable settlement that is refused double costs are awarded (BC Supreme Court Civil Rules, R 9-1). A late offer does not negate this rule. [JD v Chandra]

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! didn’t disclose vital contested judgment; took the public to be total idiots, etc.] [Oasis]-Legal costs bear interest at legal rate [343].-Bill of costs [344]

-QC court may not enforce foreign judgment with order for extra-judicial costs if disproportionate (by QC standards) or against public order [McKinnon].

Special Costs-Possible to give substantial (or even full?) costs where a party is worthy of sanction: ‘reprehensible, scandalous, or outrageous conduct.’ (Davies).-Such conduct must be beyond just refusing to settle – there must be clear abuse of process (Davies).

COSTS (EXCEPTIONAL ORDERS)Against Solicitor Personally-Costs orders against lawyers (personally) should be used with ‘extreme caution.’ The7 can put lawyer in conflict situation with their duty to their clients [Beardy].-At common law these can be awarded through inherent jurisdiction, but bad faith is required [Beardy].-In ON, if a lawyer has costs to be incurred without reasonable cause or to be wasted by undue delay, negligence, or other default, the court can order the lawyer to personally pay costs [57.07(1)]. This does not require bad faith like the common law rule [Beardy].-Assumedly, a QC judge could make this order as well under inherent jurisdiction [25; 49].

Interim/Advance Costs Orders-Exceptional ex ante order that opposing side pay costs until end of case. Unique to Canada [Tollefson].-Rationale: Policy instrument that looks beyond indemnification to public interest and access to justice. To ensure important issues get to court. [Tollefson; Okanagan].-TEST. Okanagan Indian Band , 2003 SCC 71: LeBel J : (i) party seeking costs genuinely can’t afford litigation; (ii) prima facie meritorious claim; (iii) transcends interest of individual litigant and an issue that hasn’t been previously resolved. [also Tollefson][Dissent: Should not prejudge the merits; should avoid ‘judicially imposed legal aid’].-Claim must also be “sufficiently special:” there would be an ‘injustice’ to public at large; all other funding sources exhausted; no other prospect of settling matter [Little Sisters II; Tollefson].-In Little Sisters II advance costs are denied. Just a small business. Not special/exceptional [Tollefson].-In Caron, advance costs granted [superior court ‘assists’ provincial court by granting them]. Just a traffic violation but court says claim attacks merit of entire corpus of AB’s statute so must be herad [Tollefson].

Public Interest Costs-For special costs once a case is decided (ex post). [Tollefson] This can be full indemnity [Carter]-Previous Victoria test looked at which party is better able to bear costs.-New test: (i) Truly exceptional public policy interest. Not just beyond individual but with ‘significant and widespread societal impact. (ii) Beyond not having economic interest, plaintiffs must show it would not have been possible to effectively pursue litigation with private funding. [Carter]-QC exception. Court can use discretion to give interim costs in a private case if: (i) inability of one party to pay; (ii) prima facie abusive behavior of other party; (iii) sufficiently special/exceptional case. [Hétu][Note, this would likely now be taken care of with 51-53 CCP]

Security For Costs-QCCA can subject appeal to provision of suretyship to guarantee payment of costs [364].-If plaintiff not resident in QC, D can require P be ordered to provide suretyship for costs [492].-Court can order security for costs where: P ordinarily resident outside ON; P has another proceeding for same relief; D has order for unpaid costs in another proceeding; good reason to belief there’s insufficient assets; good reason to believe action is frivolous/vexatious; statute allows it [56.01(1)].-Two step analysis for 56.01(1): (i) onus on moving party to demonstrate good reason that factor in 56.01(1) exists; (ii) onus shifts to responding party to show that they are either impecunious or have sufficient assets (evidence must be shown – threshold high for impecuniosity) (Sprinkles Cupcakes).-Generally security is only required in stages (as the lawsuit goes on) (Sprinkles Cupcakes)

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Class Actions

-Entirely a creature of statute and instrument of policy.-“A procedural means enabling a person who is a member of a class to sue, without a mandate, on behalf of all the members of the class and to represent the class.” [571]-Rationale: (i) judicial economy; (ii) access to justice; (iii) behavior modification/deterrence (Hollick).-Class action legislation should be ‘construed generously’ (Hollick).Authorization Criteria1. Commonality. Members’ claims raise identical, similar or related issues of law or fact. [575(1)].-Only requires a ‘common question’ not a common answer. Doesn’t have to be same benefit to each class member, just no conflict [Vivendi].-This is even more flexible than CML standard.[Vivendi]2. Prima facie cause of action . Facts alleged appear to justify conclusion sought. [575(2)].3. Identifiable group. Composition of class makes it difficult/impracticable to apply rules for mandates to sue on behalf or for consolidation. [575(3)].4. Representative plaintiff. [575(4)].-Requires: (i) standing; (ii) competence; (iii) absence of conflict [Videotron].-If these met, even if other class member haven’t been found, authorization is granted [Videotron]-If multiple Ds, representative plaintiff doesn’t need direct legal link/cause of action for each, only ‘sufficient interest.’ Just need real subgroup for each D. Justified by proportionality [Marcotte].

*Proportionality cannot function as an equivalent of ON ‘prefreable procedure’. Proportionality can be considered in each of four criteria, but it is not it’s own separate criterion (Vivendi).

Appeal: A judgment denying authorization can be appealed as of right. A judgment authorizing can only be appealed with leave [578].

Role of Court-As soon as application for authorization filed, a judge is appointed for case management [572].-Judgment of authorization describes class/sub-classes, appoints representative P, etc. [576]-Court can order notice published at any time [581]-Representative P must have authorization of the court to amend a pleading, discontinue action, withdraw pleading. Court can impose conditions to protect rights of class members [585]-Court can revise or annul authorization judgment if necessary [588].-Settlement must be approved by the court [590].*When doing this, the court can reduce lawyer fees

Certification Criteria1. Commonality. Claims raise common issues [Class Proceedings Act, s. 5(1)(c)].]-Must be ‘rational connection between class as defined and asserted common issues.’ This fails where the class is defined so broadly that it includes people whose claim is not sufficiently connected to that of the representative. The test is passed wherever it is not “plain and obvious” that no claim exists. Evidentiary burden here is on the P [Hollick].2. Pleadings disclose a cause of action [CPA, s. 5(1)(a)].3. Identifiable class [CPA, s. 5(1)(b)].-Must be measured by objective criteria (not linked to merit of claim) and be a bounded class (not unlimited). It can’t be an entirely known class, either (Hollick).4. Representative plaintiff who can fairly represent class w/o conflict [s. 5(1)(e)].*5. Proceeding is preferable procedure for the resolution of common issues [s. 5(1)(d)].*-Must analyze action in light of: (i) judicial economy; (ii) access to justice; (iii) behavioural modification/deterrence. Common issues must be examined in whole context. Other avenues of redress should be considered (failed in Hollick).

Appeal: Party can appeal from order refusing certification. Party can appeal from order certifying with leave [CPA, s. 30(1), (2)].

Role of court-Court can determine conduct of proceeding to make it fair and expeditious [s. 12]-Court can stay any other proceeding [s. 13]-Court can permit one ore more class members to participate/intervene [s. 14]-Court must approve notice before given [s. 20].-Proceeding can only be discontinued with approval from the court [s. 29(1)].-Settlement is only binding is approved by the court [s. 29(2)].-Agreement respecting fees and disbursements only valid if approved by court [s. 32(2)]

Process/Discovery-Generally same discovery rules as other proceedings

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! earned on contingency if appropriate! Should consider factors in s. 3.08.02 of Code of Ethics of Advocates. [Landry].-If asked to homologate foreign class action it ensures proper notice, etc. [594].

Process/Discovery-Originating application must be filed no later than 3 months after authorization [583].-Only representative P and intervenors can be subject to pre-trial examination [587].-Representative P retains sufficient interest even if own claim is settled [598].-Representative P can get indemnity to cover legal costs [593]

Opt Out-Period must be more than thirty days less than six months after notice [576].-Person who wishes to opt out must notify court clerk before time limit [580].-Judgment is binding on all members who haven’t opted out [591].

Notice-Authorization judgment orders publication of notice to class members [576].-Notice must contain: class/subclass; principal issues; representative P’s info; right to intervenor status; right to opt out; no requirement for costs; any additional info needed [579(1)]-Court determines best method [579(2)]-Court will order publication of notice once final judgment has been rendered [591].

Costs-S. 42 of the Tariff of judicial fees does not apply to class actions [1050.1 (existing)]-Won’t matter under new code.

Collective vs Individual Recovery-Court orders collective recovery (i.e. lump sum) if evidence allows sufficiently precise determination of claim amount [595].-If issues remain undecided court will order individual recovery. [599].

Other-Central registry kept at QCSC [573].-Class member can only intervene voluntarily if ofassistance to rep P [588s]

[s. 15(1)]. Need court authorization to examine class members other than representative P [s. 15(2)]

Opt out-Any member can opt out of proceeding in manner and within time specified in certification order [s. 9]-Settlement approved by court binds all class members [s. 29(3)].

Notice-Notice of certification must be given by representative P to class members [s. 17(1)]-Notice shall: descrive proceeding; state opt out options; financial consequences; agreements with lawyers; counterclaims; binding nature; right of participation; give info for inquiry [s. 17(6)]

Costs-In exercising discretion on costs, court can consider if action was a test case, raised a novel point of law, or involved public interests [s. 31(1)].-Class members other than rep P no liable [s. 31(2)]-Class Proceedings Act allows discretion for costs where class proceeding raises a novel point of law or involves public interest. However, where a normal commercial case with well-resourced parties, the winning party will get their costs as normal. Representative plaintiff can be held solely responsible for defendant’s costs if action fails. [Kerr v Danier].-Some provinces have no cost rules [BC, MB, SK]. In ON – make sure you’ve got contingency!

Collective vs Individual Recovery-Where possible court can determine aggregate or part of defendant’s liability to class members [s. 24]-Court may also considers that the participation of individual class members is required [s. 25].-Court can then decide whether lump sum or individual payments required [s. 26].

Multiple Claims-In QC, the rule is first to file. [Hotte]. Critique: ambulance chasing.-In ROC, it’s based on a carriage motion. Which firm best placed?

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! National Class Actions-No national class action legislation in Canada. It would be useful for judicial economy [McNamara].-Notice is a major issue here. If there is not sufficient notice, then failure to opt-out in another province (ON) may not be enforced in QC [McNamara; Lepine].-Court can’t refuse authorization if class is part of multi-jurisdictional action outside QC. But they can disallow a discontinuance if harmful to class members! [577].

Protective Measures / Injunctions

Interlocutory injunction Def : An interlocutory injunction is an order issued by a superior (s96) court (inherent jurisdiction, see 49; OCJA

11(2)) directing a person to do or not do something [509] issued in respect of proceedings b/f they are concluded [510].

Why ? Defendants cannot be allowed to make themselves judgment proof! [Tracy; 511] When ? Any time – during proceeding or even b/f originating application in an urgent case [510; 40.01].

Suspension/renewal: as necessary [511(3)] Service B4 : application for interlocutory injunction must be served [510; combined effect of 37.07(1), 40.02]

Except if Provisional Injunction: In an urgent case, court may grant a provisional injunction for max 10 days even b/f service [510(2); 40.02(1)], extensions possible [511(3); 40.02(2),(3)]

Service After : The judgment granting the injunction is also served [509(2)] Surety : may be required from requesting party to cover costs and prejudice to other party if unfounded [511(2)].

In ON, Shall be required unless judge decides otherwise [40.03] Appeal : interlocutory injunctions are generally subject to appeal, in ON, to the divisional court (ONCJA 19), and

in QC, to the QCCA (CPP 30). They remain in effect pending appeal, unless the judge orders otherwise [514]. Sanction is contempt [515]

Interlocutory injunction TestDiscretion: Injunctions arise out of equity and are therefore discretionary. A judge may thus grant an interlocutory injunction where one appears “just and convenient” [ON Courts of Justice Act s 101]. RJR MacDonald, however, set out criteria by which courts will determine if this discretion ought to be exercised. [codified in CPP 511 ]. (1) Prima facie merit: Is there a serious question to be tried?

Low bar , excluding only frivolous / vexatious motions. Extremely limited review of the case on the merits. If Q is of pure law, judge may deliver final judgment.

(2) Will the applicant suffer irreparable harm if the relief (injunction) is not granted? Nature of harm, not magnitude, is relevant. Generally, pecuniary harm is insufficient b/c it can be remedied via damages, but may suffice w/ Charter

litigation b/c damages often not recoverable. Where the applicant is the government, harm = harm to the public interest. Classic examples of irreparable harm: failure of a business, irrevocable damage to reputation.

(3) Balance of inconvenience: Does the harm that would be suffered by the applicant were relief denied outweigh the harm that would be suffered by the respondent were it granted?

Esp. in Charter cases, interests of the public may be taken into account. E.g. harm to public health caused denial in RJR MacDonald.

Critique of test: Unless facts complex, courts should adjudicate on the merits. Often a case turns on the injunction. Moreover with current test they can be used very strategically [Groleau].

Freezing Order (Mareva Injunction) [Tracy] Def : An interlocutory injunction issued by a superior (s96) court (inherent jurisdiction, see 49; OCJA 11(2))

forbidding a D from disposing of or dissipating assets (even those in the hands of a 3rd party) pending judgment. Advantage : Directed at a person: An action in personam, not in rem. Therefore can apply abroad. Has developed

to preserve the efficacy of judgments in this day of instant communication and paperless cross-border transfers.

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Test : Generally, the RJR MacDonald test for interlocutory injunctions applies, but Judges need to be very

cautious and prudent in the issue of these orders. Don’t apply slavishly. Overall consideration is that must be just and equitable. Thus: [Tracy] (1) requires a “good arguable case”, which is higher than RJR Real risk : The extreme nature of the Mareva injunction requires that it only be granted where the applicant

shows that there is a real risk of disposal or dissipation of assets so as to render any judgment irrelevant. Proportionality of quantum : The applicant must also show that the extent of the amount sought to be frozen

bears some relation to their potential damage award. Distinct from seizure b/f judgment, which involves dispossession of assets rather than freezing of assets. May be

sought in QC too. Policy issues: Enjoins a person from exercising property rights! May prevent D from, e.g., operating business.

May be used as a form of judicial blackmail to ensure D just settles, irrespective of merit!

Anton Pillar Order [Celanese] Def : An interlocutory injunction issued by a superior (s96) court (inherent jurisdiction, see 49; OCJA 11(2))

directing the D to permit representatives of the P to enter the defendant’s premises for the purpose of removing certain documents and things (including information stored in electronic format).

Purpose : to preserve relevant evidence that might otherwise be destroyed or concealed by the defendant Ex parte : by necessity!

ON basis : 45.01 authorizes an order “for the preservation of any property in question in a proceeding” and authorizing entry into the target’s property.

Test : These orders are “draconian” re: privacy possible prejudice. Thus, court must exercise restraint in granting, should insist on safeguards, and must be executed narrowly and with discipline. (1) Strong prima facie case (higher than RJR) (2) the damage of the D’s alleged misconduct (destroying evidence) to the P is very serious (3) There is convincing evidence that the D has incriminating documents or things related to the claim,

RJ: Focus tends to be on 1) the dishonest character of the target and the 2) ease with which the evidence could be disposed of, allowing court to draw an inference

(4) There is a real possibility that the defendant may destroy the material before discovery would compel him to turn it over.

RJ: (iv) is so strong it may be ignored. Courts look instead at: nature of information (how easy to destroy and dishonest character of D [Malik]].

Conditions : Given that the motion to obtain the order is ex parte, D must make a full and frank disclosure of all the relevant facts. Also, generally security.

Safeguards : independent solicitor to supervise the search; surety : undertaking/security to pay damages if the order turns out to be unwarranted or wrongfully executed

– Binnie said this was required (Celenese) Narrow scope for order and execution use of seized documents must be restricted to only such uses that are pertinent to the litigation; P required to return the seized documents as soon as practicable; privileged documents, must be protected legal counsel? Should target be allowed to call lawyer? This hasn’t been addressed.

Remedies for target: Apply to court to annul/vary order b/c was improperly conducted, was improperly granted, etc. Have material returned Disqualify lawyers involved (solicitor-client violations esp. [Celanese]. Award of full-indemnity costs (covering extra-judicial legal fees) -- The fees needed to have the order

quashed, for example

Seizure Before Judgment (QC ONLY) With authorization of the court, the P may seize the D’s property b/f judgment if there is reason to fear that

recovery of the claim might be jeopardized w/o the seizure [518]

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Also moveable property the P has the right to revendicate [517]. In ON see Interim Order for Recovery of

Personal Property [ON Courts of Justice Act s 104; ON r 44] Test : Are there precise and particular facts, reasonably observable by an objective bystander, demonstrating that

the defendant has the intention to hide or dispose of his property with a view to preventing execution of the judgment? Test fails if no history of or evidence for “disloyal maneuvers”. Assume facts alleged are true. [Opera]

Purpose : to place property in hands of justice while proceeding is pending [516] When : anytime – b/f commencement, in course of proceedings, while under appeal w authorisation of first

instance court [516(2)] Where does it go ? Seized property is generally placed in the custody of a 3rd person [516(3)] Quashing : apply within 5 days, though exceptions to this deadline if serious reason for an exception (e.g. foreign

company – Opera) [See also sequestration, 3rd party instead of court holds the property – 524]

Garnishing Order (Greater Vancouver Sewerage) BC Court Order Enforcement Act s 3(2) allows for a P to apply for a pre- or post-judgment garnishing order; an

order, that is, allowing the P to seize amounts owed by a garnishee to the D as they become due. The rationale behind these orders is to prevent the defendant from disposing of, absconding with, or in any other

manner disavowing themselves of funds available to satisfy the debt. TEST: In order to get a garnishing order, plaintiff must be able to show that: (i) there is an action; (ii) that the

debt is liquid and justly due and owing. [Court Order Enforcement Act, s. 3(2)] This is an extraordinary remedy. These can be released where it is ‘just in all the circumstances.’ Important to consider whether there is an

actual risk that the defendant may dispose, abscond or otherwise disavow itself of funds. Purpose is not to balance inequities – that’s what trials are for.

Notification / Service

Notification [ 109-140 ; 16 ] Why important? To ensure that the party can exercise right to be heard [17] What must be notified/served? How?

What CVL? Judicial application [109], answer [147(2)], other Ds’ answers [147(3)], How CVL? “Notification may be made by any appropriate method…” [110], including, if the recipient party

is represented, technological means [133]. This agreement part of case protocol (148(9)). Courts may allow service by non-traditional means where the circumstances require it. –

FACEBOOK! b/c no address and the person was responding to msgs. (EN c JM) What/how CVL : Personal service [16.02] required for statement of claim [16.01(1)], but most other

documents, e.g. most motions [37.07] may be served via mail, electronically, etc. [16.01(4)]. Legal Persons :

QC : At head office, or if head office outside of QC at ‘establishment’ in QC with officer/director or person who can give to officer/director (125).

ON : With officer, director, or agent or any person who appears to be in control/management (16.02(1)(c)).

Terms : “service” = notification via court bailiff [110(2)]; “deliver” = serve & file w/ proof of service [1.01(1)]

Can’t complain if you acknowledged it ! Purpose of notification is to bring a doc to the attn of the notified [109]. Thus if they confirm receipt, notification effective [110(3)]. / If a D delivers a defence, notice of intent to defend, notice of appearance, she is deemed to have been served the statement of claim [16.01(2)]

Exceptions : can’t be notified at church, in an admin. tribunal, in the national assembly [115].

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-For a dissenting point of view see Zuckerman who argues procedure must be enforced to be meaningful.

Plurality of claims, Parties, Intervention, Etc.

Plurality of Claims 2+ “subject matters or claims may be joined in the

same judicial application provided the conclusions sought are compatible.” [143(1)] The goal of this provision (actually

CCP_OLD 66, unclear if meaning is same!) is efficiency. It does not allow joinder of wholly unrelated claims or of claims that cannot be the subject of a single inquiry, claims where different courts have subject matter jurisdiction [Saint Martin]

Consolidation/Relief against Joinder

Consolidation power : Court has broad power to consolidate proceedings or to hear proceedings provided this does not result in undue delay for the parties or serious prejudice to a 3rd person [210],

Relief against joinder : court may split proceedings in order to protect parties’ rights [211, 210(3)] Case Management Power: also includes

power to consolidate, separate, or split proceedings [158(1)]

Separate hearings are possible [209]

Multiple Parties when Action Originated Multiple Ps : 2+ Ps “may join their claims and

conclusions in the same application if they have the same juridical basis, are grounded on the same facts or raise the same law, or if circumstances permit.” [143(2)]

Multiple Ds : A P may, in the judicial application, take action against multiple defendants. P must notify all of them who did and did not answer [147(3)]

Joinder of Claims A P may make join any claims she has against a D

[5.01] Relief against joinder [5.05]

Consolidation/Relief against Joinder Consolidation/Hearing Together : Court has broad

discretion to join matters or to hear them together [6.01]

Relief against joinder : to split claims, order separate hearings, etc. where joinder may unduly complicate or delay the hearing or cause undue prejudice to a party [5.05]

Separate Hearings : These are possible too [6.1.01]

Multiple Parties when Action Originated Multiple Ps : 2+ Ps may join as plaintiffs in the same

proceeding where they assert claims to relief arising out of the same transaction/occurrence, or there are common question(s) of law/fact, or where joining may promote the convenient administration of justice. [5.02(1)]

Multiple Ds : 2+ Ds may be joined as defendants/respondents where there are asserted against them claims to relief arising out of the same transaction/occurrence, or there are common question(s) of law/fact, or where there is doubt as to which D is liabile to what extent, or where joining may promote the convenient administration of justice. [5.02(2)] The general rule is that the P may pick who she

Failure to respond to service? Debate as to whether a default judgment should be revoked:9026-8863 Québec Inc. v. Best Buy Canada Ltd , 2006 QCCS 6528 and 2007 QCCA 936 -Plaintiff served with bailiff to managers as per CCP 125 twice. BB employees fail to tell head office.-QCCS (Julien J) refuses to revoke the default judgment. Not plaintiff’s responsibility to ensure BB employees know what to do when served by bailiff.-QCCA sets aside default judgment. BB has serious defence, nothing frivolous. Justification: CCP 25.-Note: A key case demonstrating that procedure serves substantive law (Jolowicz).

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Cross-Claim (=CML counterclaim, ≠ CML cross claim): Cross Claim : “A defense may make a [written]

cross-claim against the P, asserting a claim arising from the same or a related source as the application [172]. The cross-claim remains even if the

application is discontinued [172]

Forced Intervention (Mise en Cause) Who may be forced to intervene? A party may

implead a 3rd person so the dispute may be fully resolved, or so the judgment may be set up against the 3rd person. [184(2)] The goal here is to reduce costs and avoid

useless repetition of actions [Kingsway General]

Process : A party may serve on the person a declaration of intervention, setting out grounds justifying the forced intervention, w/ judicial application, also w/ intervention procedure w/ due regard for protocol [188]

Recourse in warranty : is another form of forced intervention in QC [189-90], applicable in narrow circumstances which include solidary debtors [Kingsway]

Voluntary Intervention [ 184-187 ] Who may voluntarily intervene? A person

claiming to have against a party a right that is in dispute (aggressive) a person wishing to be substituted for one of the parties, or to be joined with a party to assist or support it’s claims (conservatory). In either case, if the intervention is successful, the intervener becomes a party. [185]

Process : A person who has an interest in a proceeding but who is not a party may notify the parties with a declaration of intervention [186] Content : Must set out interest & claims,

sues [School of Dance]

Counter-claim Counterclaim: The D’s defense may include a

counterclaim against the P for any right or claim the D has against the P [27.01(1)]. Trial and Disposition : court has flexibility.

Generally, will be tried together. But one may be stayed until the other is resolved, or they may be separated, if appropriate [27.08-27.09]

Against P and others : The D may include in the counterclaim any person “who is a necessary or proper party” to it [27.01(2)] Service where a counter-claim is made

against a new party, it must be served on that party within 30 days [27.04(2)]

Defence to counterclaim where the counterclaim is made against a new party, that party will have 20/40/60 days to deliver a defence if in ON/RoC&USA/Abroad [27.05]

3 rd Party Claim : The D’s defense may include a a claim against a 3rd party [29] Conditions : Available where 3rd party: may be liable

to D for P’s claims, may be liable to D due to transaction/occurrence (or related one) involved in the main action, or 3rd party should be bound [29.01]. Most often, involves questions concerning distribution of fault/damages in negligence claims. 29.02 et seq contain rules concerning leave,

notice, timeline for defence, etc. Generally, they mirror rules of analogous situations.

29.09 – Prejudice to P. Wilson Cartage dealt with a similar provision in the Construction Lien Act.

Cross Claim crossclaim is against a co-defendant [28],

Intervention [ 13 ] Conditions : A person not party to a proceeding may

move for leave to intervene if: he/she has an interest in the subject matter, would be adversely affected by a judgment, if there are one or more questions of fact/law in common b/t the person and a party. [13.01(1)] Protection of a proposed intervener’s integrity

is a legitimate interest [Beardon v Lee] Evaluation : Court considers if intervention will

unduly delay or prejudice the determination of the rights of the parties, may make any order as is just. [13.01(2)] Court should exercise caution. Intervention

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! conclusions sought, and supporting facts. Also proposed intervention procedure, with due regard for case protocol [186]

Opposition: existing parties may notify 3rd party and other parties of opposition to intervention within 10 days [186(2)], then intervenor may intervene only with court authorisation [186(2)]

No Opposition : if no response from existing parties, intervention presumed accepted. Intervenor must file declaration of intervention with court [186(2)]

Friend of the Court : court may authorise a person to participate in arguments if this is expedient. Does not become a party. See 187 for procedure. Involves notice to parties and decision by court.

Forced Intervention (=CML Joinder of necessary parties)

Case Management Power : Court may order notification of 3rd parties affected, and invite the parties to implead a 3rd person if it considers that person’s participation is necessary in order to resolve the dispute [158(4)], see 184(2)

Organization of Hearings Court may hear distinct matters pending before it

together when doing so is appropriate

motions will be rarely granted [Beardon v Lee]

Friend of the Court : Judge may grant leave for or invite intervention to render assistance to the court by way of argument [13.02]

Joinder of Necessary Parties Persons shall be joined as a party to the proceeding

if their presence is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding [5.03(1)]. Court may order this [5.03(4)] This is a narrow exception to the general rule

that plaintiffs decide who to sue. That the party’s interests would be affected/prejudiced is insufficient. That’s the test for intervention under r 13. Bar here is higher. Necessity is key [School of Dance].

A party may be necessary where its interests may be affected or prejudiced by a court order [Dance]

Abuse Procedures

ANY TIME: Abuse of Procedure A court may, at any time, on the motion of any

party, or on the court’s own initiative, declare a judicial application or a pleading abusive [51] An order dismissing a judicial application for

being abusive is appealable only by leave [CCP 33(2)(3)]

Abuse is: [51(2)] Regardless of intent, application/pleading that

is clearly unfounded (same test as 168(4) – Acadia Subaru), frivolous, intended to delay; conduct that is vexatious or quarrelsome;

use of procedure that is excessive, unreasonable, prejudicial, or that defeats the ends of justice, particularly if it operates to restrict another person’s freedom of expression in public debate [effects clasue]

ANY TIME: Abuse of Procedure (Summary Procedure) The court may, on the motion of any party or on

its own initiative, stay or dismiss a proceeding or motion as frivolous or vexatious or otherwise an abuse of the process of the court [2.1.01-2.1.02]

Process: [2.1.01(3)] Court notifies (possibly abusive) party that the

motion is under consideration Party has 15 days to file a max 10 pg.

submission in writing, otherwise court may make order

Court may allow other party 10 days to file a max 10 pg. opposing submission

Other ON Procedures relating to abuse Determination of an issue before trial: the

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! SLAPP (Strategic Litigation Against Public

Participation): note gray text. [Acadia Subaru] This portion requires intent (intent was present: threatened to withdraw advertising from radio station). Jukier might argue it doesn’t anymore based on “irrespective of intent” but given that this clause appears to apply to the pervious sentence, she appears to be wrong.

Onus : Initially, party invoking abuse must “summarily” establish the application/pleading “may constitute an abuse of procedure”, then reverse onus: impugned party must establish procedure “is not excessive or unreasonable and is justified in law” [52(1)] “summarily” means fast, not lower BoP.

Unclear if first step can be met by effects only [Acadia Subaru]

Oral : Presented and defended orally [52(2)] Remedies :

If Abuse : dismissal of application or rejection of pleading, refusal of examination [53(1)]; Costs [54(1)]; Damages [54(2)]

If possible abuse : conditions to be followed hence forward, undertakings, temporary stay, special case management [see 157] [53(2)]; Costs [54(1)]

Where quarrelsomeness, may disallow further judicial applications except w permission of chief justice [55]

Punish directors behind the veil for legal persons [56]

Courts must exercise caution in dismissing actions, may resort to other remedies (e.g. security for costs) given the extreme importance of access to courts. [Acadia Subaru]

CONSIDER also, preliminary exception to dismiss an application or defense as unfounded in law, though this has more to do with merit than abuse [168(4); Acadia Subaru]

CONSIDER: Vexatious Litigant Order: See to the right.

defendant may also move for dismissal of the action under r 21 on the basis that it is frivolous, vexatious, or otherwise an abuse of process -- full factum, different timeline. The summary procedure at 2.1.01 is somewhat

easier than the determination of an issue before trial provision under r 21: The prior applies to motions as well as actions, and allows only a 10 pg. submission from the mover with the possibility for a 10 pg. response.

Also, court may, of its own initiative, or on the motion of a party, strike a pleading on the basis that it may prejudice or delay action; scandalous, frivolous, vexatious; abuse of process [25.11]

SLAPPs in ONTARIO-ON has pending legislation for this, Bill 52 (2014).-It seems poorly drafted right now. If defendant shows expression related to public interest, plaintiff must show substantial merit and that other party has no valid defence! [Brown]-We also have to look at this from both sides. What does it mean for abolition clinics [Brown]-BC was first province to have legislation but it has since been repealed.

Quarrelsome Conduct Order The right to bring a claim to an independent

tribunal is a fundamental right [QC Charter s 23] and a basic requirement of the access to justice. However, exceptionally, where a person has acted in bad faith, the court may abridge this right [Pixcom v Fabrikant]

Where a person exercises litigious rights in an excessive or unreasonable manner, the court may prohibit that person from instituting an action except with authorisation. (QCSC Civil Rules of Practice r 84; Ontario Courts of Justice Act s 140)

The court’s power to issue this order flows from superior court’s inherent jurisdiction, codified in cCCP 46 / nCCP 49 [Pixcom v Fabrikant] Also, now codified at 55

Standing

To invoke the jurisdiction of the court, a litigant needs legal capacity to sue (or be sued), a live controversy, and a sufficient (personal or public) interest.

30

David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Capacity: Tutors, curators, etc. act in name and capacity of those they represent, [89] – called “litigation guardian” in ON

[7.01 et seq]. They must hire lawyers [87; 15.01(1)] Natural persons may self-represent [23; 15.01(3)] May not self-represent: tutors, curators, etc.; rep P in class action, legal persons, etc. [87]. In ON, legal persons

may self-represent w/ leave [15.01(2)] WTF? Re: capacity generally, see CCQ 153 et seq Live Controversy Courts not required to decide theoretical questions, or to adjudicate when a judgment would not put an end to the

uncertainty or controversy [10(3)] There is no live controversy where the tangible and concrete dispute has disappeared such that the issues are

academic [Borowski] Mootness can be raised any time b/f judgment [Borowski] Declaratory judgments are still allowed under this rule, because they are only allowed when there is a “genuine

problem [142]”. Def: judgment “determining the status of the P, or a right, power or obligation conferred on the P by a juridical

act” [142; see also ON Courts of Justice Act s 97] Court has discretion to hear moot issues, but it should only exercise this discretion where the policy rationales

generally precluding adjudication of moot issues do not apply. In particular, court should consider: Borowski Court’s competence – the court relies on the adversarial relationship, so generally only where it remains. judicial economy – avoid future litigation, issues where Q almost always moot when arrives at court (labour

disputes), SCC doesn’t love this reason… Role of the court is judicial not legislative – this one failed in Borowski. Private reference!

Additional reasons courts shouldn’t court hear moot cases: too general precedent if there are no facts…Legal Standing: Generally, person suing must have personal interest [85]

Legislation may “deem” standing, e.g. QC CPA s 316 for consumer advocacy bodies. AG can intervene w/o proving an interest [79] A private litigant cannot revive litigation in which it has no personal interest [Alliance for Marriage and

Family v AA] The court may grant discretionary public interest standing where (not checklist!): [Downtown Eastside; 85(2)]

(1) There is a serious justiciable issue raised Requires (often constitutional) importance, some prima facie merit, only 1 serious issue needed.

(2) Where the P has a real stake or genuine interest in it P must be engaged in issues raised, screens out busybodies,

(3) the proposed suit is a reasonable and effective way to bring the issue before the courts Historically, this was “no other reasonable and effective manner”. It was where Ps fail the test. [e.g.

Canadian Council of Churches, CBA v BC] Downtown Eastside softens this: Not a rigid requirement that there is no other way of getting issue b/f

courts. Consider: is alternative means realistic more efficient and effective use of judicial resources? Should challenge a particular piece of legislation [CBA v BC, though unclear post D Eastside]

Test is not a rigid checklist, but must be applied in a purposive manner, with reference to: [Downtown Eastside] judicial resources (don’t grant too often, or floodgates; busybodies) need adversarial debate, contending POV

role of courts: not legislatures!

Jurisdiction

Geographic Jurisdiction Geographic Jurisdiction (Commencement / transfer)

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Default The court of the district in which the

defendant (or one of them) is domiciled has territorial jurisdiction. [41]

The plaintiff may also bring the action : Where the K was made [42(1)] For applications concerning ECO, where

the injurious act or omission occurred or where the injury was suffered [42(2)]

For apps concerning immovable property, where the property is wholly or partly situated [42(3)]

Transfer power : Chief justice may order transfer to another district “in the interests of the parties or of the third persons concerns or if warranted on serious grounds.” [48]

Special rules for employment/consumer contracts, insurance contracts, hypothecary rights [43]; capacity [44]; family matters [45]; succession matters [46]; incidental applications (recourse in warranty, etc.) [47];

The ON system >>> appears to grant the plaintiff more freedom to, in most circumstances, commence an action wherever within the province she wishes [13.1.02]. In practice, however, Ontario’s robust transfer mechanism [13.1.02] – its availability to either party or the court of its own initiative and the grounds on which it is based – assure that the Ontario and Quebec’s geographic jurisdiction rules affect similar results.

Territorial Jurisdiction

“Real and substantial connection” test (as codified in QC law) In the absence of a special provision, QC

authorities have jurisdiction where the defendant is domiciled in QC [CCQ 3134, 3148(1)],

QC also has jurisdiction: D is legal person, has an establishment in QC

and dispute relates to activities in QC [3148(2)]

Fault in QC, injury in QC, K in QC [3148(3)] Choice of forum clause [3148(4)] D submits to jurisdiction [3148(5)] Re: consumer K see 3149

The plaintiff may, absent legislation requiring a particular venue [13.1.01], commence a proceeding where she wishes [13.1.01(2)].

The court has broad discretion to transfer the proceeding, on its own motion or a party’s motion [13.1.02]: (a) where it is satisfied that the proceeding not

be fair where commenced, or (b) where a transfer is in the interest of justice

with regard to: (i) Where the events giving rise to the

claim occurred (ii) Where damages were sustained (iii) Where the subject mater is/was located (iv) A local community’s interest in the

matter (v) The convenience of the parties,

witnesses, the court (vii) Any advantage or disadvantages of a

particular place w.r.t. securing the just, most expeditious, and least expensive determination of the proceeding on its merits.

(viii) Whether judges and court facilities available in other county

(ix) Any other relevant matter

Territorial Jurisdiction

“real and substantial connection” / Van Breda–Charron test” for determining jurisdiction: [ Van Breda ] The P raises a presumption of jurisdiction over a

claim in tort by establishing: (1) the D is domiciled or resident in the

province; (legal person = head office) (2) the D carries on business in the province;

Actual, not virtual presence: maintaining an office or visiting regularly, not just advertising or website.

(3) the tort was committed in the province (4) a K connected with the dispute was made in

the province. See case notes for how to add considerations to

list, factors NOT raising presumption of jurisdiction, etc.

The D may rebut the presumption by showing that it points to no or only weak relationship b/t the subject matter of the litigation and the forum.

Result : If the court concludes no jurisdiction, action dismissed. If jurisdiction established, claim

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Forum non conveniens (as codified in QC Law) QC authorities may, upon application of a party,

decline jurisdiction where satisfied another state authority is in a better position to decide the dispute [3135].

This is exceptional [Club Resorts v Van Breda] As CCQ does not provide factors, the test outlined

in Club Resorts still applies. [Club Resorts v Van Breda]

[Essentially confirmed by UNIDROIT Princ 2] ????

Choice of Forum Clauses

QC and CML courts generally respect choice of forum clauses [CCQ 3148; CML: ZI Pompey].

Courts should respect choice of forum clauses [in CVL, 3148 should be interpreted broadly] because they assure party a party autonomy and legal certainty in commercial transactions, fundamental principles in private international law. [GreCon; ZI Pompey]

Limitations on enforcement of these clauses In both jurisdictions, the parties must choose a

court with appropriate subject matter jurisdiction] In Quebec, choice of forum clauses not respected

for consumer and employment Ks (3149 CCQ); insurance Ks (3150 CCQ); and civil liability related to raw materials from QC (3151 CCQ) (see also GreCon). – That is, QC will exercise its jurisdiction where it has it regardless of what the K says.

proceeds… BC Court Jurisdiction and Proceedings Transfer

Act, s 3 roughly codifies this this test.

Forum non conveniens The D (not court of own motion), however, may

ask the court to exercise its discretion to stay the matter per forum non conveniens. The BoP is on the D. D must: (1) identify an alternate forum (2) demonstrate via the real and substantial

connection test that the alternate forum would be an appropriate one for the litigation

(3) demonstrate the alternate forum is “clearly more appropriate”, considering: a) the comparative convenience and

expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;

b) the law to be applied to issues in the proceeding;

c) the desirability of avoiding multiplicity of legal proceedings;

d) the desirability of avoiding conflicting decisions in different courts;

e) the enforcement of an eventual judgment; and

f) the fair and efficient working of the Canadian legal system as a whole. [s. 11(2)]

BC Court Jurisdiction and Proceedings Transfer Act, s 10 roughly codifies this this test.

[Essentially confirmed by UNIDROIT Princ 2] ????

Choice of Forum Clauses Generally, see CVL.

Limitations on enforcement of these clauses Strong Cause Test [CML: ZI Pompey ] : Where a P

sues in Canada in breach of a (valid) choice of forum clause which specifies a different forum, and where the defendant applies for a stay, the Canadian court must grant the stay unless the plaintiff shows sufficiently strong reasons to conclude that it would not be reasonable or just in the circumstances to require the plaintiff to adhere to the choice of forum clause. Consider: Is D just seeking procedural

advantage, or relevant connection to forum specified? Where is the evidence? What law applies? Fair trial for P in specified forum?

Inquiry is similar to forum non conveniens, but BoP is on P, not D.

US courts are more reluctant than Canadian ones to

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Enforcement of Foreign Judgments Process is to submit an originating application, etc.

[CCP 507] QC courts will enforce foreign decisions except

where: [CCQ 3155] The foreign authority had no jurisdiction [see

CCQ 3164, CCQ 3168, which are analogous to CCQ 3148]

The foreign decision is not enforceable where rendered

“The foreign decision was rendered in contravention of the fundamental principals of procedure”

The same dispute w/ same facts is before, or has been decided by, QC courts,

The outcome is “manifestly inconsistent with public order as understood in international relations”

Tax exception

disregard choice of form clauses. In Carnival Cruise Lines, SCotUS found that the fact that a P could not afford to sue in the specified forum was insufficient justification for an alternate forum. Reasons focused on the efficiency advantages of predictable forum. This is contra 3150 CCQ.

Enforcement of Foreign Judgments

The Morguard test (as expanded in Beals v Saldanhas to cover foreign judgments): Domestic courts should recognize and enforce the

judgments of foreign (other prov., territory, or country) courts as long as the foreign court had jurisdiction in the matter – that is, as long as it had a real and substantial (not fleeting or relatively unimportant) connection to either the subject matter of the action or the defendant.

Defense of natural justice: A domestic court should not recognize or enforce a foreign (or extra-provincial) judgment if the defendant in the foreign action proves that the foreign proceedings did not satisfy the requirements of fundamental justice (notice, right to be heard, etc).

Initial link to r 17.02, concerning service outside ON???

Subject Matter Jurisdiction

Subject Matter Jurisdiction over Civil Matters by $ Amount

Small Claims Provincial Superior (CA 1867, s. 96)QC Small claims division, CdQ

≤ $7,000 (now)≤ $15,000 (Jan 1 2016)CCP 536ff

$7,000-$70,000 (now)$15,000-$85,000 (Jan 1, 2016)CCP 35-39

>$70,000 (now)>$85,000 (Jan 1, 2016)CCP 33-35

ON Small Claims Court, a branch of the ONSC<$25,000ONCJA, s. 22-23

No civil matters!ONCJA, s 38

>$25,000.ONCJA, s. 11(Appeals under $50,000 go to divisional court.

Ontario’s Simplified Procedure (1) Small Claims: special rules apply where the amount claimed ≤ $25,000 (r 1.02(1); O Reg 626/00: Small

Claims Court Jurisdiction). These rules are set out in REG 258/98: Rules of the Small Claims Court. (2) Simplified Procedure (SP) mandatory where claim only involves money and/or property and ≤ $100,000

[76.02(1)] SP always optional. Will be in effect where P commences under SP and D does not object. A cross claim

> $100,000 can bump the case into OP [76.02(5)]. So can amended pleadings [76.02(6)] Class actions are never SP [76.01(1)(a)] Rules for SP are in 76.03 et seq (?)

(3) Ordinary Procedure (OP) where claim > $100,000

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! What’s different in simplified procedure? Time from defence filed to case set down for trial: 180 days in SP [76.09] vs 5 years for OP [???]. Discovery: SP: Affidavit of Documents within 10 days of close of pleadings, with documents and list of witnesses attached

[76.03]. Limited examination for discovery [76.04] OP: Discovery plan only due 60 days after close of pleadings [29.1] Settlement discussions: in SP, required within 60 days of first Statement of Defence [76.08]

Summary Trial-Available in simplified proceedings [76.12]. Essentially, an abbreviated trial. It may be imposed on the parties 76.10(6)-Summary trial uses affidavit evidence. It be used unless judge will be unable to make critical findings of fact or where it would be unjust to determine the issues. For potential injustice, s/he should consider: amount involved, complexity, any prejudice due to delay, and costs [Inspiration Management].

Distinguish from summary judgment [r 20] Summary judgment used where there is no merit or defence to claim [???] This was at issue in Hryniak. Plaintiff may move for this after defence, factums, then J decides if appropriate. Is appropriate if court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence

Federal Courts:

CA 1867 s 101: The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

See also CCP [8(3)] Concurrent original jurisdiction over actions against the crown [Federal Courts Act s 17] (Zolotow),

The FC and ONSC have concurrent jurisdiction over a CML action in detinue against the Federal Crown. In circumstances of concurrent jurisdiction, OCJA s 106 gives the motion judge discretion to determine the preferred forum. (Zolotow)

Concurrent original jurisdiction over actions where a remedy is sought under an act of Parliament [Federal Courts Act s 23]

Federal Court judicial jurisdiction is not co-extensive with Parliament’s legislative jurisdiction. The FCA has jurisdiction only if there is an applicable federal law. Quebec North Shore

In Quebec North Shore, there was a contract to build an interprovincial railway between Quebec and Ontario. It said that it was governed by Quebec law. But since it was an interprovincial undertaking, plaintiffs sued in the uncongested FC. The defendant objected that a law of Quebec was not a “law of Canada”.

Also Intellectual property, Intergovernmental disputes, maritime and shipping, bills of exchange, etc. [Federal Courts Act]

Other federal statutes may also provide for federal jurisdiction.

Superior (s96) Courts / Inherent Jurisdiction / Delegation

Sections 92(14) and 96-101 of CA 1867 impose a “compulsory co-operative federalism” (Hogg). While the provinces are responsible for the organization of superior courts, the federal government appoints, sets salaries for, and pays superior court judges.

Superior (s96) courts are courts of inherent ( 49 ) and residual ( 33 ) jurisdiction . Residual means that their jurisdiction covers all matters that have not, by legislation, been made the exclusive jurisdiction of another.

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Inherent means that they draw their authority not from any written constitutional provision but rather from the Common Law.

CA 1867 s 96 would be of no effect if provinces could, pursuant to CA 1867 s 92(14) create inferior courts or tribunals with jurisdiction equal to that of the superior courts, appoint their judges and set salaries. Therefore, s 96 implicitly limits the legislative branch’s ability to delegate to provincial courts or administrative tribunals powers within superior court jurisdiction.

A 3-part tests applies to determine whether or not a delegation of Superior Court jurisdiction to an inferior tribunal is constitutional under s96. (Residential Tenancies; Macmillan Bloedel)

(1) First, if the delegated power is distinct from the jurisdiction that superior courts exercised in 1867, it may be delegated.

(2) Second, if the delegated power is, as exercised in its institutional setting (the tribunal) non-juridical (administrative or legislative), it may be delegated.

Juridical power involves: (1) private dispute b/t parties, (2) the application of recognized rules (3) fairness and impartiality.

(3) Third, if the delegated adjudicative function is, as exercised in its institutional setting (the tribunal) subsidiary or incidental to a broader administrative function or policy goal of the tribunal, then it may be delegated.

In Macmillan Bloedel, Lamer found the delegation of the power to find a youth in contempt of court to a youth court incidental to the youth court’s broader policy goal to establish an age-appropriate venue for youth criminal justice.

In MacMillan Bloedel, the SCC ruled (Lamer for a 5-4 majority) that while Dickson’s 3-step test is sufficient to determine whether a superior court power may be concurrently delegated to an inferior tribunal, an additional step is required to determine whether the power may be exclusively delegated – that is, to determine whether the power could be removed from the superior court’s jurisdiction.

(4) If the delegated power lies within the core jurisdiction of the superior courts, it may only be concurrently delegated to an inferior tribunal.

Lamer found that the power to find a youth in contempt was a core power. Removing the Superior Court’s ability to enforce its on order would be tantamount to “abolishing the superior courts of general jurisdiction”.

Non Civil Matters / Misc

Provincial/territorial courts: most crim, much family, provincial (regulatory) offences. Special courts (municipal court -- [8(2)]) ONCJA, s 38ff

Superior courts: the rest of crim, etc. QCCA : Delineation of territorial jurisdiction for QCCA sitting at Montreal and at Quebec [40] “QCCA, QCSC and CdQ exercise their jurisdiction throughout the territory of Quebec” [8(1)] Supreme Court [8(3)]

Appellate Courts and their jurisdiction

Appeals: of right, with leave, etc.

Appeal of right from the CdQ or QCSC to the QCCA Civil matters where the value is >$60,000 (CCP 30) Many interlocutory injunctions, declaratory

judgments – See CCP 30 Where the right is provided by law: E.g. Family law

decisions (s. 21 Divorce Act).

Right of appeal with leave: (CCP 30) under $60,000; Judgments dismissing judicial application because

of abusive nature

Divisional Court (panel of 3 Superior Court judges sit in appellate capacity) ONCJA, s. 19).

Appeal of right for appeals below $50,000 Interlocutory orders from ONSC

ONCA ( ONCJA , s. 6(1)) . hears as of right for over $50,000. From divisional court (not Qs of fact only) with

leave.

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! denial of intervention (forced or voluntary) of third

party; certain judicial review; costs to punish substantial breach; confirmation or quashing of seizure before judgment; execution matters

Criteria by which leave is granted: if a judge of CoA considers the matter one where

leave should be granted, for example, b/c it involves a Q of principle, a new issue of law that has given rise to conflicting judicial decisions. (CCP 30)

Appeals to SCC SCC Appeals: see Supreme Court Act, ss. 35-43 37. Subject to sections 39 and 42, an appeal to the Supreme Court lies with leave of the highest court of final

resort in a province from a final judgment of that court where, in the opinion of that court, the question involved in the appeal is one that ought to be submitted to the Supreme Court for decision.

Appellate Standard of ReviewHousen v. Nikolaisen , 2002 SCC 33 (excerpt) Facts: Car accident. Municipality had posted no signs. Question of apportionment.Iacobucci and Major JJ (majority of 6) Standard of review for findings of law: correctness. Standard of review for findings of fact: palpable and overriding error. Standard of review for factual inferences: palpable and overriding error. Standard of review for questions of mixed law and fact: Generally findings of negligence are given deference.

However, if there is an application of an incorrect standard, failure to consider a required element of a legal test, or a similar error in principle, it is subject to correctness.

[Dissent (Bastarahe J): the assessment of legal facts through a legal test are also reviewable].

Pape & Adair , “Unreasonable Review: The Losing Party and the Palpable and Overriding Error Standard”, (2008) -The ‘overriding palpable error’ standard in Housen essentially precludes review if there is ‘some evidence’ on which the trial judge could have come to the finding.-This is unfair to the losing party. The better standard would be reasonableness which fills the gap between a de novo appeal and the ‘some evidence’ standard. Easier for losing party to then feel that justice has been done.-Reasonableness forces engagement of appellate courts w/o increasing appeals in unmanageably.

OtherMorissette , « Aspects historiques et analytiques de l’appel en matière civile », (2014) -Differences between QC and French appeals. QC is clearly based in anglo-American tradition.-Trick is how to avoid doing everything over again but still correcting lower courts.-France: appeals de novo (juries on appeal); rehear questions of fact; less welcoming to new questions of law; less adversarial system makes trial more compact.See UNIDROIT Principle 27: New facts and evidence only in the interests of justice (compromise).

Discovery: Additional Issues

Confidentiality Deemed undertaking : “Parties & lawyers are deemed to undertake not to use evidence or information [acquired

via discovery] for any purposes other than those of the proceeding in which the evidence was obtained” [30.1.01(3)]

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! Purpose: Privacy, to assure that disclosure actually occurs [Lac d’amiante; Juman]

Exceptions/Limitations : evidence that is filed with the court or given during a hearing, [30.1.01(5)] Automatic exception w/o leave (can call police) where there is immediate and serious danger [Juman] Court may make exceptions (and impose conditions) if the “interest of justice outweighs any prejudice that

would result to a party who disclosed evidence” [30.1.01(8)] – The applicant bears, the BoP on the balance of probabilities

There is no automatic exception if discovery reveals suspected criminal activity. Party wishing to call the police must apply to the court. [Juman]

Quebec : The deemed undertaking applies in QC too, but not just b/c discovery is inherited from CML. CCP is an all-encompassing statement of procedural rules, so must rely on it and the CCQ. [Lac d’Amiante]. Open court principle [oCCP 13 nCCP 11] Right to privacy: CCQ 3, 35-37, QC Charter 5 Good faith CCQ 6; Abuse of Right CCQ 7 Inherent jurisdiction [nCCP 49], but it does not include the ability to articulate novel procedural rules.

Open court principle, only covers court processes, and therefore does not cover discovery, not withstanding resemblance of discovery to court processes, and history that it once was a court process. Purpose of open court principle is, after all, to keep judges accountable. All of this, especially considering the considerable importance QC CVL places on privacy [Lac d’Amiante].

Purposes of discovery Access to justice – levels the playing field, eliminating informational imbalance b/t parties – an “exploratory”

purpose [Lac d’Amiante] Facilitates the trial – narrows issues and reduces necessary court resources.

Often leads to admissions, “oh yeah, I admit that,” there goes 3 hours of trial and 2 witnesses. Encourages Settlement

Enables parties to assess the strengths and weaknesses of each side’s case, including credibility. Encourages cooperation/collegiality : Each party is forced to help the other party discover its case

CML v CVL v USA Discovery is inextricably linked to role of judge/parties. In other CVL inquisitorial systems, there is no

discovery, b/c judge’s role is to elicit and insist on disclosure [Hazard]. We see here the influence of CML on QC CVL.

In ON, the affidavit of documents must include everything that is relevant [30.02(1); 30.03]. In QC, parties only disclose the evidence what they wish to use, although, pre-trial disclosure often results in additional discovery.

Scope much broader in USA: a question is allowed if it “reasonably calculated to lead to admissible evidence”. Also no time limits in USA [Hazard].

Special Issues with e-discovery Rules of disclosure and discovery of documents applies to electronic documents [Sedona Principles, also

“document” includes electronic documents 31.01.1(a)] Sedona Principles provide guidelines for e-discovery, ON Rules parties, in the drafting of a discovery plan, to

“consult and have regard to” them [21.1.03(4)] For example, looking for and recovering deleted documents is not generally required [Sedona Principles]

However, Cost: the very large volume often increases costs. Complexity: New and complex headaches for courts to decide with documents in multiple places, documents

in multiple versions, etc. Confidentiality: more difficult

Is leading to outsourcing.

Fraser on DiscoveryDiscovery (theory and generalities)-Discovery is linked to the role of judge. Thus it’s integral in the party-driven adversarial CML model. But it doesn’t exist in most CVL jurisdictions where the judge’s role is linked to getting evidence [Hazard].

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David Suk’s JICP Summary, Professor Jukier, Winter 2015 – Drop me a line if this has been helpful! -US: taken as of right. Only limit: that which can be ‘reasonably calculated to lead to admissible evidence.’ Protected in Société (SCOTUS) as constitutional right overriding international treaty [Hazard].-Purpose: access to justice; efficient use of court resources; encourage settlement.-But it can end up being a major cost in the case, so there are LIMITS (below) [229; 76.04(2), 31.05.1(1)]

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Purposes and Reform of Civil...

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