LAW 313 Civil Procedure: Drafting

LAW 313 | civil procedure: drafting final outline | 2013-2014

John Bullock Hanna Davis

As taught by Professor Rod Hayley Civil Procedure: Drafting

TABLE OF CONTENTS

2 Civil Procedure: Drafting

CIVIL LITIGATION IN CONTEXT

THE ADVERSARY SYSTEM

THE ADVERSARY SYSTEM – SIR JACK I.H. JACOB

 Fundamental characteristic feature of English civil justice is the adversary system.

 The traditional, cardinal basis for the conduct of civil procedure since the middle 13th c.

 Not created by statute or implanted as a doctrinal choice, but grew and developed naturally.

. Responded to social, political and cultural needs of people.

 Other system that came about was “inquisitorial” system.

. In both systems there is a division of functions between the Court and the parties.

. Opposite functions in the inquisitorial system, court was much more involved in process.

 Very active, authoritative and interventionist role.

 Role of the Court

. Looking at judges, what role do they play?

A. Man of science, carrying out research in lab and using all methods for the solution of problems and the discovery of truth?

B. Or umpire in English games – doesn’t invent tests for the powers of the two sides, merely there to see the rules of the game are observed?

. Much closer to the second one – judges sit in court not to discover the truth, but to be able to answer the question “how’s that?”.

 In exceptional cases, the court will intervene if there is a duty to, or if it is empowered to act of its own motion to discover the truth.

 In short, the English court takes no active part in the initiation, conduct, preparation or presentation of a civil case before or at the trial or on appeal.

. At all stages of the proceedings before or at the trial or on appeal, at the actual trial or hearing, the English court plays a dominating, positive and interventionist role.

 The passive role of the court greatly enhances the standing, influence and authority of the judiciary at all levels and may account for the high respect and esteem in which they are held.

 Role of the Parties

 Party Control – under this principle, but subject to compliance with the rules, practices and orders of the court, and so far as the lawyers are concerned subject to their duties and responsibilities as officers of the court and obligations to disciplinary code of professional bodies.

. Can agree to extend time limits.

. Free by their pleadings, etc., to delimit the issues or questions of fact or law, which they desire the court to determine and court is bound to decide only those.

. Also entitled, within the limits of professional propriety, to take advantage of any weaknesses or mistakes of the opposite party.

 “In litigation as in war. If one side makes a mistake, the other can take advantage of it. No holds are barred.” – Lord Denning

 Under this system, there is room for the employment of surprise and technicalities as weapons in the conduct of litigation.

 In general, it is contrary to professional usage for lawyers of either party to inform/alert the lawyer of the opposite party that they may be committing a fatal error.

 In conflict with ethical rules in code of conduct? Pirie would not approve.

 Party Prosecution – Parties may move a case forward rapidly/slowly.

. Though if there is prolonged and inexcusable delay beyond applicable limitation period that is prejudicial to the defendant the action may be dismissed for want of prosecution.

 Party Autonomy – Parties are entitled at all stages of the proceedings to settle their cases on any terms they choose without approval of the court.

. Not applicable for claims on behalf of minors or mental patients.

 It is the duty and responsibility of the lawyers of the parties, both of the solicitor who is employed by the litigant whose main responsibilities are to initiate and prepare the case and of the barrister who is engaged by the solicitor and whose main responsibilities are to present and conduct the case at the stages of pre-trial and trial and on appeal, to ensure that the case of the client is fully and effectively begun or defended and framed, prepared and presented. 4 Civil Procedure: Drafting

 Failings and Changes

 Though adversarial and a battle of wits, the system is highly regarded and commended.

. Serves as a framework for the functioning of the fundamental principles of English civil justice.

. Conforms to English cultural values and character of fair play and independence.

 Regardless of positive aspects, still many failings:

. Since lawyers pick what procedural steps are to be taken, things can be missed.

. May create avoidable delays and increases the labour and costs.

. Introduces an element of gamesmanship into proceedings.

 Increases propensity for lawyers to attack on technicalities/technical manoeuvres.

. Accentuates the disparity in terms of resources and legal advice/representation between parties.

. Some lawyers aren’t as good as others, while some aren’t even competent.

THE JUDGE AND THE ADVERSARY SYSTEM – NEIL BROOKS

 Party Autonomy

 Limits judge’s function to disputes, which have been presented to him.

. Only plays a role when a conflict has arisen between two parties and one seeks assistance.

 “A judge of an organised body is a man appointed by that body to determine duties and the corresponding rights upon the application of persons claiming those rights.” – John Chipman Grey

. Parties have the sole responsibility for defining the dispute that they would like adjudicated.

 Judge may not insist on resolving another matter even though be believes that issue to be the real cause of the conflict.

. Aspects are subject to limitations.

 Judge may not initiate proceedings, but can prevent certain ones from happening.

 May prevent using litigation process to resolve hypothetical or moot problems.

 May take judicial notice of certain facts.

 The system serves itself, in that the “social interest in securing general observance of the rules of private law is sufficiently served by leaving their enforcement to the self-interest of the parties more or less affected”.

 Party Prosecution

 Judge’s role is to passively evaluate the merits of the case as and when it is presented to him.

 This principle rests upon two assumptions:

. Legitimacy of adjudication as a means of social ordering is enhanced if it is conducted according to an adversarial presentation.

. More accurate fact-finding is likely to result if parties motivated by self-interest are given the responsibilities of investigating facts and presenting arguments, and if the decision-maker remains passive.

 Adversary System Increases the Acceptability of Adjudication

 Every means of social ordering used by the state must be acceptable not only to those immediately affected by its particular sanctions but also to all those governed by the state.

. A need for legitimacy in a free society, since a judge’s decision may be seen as undemocratic.

 Four reasons why adversarial system is most acceptable method for fact-finding:

 Relationship to the Prevalent Political and Economic Theory

. If you believe that the individual is the important unit of our society and the state exists to serve the individual, then the adversary system is preferable.

. System legitimises a self-interest role for the parties.

. In liberal state, adversary system can be viewed as a means of decentralising power, and as an attempt to prevent abuses of political power.

 Cathartic Effect

. Adversary system satisfies the psychology of the litigants by legitimising a courtroom deal.

 Sublimation of more direct forms of hostile aggression.

. Fact that it’s a “game”, may explain why it is accepted when a party loses on a “technicality”.

 True facts may be less important than how well the parties play the game?

 Role of Counsel

. Inquisitorial aspect is played by counsel.

 Supposed that parties prefer their counsel having the same interests as themselves, and will share in defeat.

 Appearance of Impartiality

. Gives tribunal appearance of impartiality.

. The possible appearance of impartiality is a matter judges must consider when intervening.

 If a witness appears evasive in answering, judge must not appear hostile.

INCREASED ACCURACY OF FACT FINDING

 Much better fact-finding mechanism than inquisitorial system.

 Given all the interests at play, much more likely to get factual judgments about past events with adversary system.

 More thorough investigation.

 Trier of fact more likely to reach the correct decision because during the proceedings he will not acquire a bias towards one conclusion or the other.

 Better able to remain completely disinterested in the outcome until all the proof has been elicited and arguments made.

 Parties motivated by self-interest are likely to be most diligent in presenting and critically evaluating all of the evidence

 Rules of procedure and conduct are in place to ensure the following factors:

. Parties are initially motivated to seek out all evidence

. Parties will sustain their motivation

 Solicitor-client privilege prevents one side from demanding disclosure of the other litigant’s trial briefs, witness statements and other materials that have been collected for use in litigation.

 This precludes the temptation for one side to depend on the other to do the investigations.

. Parties have equal capacity, skill and resources

 System encourages parties to take a self-interested role.

 However, little a judge can do to prevent the parties from suppressing or falsifying evidence.

 Lawyer is there as an in-between with a duty to both client and the process

. Parties will be given opportunity to test adverse evidence

 Assumes adversary cross-examination is superior to dispassionate inquisitorial examination.

. All Interests affected are represented

COUNTERACTS BIAS IN DECISION-MAKING

 Allows the judge to remain unbiased as between the parties throughout the proceedings.

 As opposed to other contexts, in this situation bias means being personally interested in the outcome of a case.

 Could be argued that if a judge takes an active role in proof-taking, he may acquire a bias towards one party or the other for following reasons:

i. If judge questions a witness and witness is evasive, disrespectful or hostile, judge may become antagonistic and discredit the testimony.

ii. If responsible for having some important evidence revealed, judge may award too much weight.

iii. May become too concerned with one detail, allowing balance of evidence to escape attention.

iv. May become biased to information reviewed before the trial, before it is actually presented.

v. Adversary system is un-biasing because it counteracts what psychologists call “decision- maker bias”.

 Occurs when a decision-maker investigates the facts upon which decision will be based.

ADVERSARIAL VS. INQUISITORIAL SYSTEMS OF ADJUDICATION

 J.H. Langbein “The German Advantage in Civil Procedure”

 Criticisms of lawyer-dominated system of civil procedure include: . Systemic incentives to distort evidence  leaves to partisans the work of gathering and producing the factual material upon which the adjudication depends . Expense and complexity of discovery and trial procedures  Langbein argues that the German model avoids these problems by having judges rather than lawyers investigate the facts  Two fundamental differences between German and Anglo-American civil procedure: . Court, rather than lawyers, takes the main responsibility for gathering and sifting evidence . No distinction between the trial and pretrial  court gathers and evaluates evidence over a series of hearings  Steps of German Procedure: . Initiation: P’s lawyer commences lawsuit with complaint; including key facts, legal theory and requested remedy; also proposes means of proof for factual contentions; main documents usually appended; BUT lawyer will not go “digging” for additional facts beyond those known to client . Judicial Preparation: judge examines pleadings and documents; sends for relevant public records; begins to create official dossier; judge will schedule hearing and notify lawyers . Hearing: dictated by specific circumstances of case; judge may encourage parties to reach compromise OR, if contentious, sequence for examining Ws is set . Examining and recording: judges act as the examiner-in-chief; counsel for parties MAY pose additional Qs but not prominent examiners; W testimony seldom recorded verbatim; judge dictates summary . Expertise: the court – in consultation with counsel- will select expert if necessary and define his role . Further contributions of counsel: counsel have opportunity to comment orally or in writing after any “infusion of evidence”; may suggest further proofs or advance legal theories (merges pre-trial discovery and evidence-presenting function of our trial) . Judgment: written judgment of judge  Most important consequence is that German procedure functions w/o the sequence rules of Anglo-American procedure . Concepts of “Plaintiff’s case” and “defendant’s case” are unknown . Court investigates the dispute in the fashion most likely to narrow the inquiry  counsel guide the search by directing court’s attention to certain lines of inquiry etc  Implications: . A defensive issue that may only surface following full pretrial and trial ventilation of the whole of the P’s case in Anglo-American tradition can be brought to the fore in German procedure . Episodic nature of fact-gathering largely eliminates danger of surprise . B/c court establishes sequence of fact gathering according to relevance, unnecessary investigation is minimized

. Also lessens tensions and theatrics and encourages settlement  more like a business meeting than a performance  Witnesses: . In adversarial system, “the partisan nature of trials tends to make partisans of the witnesses” (Jerome Frank)  Cross-examination is too often ineffective at undoing the consequences of partisan coaching and may even lead to fresh distortion . In German system, lawyers will nominate Ws but NEVER have occasion for out-of-court contact with W  Experts: . In adversarial system, there is a “battle of the experts” whereby experts are party-selected and party-paid  invites abusive cross-examination  leads to systemic distrust and devaluation of expertise . In Continental tradition, responsibility for selecting and informing experts is placed on the courts; written report circulated to litigants who may file written comments; court also has power to order further report if necessary (and litigant may encourage court to invoke this power)  SO: expertise is kept impartial BUT litigants protected against error/caprice through a variety of opportunities for consultation, confrontation or rebuttal  Outside realm of fact-finding, German system about as adversarial as their own  Risks of an Inquisitorial system? . Risk of prejudgment: argument that in a non-adversarial setting, pattern will emerge from evidence early on, inviting premature judgment without investigating further proofs  Langbein says: this misunderstands German system which continues to combine judicial fact-gathering with adversarial efforts in nominating lines of factual inquiry and analysing issues  helps to hold the decision in suspension until all relevant facts and issues explored. . Lack of depth: argument that non-adversarial system does less fact-gathering  Langbein says: while German system may do less fact-gathering this is simply because the system lends itself to narrowing the inquiry, eliminating waste. . No judicial incentive to conduct strong fact-gathering: argument that in non-adversarial system, responsibility for fact gathering does not align with incentive so job may not be well done  Langbein says: simply need to design judicial career in a fashion that creates incentives for diligence and excellence; e.g.: career judiciary where profession of judging is separate from profession of lawyering  Remodeling of civil procedure is intimately connected to improvement in the selection of judges.

THE STRUCTURE AND PURPOSE OF CIVIL PROCEDURE – GARRY WATSON, 1996

 Two different ways of viewing civil procedure – both functional:

 Historical Perspective

 Argument: Characteristics of the trial/form of adjudication have conditioned the procedural devices that come earlier in the process

 19th century, all civil actions tried by jury; “oral, continuous trials” 10 Civil Procedure: Drafting

 Orality:

. Purpose: better enable fact-finder to evaluate evidence

. Consequence: immediacy; production of evidence and receipt by ToF happens simultaneously

 Continuous: no adjournments, even if taken by surprise by evidence

 Modern civil procedure shaped by this model

 If oral, continuous trial is to be fair, parties need to know in advance what evidence is going to be adduced at trial

 Pre-Trial procedures designed to avoid surprise at trial “scripting in advance” (eg. pleadings, discovery)

 Other characteristics of trial have also structured our civil procedure

 CL allows for provisional remedies before ruling is made

. Notice of motion

 If there are no facts in dispute, we do not need a trial

. Because purpose of trial is to hear oral evidence & resolve disputes about facts

. Motion for summary judgment

 If claim or defence is legally invalid, we do not need a trial

. Dismiss action as “failing to state reasonable cause of action”

 2. Due Process Perspective

 Argument: Rules of civil procedure are structured by what is required so that adjudication is fair to both parties

 No CL or constitutional doctrine that says rules of procedure in court proceedings must be fair (“property” not included in s. 7 guarantee of fundamental justice)

 Have typically addressed issues of fairness legislatively, through subordinate legislation (rules of civpro), typically go beyond minimal level of due process/natural justice

 Ingredients of fairness include:

. Notice

. Opposing party must be served

. Right to be heard

. Decision maker will be impartial and not biased

. Timely notice of any relevant step in the proceeding

. Party has opportunity to participate

. Right to reasoned decisions and reasons

. Right to appeal

. Right not to be dragged through discovery and trial where no genuine issue

 Civil procedure provides maximal fairness

GUEST SPEAKER – KIERAN BRIDGE

 There is always more than one way to conduct a case

 Litigation should be a goal-oriented process

 Need to clearly identify the issues and parties to the dispute  important to get all parties named as quickly as possible

 What court or arbitration process is the best one to use?

 Sometimes no choice, K will stipulate form process must take

 Consider what type of court you need to go to to get the relief sought

 Logistics: eg. where are the Ws, experts, docs

 Would one jurisdiction be more favourable?

 For declaratory judgment must go to a superior court

 If dispute involves federal agency, must go to federal court

 Limitations on what types of cases small claims courts can hear

. Can have significant precedential value

. Not the same discovery processes (no oral exam for discovery, no cost awards) 12 Civil Procedure: Drafting

. If you go to Superior court but award <25K may be denied costs b/c should have gone to small claims

 Arbitration

 Often in K, but can also take place by agreement

 Usually faster, less expensive and can choose arbitrator (minimizes uncertainty)

 Getting a case started: Petition and Action

 Action involves filing a notice of civil claim; key features are document discovery and oral discovery

 Rule 2-1 outlines issues that you can put before the court by petition  usually used in cases where essential facts not hugely contested

. Petitions usually faster and less expensive

. No full discovery rights on petition

CLASS DISCUSSIONS

WHY HAVE RULES OF COURT?

 Efficiency

 Certainty/avoidance of surprise

 Fairness

KEY FEATURES OF NEW RULES

 Proportionality – “don’t need a sledgehammer to kill butterfly”

 Want to avoid parties using procedure in unfair way, esp. Ds

 Replaced old writ of summons with notice of civil claim/pleadings

 Case planning conference now available upon request

 New limits on discovery (presumption of 7 hours)  access to justice and expediency concerns

 Emphasis on impartiality of experts  role to assist court NOT act as advocates

 Fast-track litigation for cases under $100, 000

 Trial management conferences

WAYS TO SHORTEN PROCEEDINGS

 Treat discovery seriously  can get admissions that decide the case at this stage

 Mediation  more control over mediation than trial

 Summary judgment  where no reasonable cause of action; less used in BC due to summary trial

 Summary trial  based on affidavit rather than viva voce evidence

 Striking pleadings  must be no reasonable prospect of success (Imperial Tobacco)

INTERVIEWING PLAINTIFF

 Client verification

 Conflict of interest check

 Get the story  is there a legal cause of action, do the facts make out the case?

 What is the P seeking to accomplish? Is there another way to resolve the problem outside of litigation?

 What remedy is the P seeking? Injunctive relief, declaration, remedy etc

 Consider limitation periods

 Consider financial agreement

INTERVIEWING DEFENDANT

 Why are they there?

 What defences could be raised on the facts?

 Who is really responsible? Are there other parties who should be brought into litigation?

 Indemnification

 Consider limitation periods

RULE 1-3 - OBJECT OF SUPREME COURT CIVIL RULES (SCCR)

 (1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits

 (2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

 The amount involved in the proceeding

 The importance of the issues in dispute, and

 The complexity of the proceeding

STAGES OF CIVIL PROCEEDING

(May Refer to Flowchart pp. 84-85)

 1. Considerations Before Commencing Litigation  Litigation is expensive, time consuming and uncertain  Explore possibility of settlement; litigation as last resort  Decision to sue influenced by many factors: . Does the client have a reasonable prospect of winning the action?  Is there a reasonable cause of action?  Do the probabilities favour the client’s version of the facts? . What are the financial consequences of winning or losing? . Does the Defendant have the ability to satisfy the judgment?  2. Selecting the Appropriate Court  In Canada, general courts of civil jurisdiction  Which court has the jurisdiction over the subject matter of the case?  Are there any limits on the jurisdiction of the courts to award remedies?  3. Commencing the Proceeding: Actions  In BC, action commenced by issuing a writ of summons . Names the Ps and Ds . Gives Ds notice that action has commenced . Provides directions on steps Ds must take  Advantages . May be only formal court document required . Drafting an endorsement – concise statement of nature of claim and relief required – on this form is less complicated than drafting a statement of claim . Can be prepared and filed quickly  In ON and other jurisdictions, action commenced by statement of claim . If urgent, file notice of action  statement of claim

. Contains description of parties  “title of proceeding” . P must serve copy to D by personal service or substituted service if unable to locate D . Contains formal notice to D and steps to be taken . Some courts have rules simplifying procedures where small amounts of money involved  4. Commencing the Proceeding: Applications  Generally used with respect to matters where it is unlikely that there will be any material fact in dispute that requires oral evidence  Use written evidence  affidavits  5. Asserting Claims and Defences: Pleadings  Pleadings give notice to parties and serve to define issues in the case  Statement of claim should contain summary of facts to be relied upon in support of case and statement of relief sought – does NOT include evidence by which P expects to be able to prove facts  D must file statement of defence to avoid default judgment  P may respond by delivering a reply  D may assert: . Counterclaim against the P . Cross-claim or 3P claim against co-defendant or 3P  P and D can produce evidence ONLY with regard to allegations set forth in pleadings . If either party seeks to prove fact no alleged in pleadings  variance . Parties may request permission to amend pleadings  6. Obtaining Information Before Trial: Discovery  Each party is entitled to go to trial knowing the case to be met – pleadings achieve only part of this goal  Parties obtain discovery of documents from one another by disclosing under oath, by means of an affidavit of documents, all documents now, or previously, in their possession pertaining to the action  Right to conduct an oral examination for discovery of a rep of the other party. . Qs and As transcribed and may be used at trial for purposes of impeachment  Other discovery devices include: . Orders to inspect property . Orders requiring parties claiming personal injuries to submit to medical exam  7. Disposition Without Trial  Possibility of settlement  D can ask court to dismiss action is no reasonable cause of action  P can ask court for judgment if statement of defence does not raise any matter that could in law amount to defence  Where facts not in dispute, parties can agree to place a QOL before the court  Summary judgment where one party can demonstrate that there is no triable issue in case  BC - Summary trial under rule 18A based only on written materials . Inspiration Management v McDermid St Lawrence Ltd (1989, BCCA)  Default judgment where D fails to deliver statement of defence  8. Case Management and ADR  Case management: . Responsibility for pace of litigation on the court . Involves establishing firm time limits for procedures and court enforcement . Case management conferences – court sets schedule for pre-trial stages of litigation and monitors proceedings to ensure compliance . Judicial Dispute Resolution (JDR) – judges act as facilitators or mediators to assist parties in resolving dispute w/o trial 16 Civil Procedure: Drafting

 ADR: . Mediation: 3P mediator assists parties to negotiate settlement; BC increasingly integrating mediation into various stages of litigation . Arbitration: parties refer dispute to one or more arbitrators by whose decision they agree to be bound . Conciliation: parties use a conciliator, who meets with the parties separately in an attempt to resolve their differences.  Differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award.  Differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions  9. Setting Down the Case for Trial  After pleadings are completed and P has conducted pre-trial discovery and brought any necessary interlocutory motions, P puts case on the list for trial and parties then wait for case to be called by court.  10. Mode of Trial  Two methods: . By judge alone . By judge sitting with a jury  In most actions, either party entitled to have case tried by jury  After commencement of trial, parties must select members of the jury . May challenge for cause: request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror . May exercise peremptory challenges: right to reject certain number of potential jurors w/o stating a reason  However, in Canada most civil actions tried by judge alone  11. The Trial  P’s lawyer makes opening statement  Examination in chief of witnesses  Cross-examination of witnesses  Witness may be re-examined  Rules of evidence apply with regard to testimony permitted at trial . Lawyer may object to admissibility of certain evidence  After P’s lawyer has called all Ws, Ps case is closed  D may argue P has failed to adduce sufficient evidence to establish case through application for non-suit  Where D does not move for non-suit, or has moved for non-suit but elects to call evidence, D presents case  P allowed to meet any issues raised by D by calling evidence in reply (restricted to new issues introduced by D)  Counsel for the parties address the jury . P has burden of persuading the jury

 TJ delivers charge to jury on law they must apply to facts  One or more of the parties may object to the charge  Judge will usually render judgment in conformity with jury’s answers BUT may also give judgment notwithstanding verdict of the jury where there was no evidence on which the jury, acting reasonably, could have reached its verdict  12. The Judgment, Enforcement and Effect  Judgment of the court is the final determination of lawsuit, subject to appeal  May be award for money, declaration of rights, order of specific performance etc.  Burden on P to collect $ . Writ of execution from the court commanding one of its officers to seize D’s property . Where P’s recovery takes form of an order, may apply to have D found in contempt of court  Costs usually awarded to successful party who prepares bill of costs  Dispute said to be res judicata, a thing decided, and cannot be re-litigated  13. Right of Appeal and Motions  Appeals: . Right of appeal in almost every case; exercised by filing notice of appeal . CA can affirm the decision, reverse it or vary it  May substitute new decision or order new trial . Appeals often based on:  Errors of law  Admissibility of evidence . Usually argued on basis of transcript of evidence of witnesses taken at trial  Motions: . A written or oral application made to a court or judge to obtain a ruling or order directing that some act be done in favour of the applicant. . Frequently relate to pleadings or to discovery

ETHICAL CONSIDERATIONS

CLASS DISCUSSION – ETHICAL DILEMMAS IN THE LAW

 Simply doing what is best for your client not always the right things to do

 Adversarial system must be subject to more ethical constraints than simply the stated rules  simply following the rules does not = ethical conduct

THE ETHICS OF LAWYERING

 Two central features of legal profession

 Self-regulation

 (Near) monopoly of services

 Models and Critiques of Professional Ethics

 Dominant Model: Lawyers as “zealous advocates”, “neutral partisans”

. exclusive professional interests = interests of clients

 Alternative Models: “moral lawyering”, “sustainable professionalism” etc.

ROB ATKINSON, “HOW THE BUTLER WAS MADE TO DO IT: THE PERVERTED PROFESSIONALISM OF THE REMAINS OF THE DAY”

 Should a professional always do all that the law allows, or should the professional recognize other constraints?

 “Neutral partisanship”: ultimate decision in matters of morality are client’s to make; professional’s job essentially technical; lawyering as an ethical good b/c facilitates client’s exercise of moral autonomy; layer’s role to client where the limits or autonomy are (outer limits of the law)

 “Moral Activism”: lawyers cannot claim moral absolution for unquestioningly assisting clients in unjust acts; must act affirmatively to promote justice; additional limits of ordinary morality, duty to promote justice, beliefs of communities

 Both approaches divide on the ultimate decision BUT agree that there is a need to avoid moral isolationism, raise moral concerns with client and/or others

KENNEDY, “THE RESPONSIBILITY OF LAWYERS FOR THE JUSTICE OF THEIR CAUSES”

 Lawyers must avoid doing harm with their legal skills

 If you think outcome of winning for your client would be on balance a bad thing/detriment to community, you should decline to participate

 Lawyering is not neutral; lawyers mould the law with legal arguments

 If lawyers took choice of clients seriously, would influence distribution of legal services

 Overall pattern would be better than that created by free market understanding of lawyering

C. HUTCHINSON, “LEGAL ETHICS FOR A FRAGMENTED SOCIETY: BETWEEN PROFESSIONAL AND PERSONAL”

 An exclusive concentration on rules of professional conduct is misplaced – cannot relieve lawyers of responsibility to exercise own professional and moral judgment

 Legal ethics not a fixed code of conduct but a continuing practice of constructing acceptable norms of behaviour

 Acting ethically is about the development of a moral way of living and lawyering – life-long challenge primary concerned with interrogation/learning about oneself

 Legal ethics is NOT something that arises in discrete and exceptional circumstances – ethics implicated in everything a lawyer does

JUSTICE ROSALIE ABELLA, “PROFESSIONALISM REVISITED”

 Three basic values merge in a good lawyer: a commitment to competence, a commitment to ethics and a commitment to professionalism

 Consensus about what it means to be a professional has broken down

 Professionalism is more than about being a lawyer, it is about why we are lawyers

 Two obstacles to the ideal professional environment: economic pressures and misplaced preoccupation with process

 Law Society must: prioritize diversity/accommodation in law firms; foster a professional culture that keeps idealism alive; take a leadership role in addressing critiques/encouraging dialogue; redefine success in the profession

CONSTANCE BACKHOUSE, “GENDER AND RACE IN THE CONSTRUCTION OF ‘LEGAL PROFESSIONALISM’: HISTORICAL PERSPECTIVES”

 Norms of legal profession historically framed around notions of masculinity, white supremacy, and class privilege

 Concepts of professionalism, civility, community and collegiality have been imbued with discriminatory intent and practice

 The homogenous nature of the profession and its resistance to diversification have serious implications for the services lawyers offer, arguments we make and the decisions of judges

 Will move forward from history of exclusion more quickly if focus on different ideals such as anti-racism, gender equality, respect for Aboriginality, religious tolerance, reduction in wealth disparity and social justice

TREVOR C.W. FARROW, “SUSTAINABLE PROFESSIONALISM”

 Dominant model fails to consider other important people/interests other than the client, but alternative models of the “good lawyer” seen to be unrealistic in practice

 Theory of sustainable professionalism addresses this gridlock by taking seriously the complex/pluralistic landscape in which lawyers operate: need to consider client interests, lawyer interests, ethical and professional interests and the public interest

COMMENCING CIVIL PROCEEDINGS

COURTS AND TRIBUNALS

 The History of the Courts and Civil Procedure in Canada

 Evolution of Canada’s court system began with Constitution Act, 1791

 Period of CL pleading and procedure (late 1700s to mid 1800s)

. Canadian court system suffered under system of multiple courts, division of admin law and equity, different procedures at law and chancery governed by non-statutory rules

. Upper Canada: Court of King’s Bench as court of original and essentially unlimited jurisdiction

 District courts for “cognizance of small causes”

 No general appellate court

 No court of equitable jurisdiction

 1837 establishment of separate Court of Chancery

. Period of code-pleading and procedure: Mid to late 1800s reforms to unify court system (merge CL courts and courts of equity) and codify court procedure

LIMITATION OF ACTIONS

THE PURPOSE AND OPERATION OF LIMITATION PERIODS

 Limitation periods define the time limits within which a potential litigant must commence a civil action

 Attempt to strike a balance between rights of Ps and Ds

 Provide some degree of finality/closure to potential Ds; define temporal period when they no longer need to worry about prior obligations/liabilities

 Ensure cases do not proceed on the basis of stale evidence

 General default limitation periods outlined in Provincial limitation statutes

 BC Limitation Act

 Most provincial statutes specify period of 2 years for most common types of actions

 Triggering event may differ from claim to claim

 Specific claims not subject to limitation period

 E.g. fraud or sexual assault

 Special limitations provisions in other topical statutes override general default rules

 E.g. special rules in insurance legislation

 Some statutes, usually involving gvt entities, have two limitation periods. Why? Sheer volume of claims and need to act in public interest/resolve disputes quickly:

 Require notice within short time period, then

 Final limitation period

 Up to D to plead limitation periods as D; usually by motion before trial

CLASS DISCUSSION – NEW BC LIMITATION ACT

 Came into force June 1, 2013

 Governs how long a person has to bring civil action if no other statute contains applicable time limit

 Basic limitation period of 2 years for all civil claims (under old Act limitation periods were either 2, 6 or 10 years depending on cause of action)

 Time period starts to run once P “discovers” claim (contrast old accrual method)

 Exceptions:

. Court proceedings to enforce or sue on a judgment for payment of money or return of personal property – 10 years

. Where limitation period in other statute

. New exceptions: All declarations and judicial review proceedings, prosecution of offences under the Offence Act and claims based on existing aboriginal and treaty rights – no limitation period

 The running of time for basic limitation period can be postponed, suspended and reset:

 Commencement postponed: minors, and persons under disability

 Running of time suspended: if becomes person under disability

 Clock reset: liability is acknowledged

 Ultimate limitation period of 15 years for all civil claims (30 years under old Act)

 Commencement based on “act or omission” instead of when all elements of claim accrue

 Clock is not continuous: can be postponed, suspended and reset in certain circumstances (eg. adult disability, acknowledgements and willful concealment)

 Brings BC more in line with other provinces that have basic 2 year limitation period  predicated on Uniform Law Conference of Canada

 CL continues to govern in determining if parties can K out of limitation period  more likely to be upheld in cases involving sophisticated commercial parties

 Old Act  cause of action was extinguished when limitation period expired. New Act cause of action not extinguished, but when limitation period on claim has expired then cannot bring claim in court AND not entitled to exercise any non-judicial remedies (= remedy that person is entitled, by law of K, to exercise w/o court proceedings)

 Note: no limitation period to bring a claim “related to or connected with” a claim that has already been brought within the basic and ultimate limitation periods

 It is the court’s discretion to allow or disallow a related claim to proceed and to allow amendments of pleadings after limitation periods

 Transition Provisions

 Only apply if both

. Act or omission occurred before June 1, 2013

. No court proceeding has been commenced before June 1. 2013

 Otherwise if act or omission occurred on or after june 1, 2013  new Act applies in its entirety

. Or, if act or omission occurred before june 1, 2013; and a court proceeding has already been commence before that date  former act applies in its entirety

 Transition Provisions – if applicable

 Claims that are out of time before the new Act comes into force  not revived

 Claims discovered (within meaning of new Sct) before the new Act comes into force  old act

 Claims discovered (within meaning of new Act) after the new Act comes into force  new act

 Ultimate limitation period runs from later of

. Day new act comes into force

. Day act or omission is deemed to have occurred under new act

DISCOVERABILITY

 Delays the start of limitation period until a time when a reasonable person in the P’s position knew or ought to have known that the right to sue existed

 Usually only legal remedy available to P for missed limitation period

 Assessed on case-by-case basis

 Plaintiff must know:

 He has suffered a legally cognizable injury

 Injury was caused by the fault of defendant

DISCOVERY OF CLAIM

GENERAL RULE

 Claim is discovered on the first day on which the person knew or reasonably ought to have know ALL of the following (s. 8)

 The injury, loss or damage had occurred

 The injury, loss or damage was caused by or contributed to by an act or omission

 The act or omission was that of the person against whom the claim is or may be made

 Having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury loss or damage

SPECIAL RULES

 Minors (s.18)

 Persons under disability (s.19)

 Special situations

 Fraud or trust claims (s.12)

 Claims for future interest in trust property (s.13)

 Claims for demand obligations (s.14)

 Claims to realize or redeem security (s.15)

 Claims for contribution of indemnity (s.16)

 Claims of successors, predecessors, principals and agents (s. 17)

FRAUD OR TRUST CLAIMS

 New Act  Higher discoverability threshold for certain defined claims involving fraud or trust (s.12)

 B must be “fully aware” of elements (rather than “knew or reasonably ought to have known”); burden of proof on trustee

 Why higher threshold? T in fiduciary relationship with B

 Not all fraud claims: claims based on fraud, fraudulent breach of trust, recovery of trust property, or any other claim arising out fiduciary relationship between T and B involving wilful concealment, where person with claim is B and person against whom claim is made is T

DEMAND OBLIGATIONS

 Old Act  6 year limitation period to collect on demand obligation commences when loan is first made and delivered

 New Act  2 year limitation period commences after demands and payment refused; must sue within 2 years from first day of default

 Does the period start the day of the default or the day after the default?

 Hayley thinks latter is the sensible route (fractions of the day should not be included in computations of time), but some Ontario cases with similar language in statute seem to suggest period starts day of default.

REALISE OR REDEEM SECURITY

 Old Act  does not specify when time begins to run for claims to either realize or redeem security

 New Act  2 year limitation period commences on the first day that the right to enforce the security arises (s.15)

 K relationship will determine when you do have that right

CONTRIBUTION AND INDEMNITY

 Old Act  judge has discretion re: whether to allow contribution and indemnity claims

 New Act  basic limitation period commences on later of:

 Day the claimant for contribution or indemnity is served with the original pleading

 Day the claimant knew or reasonably ought to have known that a claim for contribution or indemnity could be made (s.16)

 May not be until served with documents that you know certain parties had role to play in damage to P; so important to get all the evidence so you can to know who should be joining D in the litigation; want to avoid fighting over discoverability

M(K) V. M(H) (1992, SCC)

 Rebuttable presumption of discovery at time of psychotherapy for incest victims

 Facts:

 A subject to recurring, incestuous sexual assaults between ages of 8-16; began therapy as adult; commenced action vs. father at age of 28; assessed damages of 50K BUT action dismissed on basis of statute of limitations; A appeals

 Issue:

 At what point did A’s cause of action become discoverable?

 Held:

 Appeal allowed

 TEST: Claim does not accrue until P is reasonably capable of discovering the wrongful nature of D’s acts and the nexus between those acts and her injuries

 Discovery took place only after A entered therapy

 Analysis:

 Limitation periods based on three rationales: certainty, evidentiary and diligence rationales

 Rigorous application of statutes of limitations in cases of incest inappropriate b/c:

 Damages from incestuous abuse often remain latent until victim well into adulthood

 Causal connection between incestuous activity and psychological injuries often unknown to victim

 Social context: powerful taboos operate to silence victims of incest

 THEREFORE Rebuttable presumption that victims of incest only discover the necessary connection between their injuries and wrong done to them during some form of psychotherapy

PEIXERO V. HABERMAN (1997, SCC)

 Discoverability applies to alter limitation period where extent of personal injury not know to meet the threshold for cause of action

 Facts:

 1st accident October 1990; P suffers soft tissue injuries; 2nd accident January 1992; more soft tissue injuries; January 1993 CT scan reveals herniated disc; July 1994 P initiates action against driver in 1st accident; judge holds action is barred by limitation period

 Issue:

 Does the doctrine of discoverability apply to postpone the 2-year limitation period in s.206(1) of ON Highway Traffic Act?

 Held:

 YES

 Time under s.206(1) does not being to run until it is reasonably discoverable that the injury meets the threshold of s.266(1) of Insurance Act

 Given medical advice, P’s injury only reasonably discoverable in January 1993 so action NOT barred

 Analysis:

 At CL, ignorance of or mistake as to extent of damages does not delay limitation period BUT ON no- fault insurance scheme requires threshold of “permanent serious impairment” before there is a cause of action under s.266(1) of Insurance Act

 To hold discoverability does not apply under s.206 would unfairly preclude actions by Ps unware of the existence of their cause of action

NOVAK V. BOND (1999, SCC)

 Restrictive Subjective/Objective Test for discoverability

 Facts:

 P was patient of Dr. B; concerns about lump/soreness in breast; Dr. B dismissed concerns; referred to specialist in October 1990 found breast cancer; decided not to pursue litigation b/c focused on healing; may 1995 diagnosed with further cancer; April 1996 commenced action vs. Dr. B for damages relating to recurrence of cancer in May 1995; Dr. B moved for action to be dismissed; CA allowed P’s appeal; Dr. B appeals to SCC

 Issue:

 Is the limitation period for bringing an action under s.3(2)(a) postponed by s.6(4) in this case?

 Held:

 YES

 S. 6(4) Restrictive Subjective/Objective TEST: would a reasonable person, knowing the facts within the P’s means of knowledge and having taken the appropriate advice a reasonable person would take on those facts, regard those facts as showing both (a) that the action would have a reasonable prospect of success AND (b) that the P “ought to be able to bring an action” given the person’s own interests and circumstances?

 “Ought to be able to bring an action” MEANS “in light of his/her own circumstances and interests, at what point could the P reasonably have brought an action?

 Interests and circumstances must be serious, significant and compelling – case-by-case basis

 Circumstances of P before May 1995, in particular her need to maintain positive outlook/believe herself cured/focus on healing, precluded decision to sue Mr. B. THEREFORES. 6(4)(b) of postponed running of time at least until that date

 Action not barred by s. 3(2) NOR is it barred by ultimate limitation period of 6 years in s. 8(1)

 Analysis:

 Most limitation statutes now have 4 characteristics, in that they are intended to: (1) define a time at which potential D may be free of ancient obligations; (2) prevent the bringing of claims where evidence may have been lost to the passage of time; (3) provide an incentive for Ps to bring suits in a timely fashion and; (4) account for the Ps own circumstances, as assessed through a subjective/objective lens, when assessing whether a claim should be barred

 Best interpretation of limitation statutes give effect to these 4 characteristics – highly contextual

CAPACITY

 It is unfair to have P’s claim expire due to lapse in limitation period where the P suffers from some incapacity (eg. age or psychological)

 POSSIBLE TEST - “Business transactions” threshold: whether reasonable P in P’s position has the capacity to undertake a business transaction of similar seriousness and complexity as the commencement of a lawsuit

ULTIMATE LIMITATION PERIODS

 Absolute upper limit limitation periods that cannot be tolled by discoverability doctrine

 Begins on the date the act or omission on which the claim is based took place

 In BC – ULP is 30 years OR 6 years for medical malpractice/negligence claims

 ULP do not exist for causes of action where no limitation period at all

NOTICE PERIODS

 Parallel limitation periods in general operation and effect

 Notice often required by government agencies before legal claim is launched

 Designed to alert D to pending lawsuit to (a) preserve evidence and, (b) in some cases, rectify unsafe/undesirable situation

SCOPE OF THE MATTER

RES JUDICATA

INTRODUCTION

 Doctrine of res judicata prevents re-litigation of matters already decided

 Founded on the twin principles that same party shall not be harassed twice for same complaint AND societal value in finality and conclusiveness of judicial decisions (Angle v MNR)

 Two limbs: cause of action estoppel (or “claim preclusion) AND issue estoppel

 Elements:

 A final judicial decisions

 By a judicial body with competent jurisdiction

 Raises an estoppel against a party or privy connected to that litigation from challenging that decision in subsequent litigation

. Estoppel must be pleaded; cannot just be pulled out of your hat at trial

 Against one who was a party or privy in or to the earlier litigation

 What is privy?

 Elastic concept, but requires a sufficient connection between the two parties being compared in order to determine whether it is fair and appropriate to apply res judicata law

 Reliable Mortgages Investment: Was a person who had a mortgage knowledgeable about the fraud? Some of the monies from the fraud went to 3P. This person was not part of first litigation, but characterized as a privy.

 Privy can be a corporate connection; or a board that has written a decision about an applicant

 Exceptions

 Exceptional circumstances where some overriding Q of fairness requires rehearing of the matter, eg:

. Fraud or other misconduct in earlier proceedings

. Discovery of fresh evidence that “entirely changes the aspect of the case” that could not, by reasonable diligence, have been adduced in the earlier proceeding (McIlkenny)

 Rule in Henderson v Henderson:

. "[W]here a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

 6 essential estoppel doctrines (Donald Lange, The Doctrine of Res Judicata in Canada; cited in Reliable Mortgages)

. issue estoppel bars an issue which has actually been decided in the first proceeding

. issue estoppel under the rule in Henderson bars an issue which could have been brought in the first proceeding

. cause of action estoppel, the trust re judicata, bars a cause which has actually been decided in the first proceeding

. cause of action estoppel under the rule in Henderson bars a cause which could have been brought in the first proceeding

. abuse of process by re-litigation bars a second proceeding when the integrity of the judicial decision-making process in the first proceeding will be undermined

. collateral attack bars a second proceeding when a party, bound by an order, seeks to avoid compliance with that order by challenging the order itself and its enforceability, not directly but indirectly in a separate forum

. POLICY: consideration of issue estoppel or cause of action estoppel focuses upon the interests of the litigants, whereas a consideration of abuse of process or collateral attack focuses upon the justice system

 Whether the litigation of a cause or issue is barred by the application of res judicata is a QoL, reviewable on a standard of correctness (Cliffs Over Maple Bay)

 Policy Considerations:

 Society benefits from ensuring finality of judicial decisions

 However in achieving that goal no injustice should be done to the parties

 Cause of action estoppel – one cannot attempt to re-litigate on the basis of new legal theory when the facts are basically the same

 Prevents litigation by installments

 Need to plead everything up front; can’t keep coming up with more legal theories/claims as things proceed

CAUSE OF ACTION ESTOPPEL

 Defining Cause of Action:

 the group of operative facts giving rise to one or more bases for suing, or the factual situation that entitles one person to obtain a remedy from another (Britannia Airways)

 Only one cause of action where P suffers both personal and property damage (Cahoon v Franks)

 Principles:

 Prevents not only the same cause of action from being litigated again, but also bars claims which properly belonged to the subject matter of the previous litigation (Maynard v Maynard)

 Prevents party from attempting to re-litigate a case by advancing a new legal theory in support of a claim based on essentially the same facts or combination of facts (Las Vegas Strip Club)

 Inquiry into re-litigation of matters not raised in first proceeding is NOT a bright line test, but an inquiry into context/issues raised in first proceeding (Hoque v Montreal Trust Co)

. Consider varying approaches to this Q pp. 325-6

 Requirements:

 Generally: Two actions must involve the same parties OR their privies

. Exception: non-mutual issue estoppel

 Claim now sought to be asserted must have been within the prior court’s jurisdiction

. P must have had opportunity to recover in first action

 Prior adjudication must have been on the merits

. Denies preclusive effect to adjudications where first action dismissed for procedural reasons not going to the merits

. BUT where claim was not but should have been asserted in prior proceeding, will be barred even though no adjudication on the merits

. Default judgment also considered an adjudication on the merits for purposes of this principle

 Prior decision must have been a final judgment

. Q of whether preclusive effect should be given to judgment under appeal

 Application:

 If P wins first action, cause of action said to merge in the judgment and cannot be reasserted

 If P loses first action, cause of action said to be barred by judgment for the D

 Applies not only to judgments of courts after contested hearing, but also to default judgments (Miscouche), consent judgments (Patterson) and to foreign judgments entitled to recognition under conflicts of laws principles (Pervez)

 Application to counterclaims is unclear (p. 327)

BRITANNIA AIRWAYS V. RBC (2005, ONT SCJ)

 Facts:

 BA was customer of Jet Card system (credit card for aviation industry); used to pay for goods in Egypt; claimed they were overcharged; started lawsuit vs. companies offering the Jet Card System – Air Routing in Texas and RBC in ON; pleadings exchanged in RBC action but remained dormant; BA lost Texas lawsuit in entirety; 2 years later revived RBC action; RBC brought cross-motion to dismiss on res judicata and abuse of process; BC says claims in Texas and ON are different

 Issue:

 Is BA estopped from pursuing their claim vs. RBC?

 Held:

 YES – both branches of the res judicata doctrine apply

 Analysis:

 Both lawsuits rest on same factual allegations; Texas decision was final and RBC is privy in interest to the matters that were or could have beet raised in Texas – therefore all three elements for issue estoppel are met (see below)

 Cause of action estoppel also applies to bar the claim for negligence b/c this claim properly belonged to the subject matter of the Texas lawsuit

ISSUE ESTOPPEL

 Arises where the second action does not involve same cause of action or claim, BUT courts treat issues decided in the first action that also arise in the second action as settled

 DISTINGUISH stare decisis: rule of law decided in earlier case can determine/control result in another case BUT parties to second case are free to argue that principle DOES NOT apply to their set of facts

 Requirements:

 same Q/issue has been decided

 prior judicial decision was final 34 Civil Procedure: Drafting

 parties to both proceedings are the same or their privies (Danyluk v Ainsworth)

. Privity is determined on a case-by-case basis; consider whether the party seeking to take advantage of the judgment would have been bound had the judgment gone the other way (Britannia Airways)

MCILKENNY V. CHIEF CONSTABLE OF THE WEST MIDLANDS

 Mutuality requirement preserved

 Facts:

 Ps are alleged members of IRA; convicted of bombing hotel; at criminal trial alleged that confessions were beaten out of them; judge (on voir dire) rejected this contention; later brought damage action vs. PO for beating them during interrogation; PO argue issue estoppel from earlier criminal proceeding

 Issue:

 Is mutuality required for issue estoppel to apply?

 Held:

 YES – issue estoppel only applies where same parties or their privies

 1980, QBCA – Lord Denning

 A previous decision against a man operates as an estoppel preventing him from challenging it in subsequent proceedings UNLESS he can show obtained by fraud or collusion OR can adduce fresh evidence to show previous decision was wrong  Here the issue was fully tried our and decided at the “trial within a trial” – this is decisive despite the fact that there was no mutuality (PO not party to first litigation)  So Denning here trying to get rid of mutuality requirement for issue estoppel  Says US position should be adopted: . A person who has had an issue decided against him in action A is estopped from contesting it in later action B – even if the other party is different in the 2 actions.

 1982, HOL – Lord Diplock

 “issue estoppel” should be restricted to civil actions between same parties or their privies  abuse of process is broader and does not require mutuality

 NOTE: Bomac Construction (1986) where court held that D liability for plane crash established in first action applied to second action with different P (p.339)

 NOTE: Is the mutuality requirement still operative in Canada, or have the courts, by increasingly using the abuse of process doctrine, effectively achieved the “death of mutuality”? (Garry Watson)

BOMAC CONSTRUCTION V. STEVENSON (1986, SKCA)

 Abuse of process for D plane owner and pilot to claim lack of negligence in second action brought by B when same action against them brought by A had previously succeeded.

 Accordingly D was struck out to prevent “the potential injustice perpetrated both on the parties and the judicial system by having the same basic issues dealt with in two and perhaps three separate trials”

 Old but still a significant case – lack of mutuality and yet it appears that something akin to issue estoppel was being applied

 What if the court would have said here – “no mutuality, too bad”. What would this mean in the future for people in the position of P#2 in a case like this?

 Would allow the D repeated “kicks at the can” in defending their case

 Want to encourage people to join their actions; avoid people simply waiting and seeing how a case goes and then bringing their own

 Contrast: asbestos cases. There the key issue is the latency of the product – for how long has a person been expose and in what quantities and within what working conditions (eg. protections). So may require a different trial. Q is not just “can asbestos kill?” but “did it cause harm in this case?”. Whereas in the case of the place crash, exact same material facts; therefore estoppel seems more justified.

TORONTO (CITY) V. CUPE, LOCAL 79 (2003, SCC)

 Sets out a summary of the law of res judicata, including cause of action and issue estoppel.

 Collateral attack and abuse of process.

 Facts:

 Recreation instructor for city, charged with sexually assaulting boy, pleased not guilty, went to trial, tj found that complainant was credible but A was not. A convicted and this was affirmed on appeal. City fired him. CUPE complained on behalf of A. There was arbitration hearing. Submitted complainant’s testimony from criminal trial and other evidence. Arbitrator rules criminal conviction was admissible evidence but not conclusive.

 Here the criminal court has determined BRD that he is guilty; and arbitrator whose expertise is in the area of employment/labour law not criminality said conviction admissible but not conclusive

 Held that presumption raised by criminal conviction had been rebutted, and A had been dismissed w/o just cause

 A said “didn’t do it” at arbitration hearing, and complainant not there to rebut it so arbitrator found in his favour

 Held:

 SCC determines that mutuality requirement should not be dropped in a case where there has been a criminal verdict that is being disputed in the second action – therefore issue estoppel is not applicable

 Why no issue estoppel? No mutuality

 SCC explores collateral attack - bars actions that purport to dispute or “overturn” orders made by a court with jurisdiction

 Endorses Binnie J. in Danyluk: “… a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law [such as appeals and other judicial review] for the express purpose of attacking it”

 In this case, collateral attack was apparently not seen as the applicable doctrine since the criminal judgments legal force was not challenged by the arbitrator, only its correctness. DO you agree?

 Why not collateral attack? Does not seek to overturn the conviction itself (challenge it’s legal force), but simply to challenge correctness of the decision in a different context with different circumstances

 SCC in this case therefore chooses to apply the broader abuse of process doctrine.

 Judges inherent discretion to prevent an abuse of the court’s process is found to be applicable

 Arbour J states: “the attraction of the abuse of process is that it is unencumbered by the specific requirements of res judicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of the court’s process”

 Finds the case before the court a “blatant abuse of process” to allow a convicted sex offender to be reinstated in employment where he “would work with the very vulnerable young people he was convicted of assaulting” (p.357)

 DO you find this conclusion both fair and doctrinally sound?

 Does this case give too much discretion to the courts, or is it simply applying good common sense rather than artificial doctrinal rules?

 What is it here that is the abuse of process?

 The SCC has same visceral response that anybody, w/o any legal training would have, to the arbitrator’s treatment of the prior conviction of sexual assault

 And the easiest way to deal with this is through abuse of process; without chipping away at the parameters/requirements of res judicata

RASANEN V ROSEMOUNT (1994, ONCA)

 Strictly applied issue estoppel to bar an EEs claim for wrongful dismissal

 Abella JA held that dismissal of the EEs ESA claim for 8 weeks termination pay raised an estoppel in his subsequent civil action for wrongful dismissal. She found that Ministry of Labour and the EE were privies sharing a “community of interest”

 Carthy JA strongly disagreed: “it would be unfair to an EE who sought out immediate and limited relief of $4K, forsaking discovery and representation in doing so, to then say that he is bound to the result as it affects a claim to 10x the amount”

 Went on to quote English decision of Carl-Zeiss-Stiftung: “all estoppels are not odious but must be applied so as to work justice and not injustice, and I think that the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind”

 That case had to do with the question of what degree of procedural fairness in tribunal hearing should be applied to the issue of estoppel for people who then proceed to make claim in court

 American law Institute provides as an exception to the general rule of issue preclusion estoppel that a “new determination of the issue is warranted by differences in the quality of extensiveness of the procedures followed in the two courts”. Should that be law of Canada?

 So if something is dealt with say, w/o discovery, not giving something akin to a trial, should these factors be taken into account in determining whether you should be able to proceed with civil litigation where you have all of these additional safeguards?

MINOTT V O’SHANTER DEVELOPMENT CO (1999, ONCA)

 Emphasized the importance of mutuality: “to apply issue estoppel, the parties to the first proceeding must eb the same as the parties to the second proceeding” (p.363) and that “recent case law in this

province suggests that a person must actively participate in administrative proceedings to meet the ‘same parties’ requirement of issue estoppel”

 In this case the ER chose not to actively participate in the EE’s application to a Board for UI benefits

 Court based its decision on various policy grounds, including that:

 Claims for UI should, under relevant legislation, be adjudicated quickly, inexpensively and summarily, and

 Vulnerable EEs seek benefits when least able to bring forward best case

 Procedural differences between the admin process and civil action may be profound

 Expertise of Board is different from, and narrower, than that of a court on the subject of wrongful dismissal

DANYLUK V AINSWORTH TECHNOLOGIES (2001, SCC)

 Attempted to clarify law concerning issue estoppel and admin tribunals

 Binnie J made plain (at p. 372) that “the rules governing issue estoppel should not be mechanically applied”. If the “preconditions” are met, the court “must still determine whether, as a matter of discretion, issue estoppel ought to be applied”

 SCC found that, although the preconditions were met, ought not to apply estoppel, as a matter of discretion

 Cites with approval Bugbusters (BCCA): “the doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of judicial discretion to achieve fairness according to the circumstances of every case”.

 In this case, ESA officer failed to make decision in judicial manner, since EE not provided with info that the respondent provided concerning ESA complaint, nor given opportunity to respond. Besides dealing with this “injustice: as the “most important factor”, SCC considered various other factors, including purpose of legislation, lack of appeal, deficiencies in the procedures generally, and the relative lack of expertise of admin decision-maker

 Conclusion: when called upon to prevent litigation from proceeding on res judicata/abuse of process principles, the courts appear to want increasingly to be able to exercise their discretion based on a thorough appreciation of what will be fair to the parties, rather that simply applying the rules in a mechanical way

 Are there any possible problems with such an approach?

 Unpredictability

ABUSE OF PROCESS CASES

PETRELLI V. LINDELL BEACH HOLIDAY RESORT LTD (2011, BCCA)

 Facts:

 Ps and Bs both own holiday homes in Ds trailer park; Bs bring action vs. Ds alleging by-laws prohibit use of park for holiday homes; fundamental breach of purchase K; claim successful; Ps then bring similar action; D files statement of defence alleging P’s unit could be legally situated in the park as a legal non-conforming use; Ps claim abuse of process; chambers judge agreed with Ps and says D was raised/decided in B case

 Issue:

 Was the D abusing the process by defending the action by the Ps, when they already lost similar claim to Bs?

 Held:

 NO - abuse of process does not arise in this case

 Analysis:

 pleadings from the B action should be admitted as fresh evidence, notwithstanding the fact that it ought, with due diligence, to have been adduced in the court below – cannot determine merits of the abuse of process argument w/o it b/c shows that D DID NOT raise legal non-conforming use D in previous action  doctrine of issue estoppel not applicable in this case b/c no mutuality BUT abuse of process doctrine does not have same restrictions (Toronto v CUPE)  focus of the doctrine of abuse of process is on the integrity of the adjudicative functions of courts – efficient use of resources and credibility authority of judgments – BUT does not arise in this case b/c issue of legal non-conforming use was not before the court in B action  where rule in Henderson v Henderson is basis of abuse of process argument, court must look beyond Toronto v CUPE

 Here, trial court not being asked to reconsider an issue that had previously been litigated, or was it being asked to make primary finding of fact that were incompatible with previous findings

RELIABLE MORTGAGES INVESTMENT CORP. V. CHAN (2014, BCCA)

 Facts:

 C’s nephew used forged PoA to mortgage her house w/o her knowledge; mortgage deposited into C’s bank account; says nephew persuaded her it was his and to transfer to him; Reliable seek to foreclose on mortgage; says C actively assistant in fraud by transferring $ and could have made reasonable inquiries; foreclosure petition dismissed; TJ says only ruling on foreclosure; Reliable files civil claim for fraud and conversion; C claims abuse of process; chambers judge says no abuse of process; no decision on conversion decided at trial and right to deal with issue later specifically preserved in decision of TJ; C appeals

 Issue:

 Is Reliable’s civil claim an abuse of process by relitigation?

 Held:

 NO

 Analysis:

 No issue estoppel: case at trial involved validity of the mortgage whereas civil case involves Q of whether C was negligent or willfully blind – adequacy of C’s inquiry was considered irrelevant to case at trial  No cause of action estoppel: cannot be said that Reliable ought to have brought forward the conversion claim in foreclosure action b/c allegations do not go to root of mortgage claim; proceedings not intended to resolve all claims that might arise IF not possible to obtain relief pursuant to terms of mortgage; in the alternative action should not be barred in special circumstances of this case

 No abuse of process: nothing in the conduct of Reliable challenges integrity of adjudicative functions of the court – alerted TJ of intention to seek further or other relief if mortgage unenforceable

PLEADINGS

See Rule 3-7 Pleadings Generally in Appendix.

CLASS DISCUSSION

 Importance of Pleadings

 in recent years, has “become fashionable” to attach decreasing importance to pleadings; insistence that complete compliance with technicalities puts justice at risk BUT pleadings continue to play an essential part in civil actions, “for the primary purpose of pleadings remains, and it can still prove of

vital importance. That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it” – Lord Edmund-Davies in Farrell v Secretary of State for Defence (1980, HL)

 there was a time when it was hard to justify the extent of technicality in pleadings

 in the 19th century, pleadings became mired in technicalities and arbitrary distinctions

. rules framed to prevent ambiguity and obfuscation have been abused and certain arbitrary regulations and forms have caused objections to practice of special pleading

 as late as the 1970s, the artificiality and disingenuousness of pleadings was the subject of complaint by law reformers

. continued critique about complexity and lack of transparency

 even today with much realization of the traditional rules and forms of pleadings, appellate courts have emphasized

. “it is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings” – Rodaro v RBC

 Rules of Pleadings

 Term “pleading” tends to be used loosely

 Under BC Rules of Court, a “pleading” is defined (Rule 1-1) as “ a notice of civil claim, a response to civil claim, a reply, a counterclaim, a response to counterclaim, a 3P notice or a response to a 3P notice”

 Thus an affidavit is not a “pleading” and it of course contains evidence and not simply material facts

 A petition and response to petition are also not, strictly speaking, pleadings, but they do require the forms (66 and 67) pleading of material facts

 Material Facts vs Evidence

 A matter of degree: the appropriate level of generality.

 Rule 3-1(2) – “A notice of civil claim must…

. (a)Set out a concise statement of the material facts giving rise to the claim

 similar requirements are found in the Rules of other pleadings: eg. Rules 3-3(2), response to civil claim; Form 5, third party notice; Form 6, response to 3P notice

 material facts are generally defined as those necessary to establish a cause of action or a defence to it 42 Civil Procedure: Drafting

 however the line between material facts and evidence is at times rather unclear – not cut and dry

 Odgers, a traditional authority on pleadings practice says “no general rule can be laid down” – pleader must use own judgment in deciding which he must plead and which he may safely omit

. Err on the side of telling more rather than less; rare that another side will come to court and say “there is too much evidence in this pleading” BUT in can be done

. If you are in doubt about whether you need to do something to catch the materiality of an issue, say it

. As you write things down, may help guide your case/strategy

 Usually don’t need to worry about being too prolix or wordy unless you are being tedious – still need to tell a story

. Problem only really arises where the judge can’t “figure out” the story or distill the important facts from the pleading

. But prolix pleadings will be struck out

 Distinction between material facts and evidence is essentially one of degree: material fact is sufficient of itself to establish legal proposition and w/o which the cause of action is incomplete

 Rule 3-7(1) states that: “a pleading must not contain the evidence by which the facts alleged in it are to be proved.”

. This Rule is generally no strictly enforced, unless the pleadings of evidence is confusing, prolix, and/or prejudicial.

. See Homalco Indian Band v BC (1998, BCSC), which makes plain that “embarrassing” pleadings that fail to ID the cause of action or that contain irrelevant material or that are intended to confuse are prejudicial and will be struck

 “particulars” are “additional bits of information or data, or detail, that flush out the ‘material facts’, but they are not so detailed as to amount to ‘evidence’” – Copland v Commodore Business Machines

. so particulars are ancillary to material facts but not quite evidence

. Hayley: questions how particulars are not evidence; can particulars merely be evidence, which a party ought not to plead?

 Rules 3-7(18) to (24) allow for the demand and production of particulars where necessary

. Rule 3-3 (18): “if the party pleadings relies on misrepresentations, fraud, breach of trust, wilful default or undue influence, or if particulars may be necessary, full particulars, with dates and items if applicable, must be stated in the pleadings”

 What doe these things have in common; the things that require particulars? All involve moral wrongdoing/misconduct.

 If in your pleading, you are going to claim moral wrongdoing – you need to provide more information than you would otherwise

 These requirements have been broadly interpreted:

. “the situations where particulars may be ordered are not limited to the circumstances listed in this rule. Full particulars may be required if necessary given the purpose of particulars to inform as to the nature of the case, prevent surprise, enable evidence to be prepared, limit generality of pleadings, limit and decide issues and tie the hands of parties” – Harris v Ray Kissack Memorial Housing Society

. why would you want to “tie the hands of parties”? When someone pleads something that involves eg. misconduct, and they do it in a vague and generalized way; they may just be emoting and hoping that documents in discovery will support their case; will want to pin them down as to their allegations

 Pleading Law

. Rule 3-7(9): must not plead law unless along with the material facts supporting them

. Rule 3-1(2)(c) requires that the notice of civil claim include a “concise summary of the legal basis for the relief sought

. Rules 3-3(2)(c), 3-4(6), 3-5, Forms 2-6 – legal basis for a response to civil claim, counterclaim and 3P notice must also be pleaded

. In pleading subsequent to a notice of civil claim (eg response to civil claim, counterclaim, reply) a party must, according to rule 3-7(12), plead “specifically any point of law that the party alleges makes a claim or defence of the opposite party not maintainable or if not specifically pleaded might take the other party by surprise” – JJM Construction v Sandspit Harbour Society

. It is prudent if not obligatory to specifically plead punitive damages and the grounds for seeking that relief - Whiten v Pilot Insurance

. Pilot: D insurance company raised in bad faith an allegation of arson against the insured, and went to trial on that D, despite the fact that the allegation was contradicted by local fire chief, insurance company’s own expert investigation, and initial expert, all of whom said there was no evidence of arson

. To what extent should pleadings require a meaningful factual and legal foundation as a matter of legal ethics?

. Need to look beyond just the adversarial system; need to make sure that in fighting hard, you are also fighting fair

 Continuing importance of pleadings

 party can examine opposing party’s representative only on “issue o the pleadings”

 party cannot lead evidence at trial of a material fact not pleaded

 party may be denied a remedy not properly pleaded

DEFINITION AND PURPOSES OF PLEADINGS

 Pleadings are the primary documents by which actions are commenced and defended

 All Canadian jurisdictions require material fact pleading & provide for significant pre-trial disclosure in effort to limit unfair surprise at trial

 Purposes:

 Defining the questions

 Notifying the opposing party of the case to be met

 Framing the issues

 Providing a clear record of the issues (to prevent re-litigation)

 Advocating the justice of the pleader’s case

NATURE AND FUNCTION OF PLEADINGS

OVERVIEW

 Exchange of “alternate allegations” between parties

 Requires parties to cast their story into legal narrative

 Statement of claim sets our the relief claimed and the facts that are said to give rise to the legal entitlement to relief

 Statement of defence must respond to the allegations in the statement of claim (unless D wishes to make preliminary attack).

 Four general types of responses:

 Admissions

 Denials

 No knowledge

 Affirmative defences

 If D pleaded an affirmative defence, raising new allegations, P may be required to file a reply

 Must file reply if wish to assert affirmative defence, rather than mere denial

 Other types of pleadings include counterclaims, 3P and subsequent party claims and crossclaims

 Impact of the scope of pleadings

 Within litigation, will assist in determining scope of parties obligations in documentary and oral discovery

 In class proceedings, strategic framing of pleadings may play a role in determining certification

 Can play integral role in determining whether insurer has duty to defend and/or indemnify a defending policyholder

MECHANICS

 Rules of procedure define the time limits for filing/serving pleadings BUT courts generally have broad discretion to extend

 Party that fails to meet time limits may be noted in default by opposing party

 Rules of professional responsibility often require cooperation between counsel in respect to reasonable requests to extend filing deadlines

FORM AND CONTENT

 Material facts must be pleaded

 Failure to plead material facts with sufficient degree of specificity may result in summary disposition of case w/o trial

 Degree of specificity will depend in part on nature of allegations - “sliding scale” of material facts

 E.g.: specificity when allegations of moral wrongdoing

 Party may request additional particulars in relation to allegations made in pleading

 Facts that simply tend to prove allegations already made tend to fall into the category of evidence and, therefore, should not typically be pleaded

 Immaterial or irrelevant facts should not be pleaded – “scandalous”, ”embarrassing”, ”frivolous”, and/or “vexatious” pleadings will typically be struck out by court

 Allegations in statement of claim must be taken as true for the purpose of pleading

 Power to strike out pleading should only be used in narrow circumstances where obviously unsustainable and devoid of all merit

COPLAND V. COMMODORE BUSINESS MACHINES (1985, ONT SUP. CT.)

 Minimum level of material fact disclosure to plead cause in wrongful dismissal action is “very high”

 Facts:

 EE claims wrongful dismissal; ER pleads dismissal for cause; alleged that EE misrepresented salary, permitted excessive costs of sales, imprudent personal transactions, treated other EEs in abusive manner, abused limo/entertainment privileges, was insubordinate and confronted president inappropriately on last day of employment

 Issue:

 Did ER meet the minimum level of material fact disclosure in their pleas for cause?

 Held:

 NO – pleas for cause struck out, leave to D to amend statement of defence

 Analysis:

 Spectrum: material facts (must be pleaded)  particulars  evidence (must not be pleaded)

 Particulars can be obtained by a party, where the minimum level of material fact disclosure has been met, if that party swears affidavit showing particulars necessary to enable him to plead to the attacked pleading AND are now within the knowledge of party asking for them

 Minimum level of material fact disclosure in this context is “very high” – must contain sufficient detail so that EE and court can ascertain the exact nature of Qs to be tried and EE can meet charge

WHITEN V. PILOT INSURANCE CO (2002, SCC)

 Facts:

 Ws home and contents destroyed by fire; Pilot made single 5K payment for living expenses and paid rent for a few months; then cut off rent and pursued confrontational strategy; alleged arson; wholly discredited at trial; jury found arson charge was made in bad faith to force settlement; awarded 1 million in punitive damages; CA reduced award

 Issue:

 Did the P plead the material facts necessary to establish claim for punitive and exemplary damages?

 Held:

 YES

 Analysis:

 P specifically asked for punitive damages in statement of claim and if D was in any doubt, should have applied for particulars

 No surprise in this case except in regards to quantum of damages

 Statement of claim was somewhat deficient in failing to relate plea for punitive damages to the precise facts BUT Pilot went to trial on this pleading and should not be permitted to complain now

SUBSTANTIVE CONTENT

SUBSTANTIVE ADEQUACY

 Basic requirement of pleading: must disclose or defend a cause of action

 Statement of claim: must articulate set of facts which, if true, would entitle P to legal relief claimed

 Statement of D: must articular set of facts which, if true, would provide D with valid defence to P’s claim

 TEST for Substantive Adequacy: 48 Civil Procedure: Drafting

 Has the party, on the face of it’s pleadings:

. Advanced a valid cause of action or defence

. Plead all the material facts needed to support the cause of action or defence

 DOES NOT involve consideration of whether sufficient evidence may be raised at trial to prove allegations

 Substantive adequacy may be challenged by opposing party in a motion to strike out pleading

DAWSON V. REXCRAFT STORAGE AND WAREHOUSE (1998, ONCA)

 Analysis:

 Purpose of motion to strike out statement of claim is to test whether P has stated a claim for which court may grant relief

 This is a purely legal question – does not consider any evidence

 Court is required to give generous reading to statement of claim, construe it in light most favourable to P, and be satisfied that it is plain and obvious that P cannot succeed (Hunt v Carey)

 Statement of claim may fail b/c: 1) P has sought relief for acts not proscribed by law 2) failed to allege necessary elements of claim that would constitute reasonable cause of action

 Where 2) arises because of simple oversight, court should allow P to amend statement of claim

 Same analysis applies to statement of D

WYMAN AND MOSCROP REALTY V. VANCOUVER REAL ESTATE BOARD (1957, BCCA)

 Necessary averment must be expressly pleaded

 Facts:

 P claims wrongful expulsion from Vancouver Real Estate Board, loss of reputation and order to reinstate membership; D claims that P did not specifically plead that they are members of VREB; P says this was implicit in claims

 Issue:

 Did the P’s statement of claim plead membership with sufficient clarity?

 Held:

 NO – Ps given 15 days to amend otherwise statement to be struck out

 Analysis:

 Party must plead all material facts on which he tends to rely at trial – no averment must be omitted which is essential to success

 Necessary averment must not be left to inference or implication – must be express

 Pleading as it stands may mean nothing more than claim to de facto membership, which would be insufficient to constitute the basis for relief claimed

HOLLAND V. SASKATCHEWAN (2008, SCC)

 For statement of claim to be struck, must be clear that cause of action could not succeed if went to trial

 Facts:

 Group of 200 game farmers refuse to register in federal program to prevent Chronic Wasting Disease (CWD); objected to broadly worded indemnification & release clause; lost CWD-free herd certification; reduced market price for produce and diminished ability to sell; successfully established on judicial review that clauses were invalid; gvt did not take any action; sought relief in tort; gvt brings motion to strike; CA strikes out negligence claim

 Issue:

 Did CA err in striking out the negligence claim in its entirety?

 Held:

 YES – negligence claim should be allowed in part

 Analysis:

 No cause of action recognized by law, or justified by Anns inquiry, for breach of statutory duty by public authority – proper remedy is judicial review which was already successful, no parallel claim in tort

 Claim for negligent failure to implement adjudicative decree may or may not succeed – government may be liable in negligence for “operational” (vs policy) decisions THEREFORE not clear that the claim could not succeed if went to trial

SETTING THE BOUNDARIES OF LITIGATION AND TRIAL

RODARO V. RBC (2002, ONCA)

 Case must be decided within the boundaries of the pleadings

 Facts:

 TJ found that D was liable on grounds of lost opportunity, a cause of action not pleaded by the P

 Issue:

 Can a judge step outside the pleadings to found liability?

 Held:

 NO – lawsuits must be decided within boundaries of pleadings

 Analysis:

 Injection of novel theory of liability into the case via the reasons for judgment was fundamentally unfair to D

 Theory never tested by adversarial process, therefore also reliability concerns

MACDONALD CONSTRUCTION COMPANY V. ROSS (1980, PEISC)

 Facts:

 P building contractor sues D lawyer for negligence in failing to take steps to realize on fire insurance policy; statement of Defence states “ D does not admit that P suffered the damages alleged or at all”; at trial, D argues that no loss would have been recovered in any event, b/c insurance policy voided for vacancy of property, and therefore no recoverable claim vs. D; P argues this line of argument was never pleaded

 Issue:

 Is the D permitted to advance this line of argument without amendment to pleadings? If not, should the D be permitted to amend?

 Held:

 D allowed to amend statement, with terms

 Analysis:

 “Pleadings are required to be so framed that they contain all material facts and matters in a manner sufficiently clear and concise to present the nature of the claim, or defence, so that the opposing party will not reasonably be taken by surprise, or which, in themselves will not raise collateral or subsidiary issues not otherwise pleaded”

 Defence as filed does not alert the P to the line of defence that D intends to advance therefore D precluded from pursuing it

 HOWEVER rules should not be strictly and rigidly construed to preclude amendment in every case

 Proposed amendment in this case should be allowed in order to bring all proper issues before the court

AMENDMENTS OF PLEADINGS

 generally, courts allow amendments freely before trial, subject to issues relating to limitations and prejudice to the opposing party

 evidence may not be required on an application to amend, except where limitation and/or potential prejudice to the opposing party may be involved

 Pleadings can be amended to properly ID parties:

 Changing “John Doe” or “Jane Doe” designations to actual names

 Correcting company names, and

 Giving new name of company or amalgamated company

 Delay in amending is generally not determinative, absence prejudice

 Pleadings are amended on the eve of trial, during trial and even rarely on appeal

 Legal arguments to persuade a court to amend include:

 Rule 1-3(1) – object of the Rules “is to secure the first, speedy and inexpensive determination of every proceedings on its merits”

 Law and Equity Act s. 10 – courts must grant all remedies that parties may appear to be entitled to “so that as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of the matters avoided” 52 Civil Procedure: Drafting

AMENDMENT TO ADD OR SUBSTITUTE PARTIES

 Court may not order the addition of a person at any stage of the proceeding, where:

 The person “ought to have been joined as a party”

 The person’s joinder “is necessary to ensure that all matters in the action may be effectually adjudicated on”, or

 As between the person and any party in the action “a question or issue relating to or connected with (i) any relief claimed in the action, or (ii) the subject matter of the action that, in the opinion of the court, it would be just and convenient to determine as between the person and that party”

 Court will take into account inordinate delay and explanation for it, expiry of a limitation period, any prejudice caused by the delay, and the closeness of the connection between the existing claims and the claim brought against the party sought to be joined

AMENDMENT TO ADD CAUSE OF ACTION WHERE LIMITATIONS PERIOD HAS EXPIRED

 Limitation act gives court discretion to allow amendment to raise a claim after the expire of a limitation period

 Must be “just and convenient”

 If delay does not cause prejudice, court likely will allow amendment

 A party can amend unilaterally at any time before the earlier of (1) delivery of the notice of trial and (2) the date a case planning conference is held

FINAL COMMENTS

 What if you get a pleading back and you don’t have enough time to complete in the time allotted by the rules? You can’t get the story right, can’t get the documents?

 First, try to raise this with the opposing counsel

 If they play hardball, Then you could plead a general denial

. Some mixed case law as to whether or not this is acceptable; generally it is acceptable and may, from a practical perspective be absolutely necessary

. Pro forma pleading to act as placeholder before you can get information for responsive pleading

. Other side can move to strike your pleading b/c doesn’t say anything – but buys you time

 Given that pleadings have problems inherent in them and still a lot of technicalities in them – is there an argument to be made that we should do without pleadings?

PRE-TRIAL RELIEF AND DISPOSITION WITHOUT TRIAL

STRIKING PLEADINGS

See Rule 9-5 Striking Pleadings in Appendix.

DISPOSITION WITHOUT TRIAL – MERITS RELATED

 First requirement of pleading is that it discloses a legally valid cause of action or D

 Pleading is required to contain a “concise statement of material facts upon which the party pleading relies” – but this must invoke a recognized legal theory of claim or defence

 Rules governing form of pleadings linked to requirement of substantive adequacy

 Court has three choices in deciding a motion to strike a pleading:

 Find the pleading adequate - dismiss motion

 Find the pleading defective, but determine it may be remediable – strike all or portion of pleading with leave to amend

 Find the pleading defective and NOT remediable – strike pleading with NO leave to amend

 The superior courts generally have inherent jurisdiction to control their own procedures, including the power to strike pleadings that are defective in a serious way, or if they are an abuse of process.

 If you look at old law; abuse of process was really at the root of it

 Today the Rules of Court amplify and codify this inherent jurisdiction.

 As far back as the 1875 English rules, courts were specifically empowered to strike pleadings that disclosed “no reasonable cause of action or answer.” This precise wording was found in BC rules until 1976.

 It is now reflected in Rule 9-5(1)(a), in somewhat modified language, stating that a pleading can be struck out on the ground that ...it discloses no reasonable claim or defence, as the case may be.” (same in substance)

 This sub-rule is focused on legal considerations: that, is, the case cannot succeed as a matter of law. No evidence is allowed on an application to strike under this sub-rule. Evidence is permitted under the other sub-rules of Rule 9-5.

 Rule 9-6, the summary judgment rule, can turn on whether the claim or defence is factually without any merit. Rule 9-5 (1)(a) is an attack on defective pleadings that do not disclose a reasonable cause of action or defence.

 This Rule usually applies to pleadings, but it can be used to strike defective or improper affidavits and exhibits to affidavits, as well as other documents.

 the test is a stringent one: the pleading will be struck only if it is “plain and obvious” that, even assuming that the facts pleaded are true, that the claim or defence has no reasonable prospect of success. The policy behind this sub-rule is to save time and money by striking hopeless cases at an early stage.

 Courts are often willing to allow parties to amend bad pleadings, but they will not do so if the defect is a matter of substance that is inherent in the claim or defence: see R. v. Imperial Canada (SCC), where the pleadings were extremely detailed and yet contained general themes which apparently could not be amended to make them acceptable.

 Courts are reluctant to strike where a novel point of law informs the impugned pleading, if it seems that it has a hope of succeeding. As the SCC in Imperial Tobacco stated (at para. 21), “Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed.”

 However, if the new point of law is inconsistent with the current law and contrary to policy, a court may well choose to strike the pleading, since the material facts are taken as true and prolonging the litigation process is not necessary or logical in the circumstances.

 Litigants will not succeed on a motion to strike merely by telling the court that discovery might bring some helpful information and/or admissions. Evidence is irrelevant to a motion to strike under 9-5 (1) (a); it is the material facts pleaded, and their relationship to legal propositions, that will determine the outcome.

 This may seem contrary to Hunt, but is an accurate statement of the relevant law.

 “Fanciful allegations of fact will not be accepted as truth where “they are manifestly incapable of being proven” – Imperial Tobacco para 22

 Strategic advantages of bringing motions to strike

 May end the litigation or part of it;

 May buy time while the opponent is forced to amend;

 The amended pleading may also be defective;

 May cause opponent to lose confidence, even if successful, depending on the comments of the court

. For example, when the matter may be allowed to proceed, in what is clearly a very close call.

HUNT V. CAREY CANADA INC. (1990, SCC)

 If there is a chance P might succeed, should not be “driven from judgment seat”

 Facts:

 P was electrician exposed to asbestos during employment; sues defendant mining companies for negligence AND alleges that all companies conspired to withhold info about dangers of asbestos; Carey Canada applied to have action against it, based only on conspiracy allegation, dismissed on the basis that it disclosed no reasonable cause of action; TJ allowed motion; CA allowed appeal; D appealed

 Issue:

 In what circumstances may a statement of claim(or portions of it) be struck out?

 Held:

 Only where, assuming facts stated in statement of claim can be proved, it is “plain and obvious” that P’s statement of claim discloses no reasonable cause of action

 Analysis:

 Comprehensive review of case law in England, appellate courts in BC and Ontario and SCC

 Dyson: “…our judicial system would never permit a P to be ‘driven from the judgment seat’…w/o any court having considered his right to be heard, excepting in cases where the cause of action was obviously and incontestably bad” (quoted para 21)

 If there is a chance P might succeed, should not be “driven from judgment seat”

 Only if action certain to fail b/c contains some radical defect should the relevant portions be struck out

 Neither the complexity of the issues, the novelty of the cause of action nor the potential for D to present a strong defense should prevent P from proceeding with case

 Has been the held that the tort of conspiracy MAY be found in cases where D conduct is unlawful, conduct directed at P and Ds should know that injury to P is likely to and does result – so NOT plain and obvious that P has no reasonable claim

 Not appropriate at this stage to engage in detailed analysis about strengths/weaknesses of Cdn law on tort of conspiracy

 Would be inappropriate to deny P opportunity to convince court that tort of conspiracy should apply to these facts

 Fact that pleading reveals “an arguable, difficult or important point of law” cannot justify striking out part of the statement of claim…may well be critical that action be allowed to proceed…to ensure common law evolves

 Cause of action in conspiracy not precluded on ground that P also alleges another cause of action. Inappropriate to get into Q of whether Ps allegations concerning other torts will succeed.

R V. IMPERIAL TOBACCO (2011, SCC)

 Facts:

 IT being sued by prov gvt to recover health care costs of tobacco-related illnesses and by consumers of “light/mild” cigarettes for damages; IT issues 3P notices to fed gvt claiming contribution and indemnity; Canada brings motion to strike 3P notices

 Issue:

 Is it plain and obvious that 3P claims disclose no reasonable cause of action?

 Held:

 YES – claims should be struck out

 Analysis:

 On a motion to strike, a claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action (aka there is no reasonable prospect of success) (para 17)

 The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding (para 25)

 Power to strike out claims promotes two goods - efficiency and correct results - BUT must be used with care.

 NOT DETERMINATIVE that the law has not yet recognized the particular claim. The approach must be generous, and err on the side of permitting a novel but arguable claim to proceed to trial. (para 21)

 IT argued that motion to strike should take into account not only facts pleaded but also the possibility that evidence would reveal more as case progressed – this misunderstands what motion to strike is about. The judge cannot consider what evidence adduced in the future might or might not show. (para 23)

 Here, it is plain and obvious that none of the tobacco companies’ claims against Canada have a reasonable chance of success b/c the general requirements for liability in tort not met.

 Canada did not owe a prima facie duty of care to consumers (lack of proximity) and core gvt policy decisions cannot ground claims for negligent misrepresentation, failure to warn or negligent design

 Canada also cannot be considered manufacturer or supplier; and unreasonable to infer that Canada was promising to indemnify industry for acting on the requirements of gvt regulation

 Contrasting with Hunt:

 Mere fact that case is weak or unlikely to succeed not enough to throw it out – if there are important legal questions to be answered/resolved the rule for striking pleadings ought not to be applied

SUMMARY TRIAL

See Rule 9-7 Summary Trial in Appendix.

CLASS DISCUSSION

 Procedure – Why is it before a 5 person panel?

 5 person panel to straighten out the confusion because there had been disagreement on the Court of Appeal before

. CoA had said things they wanted to later reverse and you cannot reverse things in the Court of Appeal without a 5-person panel

. You want to say the Court made a mistake or chose the wrong strand of authority – something that causes the court to rethink their previous judgment

. Rule 18A

 Policies for Summary Trials

 the problems for summary trial is that one can raise a defence right way

. Rule 18 or 9-6/7, the summary judgment rule test “is there a reasonable bona fide issue in dispute?”

 Saves court resources rather than going to a full trial in every case

. Court wants this rule to work – do not want trials to be put off for 5-10 years, and they will be if there is no way to take some of the steam out of the system by having summary trials so ones that aren’t summary will be heard within peoples’ lifetimes.

 Policy: We cannot have perfect justice. You do not get perfect justice anywhere.

 The Essential Problem: Problems of going to trial in this particular case

 This particular case was not suitable for disposition on rule 9-6/7

 Advance of money or loan on executing on the various accounts the individual or companies held – there was a complete gap in the evidence between the two sides. Credibility issues – one side is saying things that are flatly contrary to the other

. The essential issue of the investment firm right to execute on the shares and certain accounts is a complete conflict

. We are not saying you can’t have conflicting affidavits, we are saying you can’t in this particular case

 Affidavits are all drafted by lawyers unless the person is self-represented

. It changes the evidence and it is coming closer to the other sides’ evidence. Cross examination is a powerful tool. We can’t have judgment because of the split on these essential issues on the facts. If we have cross- examination we are confident that will allow grounds to decide the case

. Cross-examination on an affidavit – the best way to do it is before the judge. It is relatively rare because that takes time too

 Summary Judgment vs. Summary Trial

 Judgment : liquidated claim, and creditor says on __ date, we entered into a loan agreement, and X dollars were advanced on terms they would repaid at a certain date, and payment would be made

. …payment was not made, and therefore the D is in breach of the loan agreement, and we want judgment (the entire loan paid back, and all interest will be paid back as well)

. Arguing there is no triable issue

 Summary judgment and summary trial require evidence

. Striking under 9-7 1A, you cannot have evidence. You just put the pleading with the material facts

 Summary trial is when material facts can be contested

 Discussion on Reasons for Going to Trial

 If this rule is so efficient (summary trial), why would you not have all of the trials that way and save the TP a lot of money, and have everything get done a lot faster

 Factors that are attractive about going to trial

. The power of cross examination – limited extent on affidavits. When you go to trial you have a real trial and judge who cannot be prompted by their counsel as they might be at summary. At trial, the counsel who object to cross examination are frowned upon. If you believe your case crafted in a summary fashion by lawyers that the opponents could smoke it by a court, you want to see those witnesses in the box where they don’t have any support

. Sympathetic Witness: want witnesses to show story because they are telling the truth. If they are put on the stand, they are going to be believed and the judge is going to feel sympathy

 Case that is weak on law, but you will have everyone on the jury sobbing when your witness gets on the stand would be a reason to go to trial, rather than summary judgement

. Get to the eve of trial – sometimes would prefer getting all that information and having a chance to settle because anything can happen at trial. It all depends on the trial, and how your witnesses perform.

 Conclusions on “The Procedure”

 Chambers judges should be activists and try to resolve these cases

. “Don’t be timid” – it’s good to get things done faster and cheaper

 If you are going to put on an 18-A, 9-7, you have to think carefully about how to make it a professional job

. Written in English, attach core of the case and not a bunch of evidence that contains marginal evidence

. Legal argument that highlights the material facts and tells the court why this is a case or not a case that should be dealt

. Have materials filed in a timely fashion and tabbed and highlighted in a way

 Concurring judgment of Lambert: Rule 18A was to enhance judicial process by preventing delay…not intended to prevent justice- given an enhanced….partial evidence

. Goes along with majority BUT it must be plain that as a guiding principle for chambers judges, don’t let anybody who you know in your heard is using this mechanism to win at trial. If you think that justice denied by doing it in a short version (summary), don’t do it.

 History of Summary Judgment

 The summary judgment rule was historically used for liquidated claims – had to know how much money you wanted, not just general damages. If the other side didn’t show they had a defence to it, it was a way of moving things along. Every debtor wants time, and every creditor wants the money fast.

. You try to hurry it along if you are the plaintiff creditor

INSPIRATION MANAGEMENT V. MCDERMID ST. LAWRENCE LIMITED (1989, BCCA)

 Facts:

 Ps brought motion for summary judgment under old R. 18A application; chambers judge dismissed application b/c considered the test to be applied under this rule precluded her from giving judgment unless it was “clear that a trial in the usual way could not possibly make any difference to the outcome”.

 Issue:

 Did the chambers judge err in applying this test, and if so what is the proper test under R. 18A?

 Held:

 YES – chambers judge applied incorrect test

 Analysis:

 R. 18A authorizes judge in chambers to give judgment in any case where he can decide disputed Qs of fact on affidavits or by any of the other proceedings authorized by the section UNLESS unable to do so on the whole of the evidence OR it would be unjust to decide the issue in such a way

 Raising a triable issue or an arguable defence will therefore not always defeat a R. 18A application

 “the volumes of litigation presently before our courts, the urgency of some of the cases, and the cost of litigation do not always permit the luxury of a full trial with all of the traditional safeguards in every case, particularly if a just result can be achieved by a less expensive and more expeditious procedure”

 “the procedure prescribed by R 18A may not furnish perfect justice in every case, but that elusive and unattainable goal cannot always be assured even after a conventional trial”

 in deciding if unjust to give judgment, chambers judge may consider amount involved, complexity of matter, urgency, prejudice likely to arise by reason of delay, cost in relation to amount involved (proportionality), course of proceedings etc

 TJ NOT OBLIGED to remit case to trial list just b/c there are conflicting affidavits: (1)can make necessary findings of fact on conflicting evidence (eg. where other admissible evidence) or (2) could employ other procedures to resolve the issue (eg. order x-exam)

 R18A to play increasingly important role – and not just in simple or straightforward cases

PRODUCTION OF DOCUMENTS

See Rule 7-1 Discovery and Inspection of Documents in Appendix.

CLASS DISCUSSION

 Summary Disposition Principles

 Striking the pleadings – Rule 9-5

. subrule (1)(a) is used frequently; you take the pleading, whether D or notice of civil claim, and say it does not add up to reasonable cause of action

 the test is whether it is “plain and obvious” that the pleading discloses discloses no reasonable cause of action or defence

 this is an attack on the pleadings, not on evidence

 overarching test is whether opposing party can succeed as a matter of law

 no evidence required for this

. the other three subrules (b)(c)(d) are used from time to time and sometimes together – often with the theme of abuse of process

 For these, you almost always do have evidence (affidavits) on the motions

 Summary judgment – Rule 9-6

. Not used very often anymore because, rule 9-7 has now largely occupied the field

. Reasons to use summary judgment might be:

 Notice periods are less than summary trial

. Judge is deciding whether there is a genuine/bona fide triable issue

. Judge is not deciding issues of fact and law

 Summary trial – Rule 9-7

. If the chambers judge can find the material facts, then must give judgment unless unjust to do so

. Court can decide contested material facts

 Document Production

 Need to have routines in practice life that are both efficient and ethical for document discovery

 XY Case (brief below)

 Gives you almost everything you need to have a sensitive approach to document discovery

 This is an application under 7-1(14)(b) for production of documents to Peruvian Guano standard

. This is a really demanding test for litigants in terms of what they have to produce – must produce any documents that may lead to a train of inquiry which directly or indirectly may enable the party to advance its own case or damage the others

. So if there is an inkling that it is relevant or may lead to something relevant, need to produce it

. This test lead to a great expenditure of time and money in cases with large numbers of documents

. Rule came out of a system w/o oral discovery

. We now have oral discovery and a lot more documents

 Courts and litigants can no longer afford it

. Rule not critiqued on basis of it being unfair – in fact would likely facilitate search for truth – rather critique on basis of cost/efficiency

. So legislators have now changed the standard

. But these litigants are looking to bring this standard “back to life”

 Party ultimately unsuccessful in getting the order

. Because there had been an Anton Pillar order earlier in the case that corralled documents to make sure they wouldn’t be destroyed; this motion brought out of fear and court should not protect the fear of litigants

. Anton Piller order provides the right to search premises and seize evidence without prior warning. This prevents destruction of relevant evidence, particularly in cases of alleged trademark, copyright or patent infringements.

 Party that brings motion argues that there may be cases where Peruvian Guano standard is necessary where not enough info to request specific documents – like in cases of fraud as here

 This judge wanted to clarify the law in this area

. Says court has jurisdiction to make the order, but declines to give the order sought

. Court through inherent jurisdiction to control own process; could make document order to suit particular facts and circumstances that stretch the new rule, so that it even looks like Peruvian Guano, even though they refused to do so here

 Why was there a need for an Anton Piller order in this case?

. Theft of confidential info around proprietary technology; concern that Ds were misusing confidential info to profit;

. T1: judge in case 1 found that there was fraudulent conduct concerning IP and confidential info; T2: after this finding, there is a continuation of these fraudulent activities T3: Anton Piller order, to seize documents and protect them from destruction

 New TEST: you must initially produce any document that could be used at trail to prove or disprove a material fact

 Consider this in relation to Rule 1-3 and concept of proportionality

 Rule 1-3 **VERY IMPORTANT RULE**

 (2) securing the just, speedy and efficient determination of dispute on its merits, includes, as far as it practicable:

. conducting the proceeding in ways that are proportionate to the amount involved in the proceeding, issues in dispute and complexity of proceeding

 Applying this to a hypothetical you can see the arguments that either side would make: one for importance of full disclosure for justice, the other for expediency/simplicity

 This was never the case with Peruvian Guano standard – same standard applied to all cases regardless of complexity etc.

 Policy considerations:

 Should cost be a factor when interpreting a procedural rule? Should the application of rules differ depending on size, scope, type and potential complexity of litigation?

. Consider Rule 1-3 Objects of Rules

 The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

 Proportionality

 Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

 the amount involved in the proceeding,

 the importance of the issues in dispute, and

 the complexity of the proceeding.

 How could a judge apply the rules without considering the practical implications?

SCOPE OF DOCUMENTARY DISCOVERY

PERUVIAN GUANO STANDARD

 “every document relates to the matters in question in the action which…it is reasonable to suppose contains information which may…either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary”.

 Document qualifies “if it is a document which may fairly lead [the party requiring the affidavit] to a train of inquiry, which may have either of these two consequences”

PETER KIEWIT SONS CO OF CANADA LTD V BC HYDRO (1982, BCSC)

 Leading case on whether you always had to adhere closely to Peruvian Guano test

 P must establish PF case that something relevant will be uncovered before further affidavit/inspection will be ordered

 Facts:

 Ps entered into K with BC Hydro for construction of segment of large transmission line; massive project involving various Ks for different segments of the line; BC Hydro to supply steel for project; P’s project goes awry and alleges BC Hydro did not properly manage supply of steel

 Issue:

 Is P entitled to an order for additional document production, including docs relating to other BC Hydro Ks?

 Held:

 No – Ps must choose smaller target within BC Hydro

 Analysis:

 BC Hydro has already furnished about 30,000 documents and provided additional 12-page inventory of docs it is prepared to make available for inspection

 BC Hydro says it has produced all documents relating to the operation of the steelyard in connection with this and other Ks

 P not entitled to search of everything to see if there is anything possibly relevant that may be resting there – would be extensive undertaking and no likelihood has been established that anything worthwhile will be found

 Court held that “the rules of court are our servants, not our masters” and declined to follow the Peruvian Guano case

 Not permissible or reasonable to require a party to incur enormous expense in what may be a futile search for something which may not exist

 Ps must establish PF case that something relevant will be uncovered before further affidavit/inspection will be ordered

 “the time has arrived…for the court to become concerned about the cost of litigation subject…to the right of any party to the Court’s assistance in the reasonable preparation of his claim or defence”

 Note: see Lord Wolf’s report “Access to Justice” p.548 – judicial management and discretion to ensure discovery limited to what is really necessary; recommendation for “standard discovery” vs. “extra discovery”

PRZYBYSZ V. CROWE (2011, BCSC)

 Facts:

 P claims damages from MV accident including compensation for past and future income loss; D admits liability but pleads pre-existing conditions; P has delivered medical info including clinical notes/records from physician for two year period prior to accident; D applies for order to obtain MSP printout, complete copy of EE records and unedited RMT records

 Issue:

 Should the court grant the orders for document discovery?

 Analysis:

 Only after a demand is made under Rule 7-1(11) for docs and the demand for production is resisted can a court order production under Rule 7-1(14)

 Court must exercise discretion in accordance with objective of SCCR

 Duty on party requesting document to provide explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed”

 Duty on party rejecting request “burden not met by stating that documents will not be produced simply because of the introduction of the SCCR)

 If court decides broader document discovery appropriate, some evidence of existence and potential relevance of those additional documents will be required (eg. examination for discovery)

 “The court must still be wary of condoning or authorizing a fishing expedition”

 MSP records not ordered: plea of pre-existing injury appears to be pro forma; must demonstrate connection beyond “mere possibility”; if wrong discretion exercised not to require this b/c more proportional that these issues be explored at examination for discovery

 Employment records not ordered: huge scope, at best a fishin expedition

 Application for Unedited RMT records adjourned: to allow P to prepare affidavit deposing to nature of privilege claimed in edited records

XY, LLC V. CANADIAN TOPSIRES SELECTION INC. (2013, BCSC)

 Court has inherent jurisdiction to order broader disclosure than what is required under Rule 7-1 in limited cases

 Facts:

 In previous action XY alleged Ds improperly used proprietary info and technologies; awarded judgment and found that Ds had failed to produce docs and some had been deliberately altered to mislead P; new case with additional causes of action incl. conspiracy; P applied for Anton Piller order which was granted; revealed concerns about extent to which certain Ds were continuing to improperly use info; P applied under Rule 7-1(14)(b) to have D produce all documents in their possession or control to Peruvian Guano standard; attach non-exhaustive 12-page list of docs “Schedule A”; D objects and says P did not adhere to requirements of rule and significant portions of Schedule A inappropriate

 Issue:

 Is a party who is unable or, for valid reasons, unwilling to ID precise categories of additional documents that it seeks nevertheless able to secure broader document production? If so, what is the basis for such production?

 Held:

 YES – court has inherent jurisdiction to order broader disclosure in limited cases

 Analysis:

 Special circumstances in this case insofar as Ds from whom broader disclosure is sought found to have misled court and frustrated litigation and discovery in earlier action

 Rule 7-1(1) changed the test for documentary relevance at first instance by requiring listing only of documents that could be used at trial to prove or disprove a material fact and documents the disclosing party tend to rely upon at trial

 Two-tier process of disclosure: (1)in first instance, party not obliged to make exhaustive list of docs which in turn assists the “train of inquiry” (2) only after demand made under 7-1(11) and demand is resisted can court order production under 7-1(14)

 Salutary objects of 7-1(10)-(14): promotes dialogue and information resolution of document production disagreements; where not possible support targeted litigation; narrows the issues and particularizes documents sought before application is made; requires sufficient particularity so that reasoned answer to request can be made

 There will be some limited cases where party simply unaware of a doc or class of docs that are relevant and where such docs would be ordered/produced if party could ID them

 “reasonable specificity” encompasses varying levels of specificity depending on nature of the case

 production on basis of materiality alone generally adequate BUT broader production should remain available in appropriate circumstances

 while court should be wary of fishing expeditions, must also be weary of too readily impeding further discovery of documents

 what evidence will support order for further production will vary from case to case

 “each case requires a proper balancing and recognition of the object of proportionality, the nature of the particular case and the causes of action it advances, and the evidence advanced on the application itself”

 Rule 7-1 does not oust the court’s inherent jurisdiction with respect to examinations for discovery and production of docs

 Cases where court will be called upon to exercise its inherent jurisdiction will be limited – confined to those cases that give rise to extenuating circumstances

 Here judge acknowledges would have acceded to request for further production BUT FOR Anton Piller order already issued

PRIVEST PROPERTY V. W.R. GRACE (1992, BCCA)

 Facts:

 Ds manufactured and sold asbestos fireproofing to be used in building; no warnings with respect to product; installation of product caused physical damage to Ps property and contaminated bulding; undertook process of removing and replacing all fireproofing; Ps claim for negligence, failure to warn, negligent misrepresentation etc; D claims material was safe and, in alternative, Ps should have know that product contained asbestos which could be hazardous and that asbestos-free product available; D also party to actions in US; in 1982 D gathered all docs that might be related to claims re: asbestos; 12 million docs; sorted into categories and put relevant and producible docs in one place and all other docs in another; counsel for P discovered some of the documents for which privilege was claimed were not privilege in BC law; sought production of those docs

 Issue:

 Have the Ps established a right under Rule 26 to “go behind the list of documents” provided by D?

 Held:

 No

 Analysis:

 “The affidavit of documents is conclusive against the party seeking discovery, unless it can be shown…that other documents exist in his possession or power which are material and relevant to the action, in any of which cases a further affidavit may be required”

 Solicitors bear grave responsibility for accuracy of affidavit of documents – ensure clients have made full and proper disclosure

 Rules DO NOT empower a judge to require a party to give access t his opponent to documents which are neither in his list nor in an affidavit required by Rules nor in one of the documents listed

 No power to make order which is really authorization for a search

EXAMINATIONS FOR DISCOVERY

PURPOSES OF EXAMINATION FOR DISCOVERY

 Permits proceeding to move from mere paper allegations of lawyers to sworn statements of parties themselves

 Generally:

 To enable examining party to know the case to meet

 To procure admissions to enable one to dispense with formal proof

 To procure admissions which may destroy an opponent’s case

 To facilitate settlement, pre-trial procedures and trials

 To eliminate or narrow issues

 To avoid surprise at trial

 “These Rules form a scheme to provide procedures through which knowledge of all relevant facts is available to both sides so that each will know his opponents case and be better able to evaluate his own and so to assist in the early resolution of litigation either by settlement or shorter trials” (Perini Ltd v Parking Authority of TO)

 enables examining party to pin down W by answers on discovery and assess effectiveness/believability of own client and opposing party

USES AT TRIAL

 Two basic uses:

 Party may read into evidence any part of examination for discovery or adverse party

 Evidence given on examination for discovery may be sued to purpose of impeaching the deponent in same manner as any PIS

 Examination of non-party W may not be read into evidence as admission but may be used to impeach non-party should they testify

 These uses condition the conduct of the examination. Counsel seeking to:

 Get answers that can be used as admissions

 Tie the W down to a story

WHO MAY BE EXAMINED

 Party may examine for discovery any other party “adverse in interest”

 Special provisions for corporations

RULE 7-2 (1)-(4)

 Examination of parties

 (1) Subject to subrule (2), each party of record to an action must

. (a) make himself or herself available, or

. (b) if any of subrules (5) to (10) apply, make a person referred to in that subrule available,

 for examinations for discovery by the parties of record to the action who are adverse in interest to the party subject to examination.

 Limitations

 (2) Unless the court otherwise orders, the examinations for discovery…by any other party of record who is adverse in interest must not, in total, exceed in duration

. (a) 7 hours, or

. (b) any greater period to which the person to be examined consents.

 Considerations of the court

 (3) In an application under subrule (2) to extend the examination for discovery period, the court must consider the following:

. (a) the conduct of a person who has been or is to be examined, including

 (i) the person's unresponsiveness in any examination for discovery held in the action,

 (ii) the person's failure to provide complete answers to questions, or

 (iii) the person's provision of answers that are evasive, irrelevant, unresponsive or unduly lengthy;

. (b) any denial or refusal to admit, by a person who has been or is to be examined, anything that should have been admitted;

. (c) the conduct of the examining party;

. (d) whether or not it is or was reasonably practicable to complete the examinations for discovery within the period provided under subrule (2);

. (e) the number of parties and examinations for discovery and the proximity of the various interests of those parties.

 Oral examination on oath

 (4) An examination for discovery is an oral examination on oath.

MAINSTREAM CANADA V. STANIFORD (2011, BCSC)

 Rule 7-2(3)(a) requires intentionality; always need to consider proportionality

 Facts:

 P is second largest producer of farmed salmon in BC; suing D for defamation; alleges 52 defamatory statements related to 14 topic areas as part of “Anti-Salmon Farming Campaign” posted on D’s website; uses graphic imagery to compare Mainstream to tobacco producers/manufacturers; D was examined for 7 hours; P now seeks order to require D to attend further examination for discovery for additional 14 hours; P says D’s answers were evasive, irrelevant, unresponsive and not concise; D says P only began questioning about defamatory words at Q 621

 Issue:

 Should the court exercise discretion to extend the examination for discovery?

 Held:

 YES – but only additional 8 hours

 Analysis:

 Court found D NOT being intentionally unresponsive or failing to provide complete answers – though would have benefitted from having counsel at exam for discovery

 So requirements under Rule 7-2(3)(a) not satisfied by P

 BUT given the many allegations/topics, was not reasonably practicable to complete examinations within period provided – Rule 7-2(3)(d)

 Keeping in min the principle of proportionality, fact that D will likely have counsel at continuation of examination and P has obligation to conduct efficient examination – order for 8 further hours

RULE 7-2 (5), (22)

 Examination of party that is not an individual

 (5) Unless the court otherwise orders, if a party to be examined for discovery is not an individual,

 (a) the examining party may examine one representative of the party to be examined,

 (b) the party to be examined must nominate as its representative an individual, who is knowledgeable concerning the matters in question in the action, to be examined on behalf of that party, and

 (c) the examining party may examine

. (i) the representative nominated under paragraph (b), or

. (ii) any other person the examining party considers appropriate and who is or has been a director, officer, employee, agent or external auditor of the party to be examined.

 Person must inform self

 (22) In order to comply with subrule (18) or (19), a person being examined for discovery may be required to inform himself or herself and the examination may be adjourned for that purpose.

DANN V. DHALIWAL (2012, BCSC)

 Where Ps have commonality of interests, usually restricted to examining one representative of corporate entity

 Facts:

 Mother and infant son injured in MV accident; both commenced proceedings; claims vs. Abbotsford, the Province and ISL Engineering and Land Services re: design of intersection, and vs. EAM re: care and maintenance of roads; no material differences in claims brought by Mother and son; mother and son seek right to examine separate representatives of EAM and the Province

 Issue:

 Should the mother and the son be allowed to examine different representatives of the same corporation at their respective examinations for discovery?

 Held:

 NO – complete commonality of interests

 Analysis:

 Purpose of examination for discovery NOT to give an opposing party opportunity to examine all the Ws adverse in interest or who may have knowledge touching upon one of the principle issues in the case (Lord v Royal Columbian Hospital)

 Fact that D is corporation should not radically alter the nature and purpose of examination for discovery (Nesbitt v Midland Walwyn Capital)

 Corporate officer who thoroughly informs him/herself on corporation’s activities should be able to respond to all concerns. If unable to adequately respond, P entitled to seek application of a second rep (Nesbitt v Midland Walwyn Capital)

 Where multiple parties, no entitlement to examine second representative unless separate issues between those seeking to examine (Westfair Foods Ltd v Coopers & Lybrand)

 Scope of the examination may be dependent upon whether or not the underlying facts in respect of each of the claims is so different that unrestricted discoveries should be allowed (Jordan Development Corp v Canacord Capital Corp)

 “Rule 7-2 does not give a party an unlimited right to discover the representative of it’s choice…In the case of multiple parties who have a commonality of interest, they will in the first instance usually be restricted to examining a single representative of the corporate entity to whom they are adverse in interest. If that representative fails to provides adequate information, the discovering parties may apply for leave to exam a second representative” (para 24)

 In this case, complete commonality of interests therefore not entitled as of right to examine separate reps

 Note: DOES NOT FOLLOW that Ps must conduct examination at the same time; failure of one litigant to examine on same day DOES NOT preclude late examination

RULE 7-2 (18), (23), (25)

 Scope of examination

 (18) Unless the court otherwise orders, a person being examined for discovery

. (a) must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and

. (b) is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

 Response may be provided by letter

 (23) If a person is required to inform himself or herself under subrule (22) in order to respond to one or more questions posed on the examination for discovery, the examining party may request the person to provide the responses by letter.

 Objections

 (25) If a person under examination objects to answering a question put to him or her, the question and the objection must be taken down by the official reporter and the court may

. (a) decide the validity of the objection, and

. (b) order the person to submit to further examination and set a maximum duration for that further examination.

NWACHUKWU V. FERREIRA (2011, BCSC)

 Counsel for the party being examined should NOT INTERFERE except where it is clearly necessary

 Facts:

 P suffers injuries in MV accident; D admits liability but denies alleged injuries or in the alternative claims pre-existing or subsequent injuries; in first examination of P counsel for D made 57 objections to questions asked and numerous other interruptions; at continuation of discovery made 48 objections and many other interruptions; in almost every case of objection simply said “I object to that Q” with no reasons given; examination not completed; trial commenced then adjourned; further discovery of P by consent with 12 objections; D seeks order requiring P to attend further examination for 7 hours; P submits written answers to 45 Qs objected to; D says P’s counsel improperly interfered with exam for discovery and will not accept written answers

 Issue:

 Should D be entitled to continuation of discovery?

 Held:

 Yes

 Analysis:

 Counsel for the party being examined should NOT INTERFERE except where it is clearly necessary to resolve ambiguity in a Q or resolve injustice

 Hands-off approach is in accord with the objects of the SCCR – obligation on counsel for party being examined to avoid unduly objecting or interfering in a was that wastes the time available under 7- 2(2)

 Where intervention is appropriate, the proper conduct of counsel is to state the objection to the form of a question and the reasons for the objection

 Relevance: counsel should have broad discretion to frame appropriate Qs for examination of the P; here counsel for P took unduly narrow conception of relevance

 Confusion: If Q is difficult to answer, it is for the W, not the counsel to deal with that by stating it – can then be cross-examined on that difficulty; counsel should not, as here, object to Qs on the basis that they may be better stated – does not serve anyone’s interests

 Repetition: court must me slow to interfere when tactic of repetition falls short of intimidation; “asked and answered” not appropriate objection in Canada; this objection is generally untenable

 Inadequate Foundation: there is no requirement that a foundation be laid for a Q

 Compound Qs: objection should be used sparingly; objections in this case were obstructive, time consuming and unproductive

 Privilege: P cannot be asked what counsel told him about claim or how the case will be framed at trial; Qs that intrude upon privilege are generally objectionable; Qs in this case did not intrude privilege – simply sought P’s own appreciation of effects of injury

 In this case, more injustice would be done by depriving D of essential preparatory step than might be occasioned by continuation of discovery

 Found significant obstruction by P’s counsel – leave granted for 4.5 hours of further examinations with no limitation on the matters to be canvassed.

 Counsel for P prohibited from discussed with P any Qs touching on matter which have been put to P at examinations for discovery to date and to which objection has been made

PRE-TRIAL DISCOVERY PROCEDURES

See Rules 7-3 Discovery By Interrogatories, 7-7 Admissions, and 7-8 Depositions in Appendix.

CLASS DISCUSSION

 Problem of unrepresented litigants

 Though you make think this is good for your and your client, often draws out the process and increases your client’s costs (everything takes longer)

 Interrogatories

 Hayley says always consider proportionality on these motions. Also consider, Is the application for documents genuine? Is it simply a tactic to delay, drive up costs? Is it a fishing expedition?

 One of the ideas behind interrogatories is that it narrows the issues and will save time in long run. If proportionality is a them, why would you not want to allow it if the party can show there will be some time-saving involved?

 Whether or not interrogatories will take on greater resonance in new rules is something that is yet to be determined

 Problem with interrogatories is also that it is the lawyer’s who will be responding them – so evidence is filtered – unlike examination for discovery which allows for statements under oath by parties themselves

 In drafting interrogatories – try to think in terms of themes

. Eg. Qs 1-12 deal with history of corporation. Consider why these questions are necessary and state these reasons. May also want to state why you wouldn’t be able to get same result on exam for discovery

 Depositions

 out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes

 need an order for depositions

 Needs to be some reason why you are taking evidence that will be used at trial

 What use is this new test that you can, instead of deposition transcript, have video conferencing at trial?

SUMMARY OF THE LAW UNDER 7-1

 (Credential Securities, at para 24-27)

 Initial production obligation under Rule 7-1(1)(a)(i) is limited to what is required to prove or disprove a material fact

 Pleadings govern the determination of issues of relevance

 Rule 7-1(10) allows the opposing party to issue a written demand requiring the listing party to amend the original list and produce documents that should have been disclosed under 7-1(1)(a)(i)

 Rule 7-1(11) allows the opposing party to issue a written demand requiring the listing party to amend the list and produce documents which ought to be disclosed under the test “close to” that set out in Peruvian Guano

 Will generally require some evidentiary support to provide an “air of reality” between the document sought and the issues in the action.

 Need to prevent unwarranted “fishing expeditions” based solely on pro forma pleadings

 Both the demand and the response should be set out in writing. Whether they provide sufficient particularity is matter of court’s discretion

 If application brought under 7-1(13) for listing or production of documents, court may either order compliance, excuse full compliance or order partial compliance: Rule 7-1(14)

 Objectives of the SCCR, including proportionality may be taken into account by the court when exercising its discretion under 7-1(14) – can be applied either to expand or restrict production of documents

CREDENTIAL SECURITIES V. QTRADE (2012, BCSC)

 Need to apply proportionality in making orders for production of additional documents

 Facts:

 P (Credential) and D (Qtrade) are competing wealth management/brokerage orgs; both operate password protected websites to allows their customers access to tools, guides, docs etc; personal D left work at Credential and went to Qtrade; discovered usernames and passwords still operational; Credential claims Qtrade, through improper access of EEs, misappropriated confidential and proprietary info; Qtrade denies using material from website at all and say claim was brought to damage Qtrade’s business; P brings application for amended list of docs to include: all docs created by Qtrade that are “reasonably comparable” to docs improperly accessed (incl related drafts, notes, correspondence), all docs relating to development and revision of D’s system, copies of business proposals sent by D to Credential customers, copies of EE files, and copies of any communications

regarding illegal access of P’s website; D brings counterclaim for amended list of docs to include: all docs demonstrating access by Qtrade to P’s site, all docs that could prove or disprove facts in Qtrade’s counterclaim; all docs that could prove or disprove that docs were confidential and proprietary

 Issue:

 Should the court exercise discretion to grant P’s application and/or D’s counterclaim under 7-1?

 Held:

 Both applications granted in part

 Analysis:

 Documents that could be used to prove or disprove a material fact were to be produced

 Documents that were not relevant were not to be produced

 Where breadth of documents sought was not proportionate to claim, production not ordered

 Where opposing party claimed all relevant documents produced, the completeness of production was left to be canvassed on examination for discovery

REQUIREMENTS FOR AND LIMITS ON INTERROGATORIES

 (Hou, cited in Loo v Alderwoods, at para 16)

 Must be relevant to a matter in issue in the action

 Are not to be in the nature of cross-examination

 Should not include a demand for discovery of documents

 Should not duplicate particulars

 Should not be used to obtain names of Ws

 Narrower in scope than examination for discovery

 Purpose to enable party delivering them to obtain admission of fact in order to establish case and provide factual foundation upon which cross-examination can proceed

 Only one means of discovery. Court may permit party interrogated to defer response until other discovery processes have been completed

LOO V. ALDERWOODS GROUP CANADA INC. (2010, BCSC)

 Open to court to strike all of the interrogatories if substantial number of them are objectionable

 Facts:

 P sought damages for wrongful dismissal, conspiracy, fraudulent misrepresentation and interference with economic relations; brought application for order compelling Ds to answer lengthy interrogatories (more than 1400 Qs); Ds bring application to strike interrogatories

 Issue:

 Should the interrogatories be ordered or struck?

 Held:

 P’s application dismissed, D’s application granted

 Analysis:

 Interrogatories can only be served with leave or court or consent of party to whom they are addressed

 If party objects to interrogatories, they can apply to court to strike them out

 Though preferable for D to ID Qs objected to and for court to consider objection to each Q, not practical with interrogatories of this scale – open to court to strike all of the interrogatories if substantial number of them are objectionable

 Many of interrogatories in this case were improper: number of Qs were in the form of cross examination; others did not seek admission of facts but invited conclusions of law; some were unclear or of marginal relevance; others were unnecessary; large number of Qs too broadly worded and impossible to answer truthfully w/o unreasonably widespread inquiries; number of Qs related to matters that were not proper subject for discovery; unclear what P was seeking with certain Qs and even where some Qs properly addressed issue, were combined with improper or unnecessary ones

 Interrogatories might contains Qs that should be answered but given volume and the number of objectionable, improper Qs – should be struck

 Examination for discovery would be more efficient and effective method of discovery

SEDER V. INSURANCE CORPORATION OF BC (2011, BCSC)

 Where requirements for deposition evidence not met, but costs of attending trial disproportionate, videoconferencing can be ordered

 Facts:

 P brought action for damages against D; P was employed as server in Calgary and supervisor had evidence of EE and effects of injuries on it; supervisor reluctant to travel to Kelowna for trial but willing to attend deposition; D was agreeable to video presence at trial but not deposition evidence; 3P insurer brought application for leave to examine W by video deposition and use as evidence at trial

 Issue:

 Should application for leave to examine W by video deposition be granted?

 Held:

 Application dismissed

 Analysis:

 Rule 7-8(3) sets out grounds court must take into account

 Not necessary to meet ALL the criteria in 7-8(3), may be circumstances where one factor is sufficient (Abermin)

 Purpose and intent of rule is to strike balance between fundamental principle that Ws should testify live before court and preservation of evidence which might not be available at trial. Emphasis is on availability of evidence, not convenience of counsel (Abermin)

 Difficulties with deposition evidence: undesirable to take trial evidence out of normal order; evidence not taken live and receipt not controlled by TJ; preferable that objections ruled on before evidence given (risk of substantial prejudice) (Byers)

 Insufficient grounds existed in this case to order deposition and use of evidence at trial

 Supervisor's inconvenience for having to attend trial was no more than usual inconvenience of attending trials — General inconvenience is not sufficient to order deposition

 There was no evidence that supervisor was dying or ill and would be unable to testify

 Supervisor's residence in another province was not sufficient to grant order – no evidence that she would not surrender to jurisdiction

 It was possible to have supervisor testify by video conferencing 82 Civil Procedure: Drafting

 Expense of bringing supervisor to trial was not prohibitive but was also not insignificant (costs for minimum 3 days travel)

 Videoconferencing would be appropriate and proportionate procedure given brevity of evidence offered by supervisor

GILL V. A&P FRUIT GROWERS LTD. (2011, BCSC)

 Deposition may be more favourable than videoconferencing in some cases

 Facts:

 P suffered injuries on property owned/occupied by Ds; at liability trial D found liable to P and P found contributorily negligent; P sought to tender in evidence at damages trial reports by surgeons as expert opinion evidence; D counsel did not consent if physician Ws did not attend trial for x- examination, but both would be out of country; at case planning conference P applied for order directing that physicians be examined under oath before trial and that this record of examination be tendered as evidence at trial

 Issue:

 Should application for leave to examine W by deposition be granted?

 Held:

 Application granted

 Analysis:

 Application for taking W evidence by deposition can be properly heard at case planning conference under Rule 5-3

 Experts here will be beyond jurisdiction at time of trial and will be inconvenient to attend trial even by video conference

 Cost of two long-distance video conferences likely to be more expensive than two local depositions and would be more difficult to arrange

 Evidence taken by videoconference often compares unfavourably to evidence taken by deposition – no counsel present, court cannot control setting in which W is situated and often time delays

 Important to ensure trial proceeds without complication and possible threat of adjournment that may result from unsuccessful videoconferencing

ACCESS TO JUSTICE

See Jerry McHale handout in Appendix.

EXPERT EVIDENCE

See Rule 11-2 – 11-7 in Appendix.

CARR V. SIMPSON (2010, BCSC)

 Reliability of tools employed by experts goes to weight not admissibility unless renders opinion valueless

 Facts:

 P alleges physical injury caused by D; P saw occupation therapist (M) for “work capacity evaluation”; M assessed P and prepared a report; D objects to admissibility of report b/c used FAB in assessment, new and unproven technology AND b/c evidence tainted by bias since M was owner/inventor of FAB so had vested financial interest

 Issue:

 Is there a reasonable basis to exclude the opinion evidence of M?

 Held:

 NO

 Analysis:

 M was forthright about role as inventor of FAB and financial interest in it – should not be precluded from giving expert testimony on this ground alone, in absence of other evidence which might call into question his independence

 FAB is a measuring tool NOT a diagnostic instrument per se – introduction of novel measuring instrument in the application of science does not make the science novel

 “I do not mean to suggest…that the reliability of the tools employed by experts may not be challenged in an attempt to undermine the factual underpinnings of a diagnosis or assessment; however, unless the undermining renders the opinion virtually valueless, it will go to the weight of the opinion and not to its admissibility”

 Evidence falls short of establishing reasonable basis for excluding opinion evidence of M

MOLL V. PARMAR (2012, BCSC)

 Facts:

 P brings action for damages for MV accident in 2006; suffered head and orthopaedic injuries and has not returned to work since accident; D already had Independent Medical Exams (IMEs) of P by neurologist, neuroradiologist and psychiatrist and applied for order requiring P to attend further IMEs by psychiatrist and neuropsychologist who had produced reports in response to those provided by P; Master granted application b/c issues addressed by psychiatrist and neuropsychologist sufficiently different from those addressed by neurologist and psychiatrist; P appeals the order

 Issue:

 Should appeal of the P from order requiring IMEs be allowed?

 Held:

 Appeal allowed for neuropsychologist but dismissed in respect to psychiatrist

 Analysis:

 Since master’s order bound to have affect on assessment of damages and vital to final issue, the proper standard of review was rehearing on the merits

 Court has discretion to order IME; more than one may be ordered; purpose to “ensure reasonable equality between the parties in the preparation of a case for trial”; does not mean D should be able to match expert for expert or report for report; second exam will NOT be allowed for purpose of attempting to bolster earlier opinion of another expert – must be some question or matter that could not have been dealt with at earlier exam; should be reserved for cases where there are exceptional circumstances (Hamilton v Pavlova)

 Fundamental premise for admission of expert opinion evidence is that it is prima facie objective and impartial (Wong v Wong)

 If there is any legitimate concern that proposed medical examiner may have bias in favour of the party seeking his appointment, the time to raise that objection is on the application to the court for his/her appointment (Wong v Wong)

 Considerable merit in P’s complaint re: neuropsychologist report about expert’s advocacy bias and ability to be objective – not appropriate to order IME of P by expert who had already taken such strong stance

 This concern did not apply to psychiatrist – in this case examination might alleviate the concerns regarding admissibility (since opinions, prognosis had been rendered in absence of exam of patient)

 Permitting examination by psychiatrist would make report more useful to parties and TJ

WARKENTIN V. RIGGS (2010, BCSC)

 Expert report will be excluded where found to be biased and argumentative

 Facts:

 P suffered soft tissue damage after MV accident with D, including headaches, difficulty sleeping and elbow, neck and shoulder pain; 3 years after P began to suffer fribromyalgia syndrome and fatigue which required reduce work from full to half-time; P brought action for damages vs. D; P submits medical reports including report from Dr. H; D objects to admissibility of report of Dr. H on basis that he is not impartial and to admissibility of rebuttal report on basis that not filed in time and not responsive to other Dr’s report

 Issue:

 Should expert report of Dr. H be excluded

 Held:

 YES

 Analysis:

 Report uses bold font to highlight words/phrases which benefit P’s claim and support diagnosis

 That which is contrary to P’s claim or does not support diagnosis is omitted or presented in non- bolded font

 This emphasis in support of P’s claim and exclusion of contrary matters is advocacy

 Discussion of the medical principles and their application is biased & argumentative; presents medical literature in manner that suggests there is consensus; attempts to mislead court by referring only to portions of literature that support his prognosis; does not refer to cautions of qualifications in literature; not current with medical literature

 Admissibility of report likely to distort fact finding function of trier of fact, and therefore prejudicial value outweighs probative value

 Rebuttal report is simply reiteration of report – also inadmissible

 Court goes on to find that while medical evidence supports conclusion that P suffers from fibromyalgia or widespread chronic pain, does not support causation

CBA SKILLED LAWYER SERIES – ROD HAYLEY & THOMAS WOODS

 Characteristics of the Perfect Expert

 Experience but not professional W

 Has never been undercut/criticized by court

 Has acted for both Ps and Ds and seems neither biased nor unduly dogmatic

 Willing to give time and effort necessary to prepare

 Good writer who can prepare report that laypersons can follow

 Articulate and engaging

 Able to stand up to rigors of examination

 Must be able to show that opinions accord with logic and common sense

 Does NOT need to be academic so as he/she has “acquired special or peculiar knowledge through study or experience in respect of the matter on which he or she undertakes to testify (R v Mohan)

 Sometimes court will find practical experience more persuasive than academic or professional accomplishments (Miller v White Truck Sales)

 When is the Expert Required?

 When the subject matter of litigation is unintelligible to the layperson

 When expert assistance is necessary to enable the trier of fact to draw proper inferences from the relevant facts

 Advisory vs. testimonial experts

 The Law Governing Expert evidence

 Expert evidence is admitted as an exception to the rule excluding opinion evidence

 Mohan test for admissibility of expert opinion:

. Relevant

. Necessary

. No violation of an exclusionary rule

. Expressed by properly qualified expert, and

. Probative value outweighs prejudicial effect

 Limitations on use of expert evidence

 Role of Expert Ws

 Conflicting loyalties: duty to court vs. duty to client

 Conflict of duties resolved by expert’s performing their intended role

. Testimonial experts perform quasi-judicial function

. They are de facto delegates of an aspect of the judicial fact finding function

. They must be held to an exacting standard of probity and objectivity

. Conformity to required duty allows for better resource allocation

 Must be independent and impartial

. Independence of mind and judgement

. Not allowing partisan interests to deflect analysis from its true course

. May be affected by affiliations – either institutional or with particular classes of litigants

. Failures of objectivity and impartiality are discoverable and will surface (cannot be reconciled with relevant literature or with other opinions expert has given)

. Disclosure of expert’s file materials can reveal failure of objectivity and impartiality – strict approach in BC

. Bias checklist:

 Reliance on unacknowledged assistance of colleagues, EEs, counsel

 Incorporating views of others whose expertise and opinions the expert being examined cannot judge or defence

 Discarding or modifying opinions at the request of counsel or others

 Basis opinions on assumed facts additional to those stated in report

 Role of Counsel

 Improper influence – active or passive – must be avoided

 Counsel have circumscribed role in preparation of expert reports: influence limited to form and cannot affect substantive content

 Critically important role in formation and preservation of expert’s file

 BUT fact that expert’s report should be his/her own work product does not mean counsel should refrain from working closely with expert to ensure report is:

. Logical, concise and clear

. Complies with all legal and ethical requirements

. Neither argumentative nor defensive in tone

 Selecting and Retaining Expert Witnesses

 Decide whether expert needed for consultation purposes or only for trial

 Analyze the facts to determine

. What opinion evidence is needed

. What kind of expert could give the opinion sought

. What risks are involved in putting forward expert evidence

 Seeks out experts

. Eg. universities; literature; review of relevant cases; clients etc

. Eliminate any who has been criticized or sanctioned for ethical transgressions

 “Interview” the expert

. explain cases/issues/process

. discuss expert’s relevant experience/research/court experience

 Choose a candidate and prepare retainer letter

. Statement of assumed facts and opinions sought should be discussed and communicated in writing

 Prepare the expert

. Comment on matters of structure/style/coherence/ethical and legal obligations in report

 Are all sources clearly listed? Have all assumed facts been identified? Are there illogical or ambiguous passages? Does the report contain inadmissible arguments or legal conclusions? Is the tone objective and impartial?

. Inform W of duty to court

. Inform W of court rules, deadlines and time commitments

. Ensure expert fully conversant with own opinion

. Inform W of general guidelines that govern viva voce evidence

. Ensure W familiar with all issues raised by the case

 Cross-examination of Opposing Party’s Expert Witness

 Is the opposing party’s expert opinion necessary?

. Are Mohan criteria met?

 Does the expert have the necessary qualifications to provide the opinion given?

 Does the expert meet the standard of independence and impartiality required?

. ID sources of potential bias

 Is the underlying science novel and subject to critical scrutiny?

 Does the expert deviate in methodology or reasoning from relevant scientific literature?

 Did the expert adhere to professional standards in giving expert opinion?

 Are there inconsistencies with expert’s own previously expressed or published opinions? 90 Civil Procedure: Drafting

 Must understand in detail the report and be familiar with all publications of expert on same subject matter

 Review learned treatises that might be put to expert to contradict or weaken his/her opinions

 Do not accept vague, non-responsive answers

 Show the W to be outside expertise, biased, speculative, inconsistent, unduly influenced by others, too far removed from mainstream science etc.

 Know when to stop the examination

. E.g. When W had admitted significant errors of logic and analysis that go to heart of report

MASS LITIGATION

CLASS PROCEEDINGS ACT

 Class certification

 4 (1) The court must certify a proceeding as a class proceeding on an application under section 2 or 3 if all of the following requirements are met:

. (a) the pleadings disclose a cause of action;

. (b) there is an identifiable class of 2 or more persons;

. (c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members;

. (d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;

. (e) there is a representative plaintiff who

 (i) would fairly and adequately represent the interests of the class,

 (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

 (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members.

 (2) In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the court must consider all relevant matters including the following:

. (a) whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members;

. (b) whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions;

. (c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings;

. (d) whether other means of resolving the claims are less practical or less efficient;

. (e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.

WHAT IS A CLASS ACTION?

 A representative proceeding commenced pursuant to statute – e.g. B.C.’s Class Proceedings Act

 One person, or a small group of people, brings a suit to resolve issues of fact and law in a form that, if resolved, will bind all others within the defined class

 Not the only form of mass litigation, but now the most common

WHEN ARE CLASS ACTIONS USED?

 Products Liability:

 Hoy v. Medtronic, Inc., (defective pacemaker leads)

 Environmental Law:

 Ring v. Canada (Agent Orange)

 Consumer Protection Law:

 MacKinnon v. National Money Mart Company (payday loans)

 Government Action/Inaction:

 Sauer v. Canada (Agriculture) (mad cow disease)

 Insurance/ Benefit Entitlement: 92 Civil Procedure: Drafting

 Hislop v. Canada (Attorney General) (same-sex survivors CPP benefits)

 Labour and Employment Law:

 Corless v. KPMG LLP (overtime pay)

 Contracts and Negligent Misrepresentation:

 Waddell v. Apple Computer, Inc., (iPod battery life)

 Post-Secondary education:

 Matoni v. C.B.S. Interactive Multimedia Inc (dental hygienist accreditation)

 Securities Law

 So far, less common in Canada than U.S.

 Statutory changes in ON, MB, AB and BC removing requirement that plaintiff show

 reliance in secondary market actions has resulted in more claims being brought: e.g. Silver v. IMAX Corp.

 Obstacles remain – leave requirements, caps on damages

 Canadian courts still wary of U.S. excesses

LEGISLATIVE HISTORY OF CLASS ACTIONS IN CANADA

 Compared to US, Canada came late to class actions

 BC Rule 5(11): “Where numerous persons have the same interest in a proceeding, other than a proceeding referred to in subrule (17), the proceeding may be commenced and, unless the court otherwise orders, continued by or against one or more of them as representing all or as representing one or more of them.”

 Pre-CPA: The Representative Action

 Strict test and limited role

 SCC decision in Naken: a stake through the heart of the representative action

 Passage of CPAs in BC and Ontario render representative action irrelevant?

 2001 Trilogy of Cases in SCC – Rumley, Hollock, Dutton – set out guidelines for conduct of class actions and policy about why we have class actions

 Dutton:

 Even though case brought in form of old rule (representative action); nonetheless court felt that court were able to control own processes and could choose from statutory provisions from provinces that had statutes and apply them in provinces that did not  this is largely irrelevant now since all provinces have class action statutes now

 Q: is the old representative rule dead? A: No – it is not. Largely b/c in aboriginal law it still has a significant importance  more appropriate for dealing with collective rights, no opting out with representative actions as there is with class actions

 McLachlin: “Absent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them”

 Post-Dutton Class Actions available across Canada

 National class actions possible, but unwieldy  courts continue to struggle with issue

 CBA creates National Class Action database to encourage communication between class counsel and public in various jurisdictions

 Vioxx: Duelling national class actions – this case still represents a low for class actions; about a dozen class actions fighting for space in Canada; many overlapped; still being worked out; has focused the minds of judiciary on problems unless we have SCC opine on multi-juridictional class actions

 International class actions possible: settlement of class actions in US may affect class member in Canada, with proper notice

 In Currie v. Macdonald’s Restaurants of Canada, no proper notice, so class action started in Canada

CERTIFICATION OF CLASS ACTIONS

 In the test set out in Class Proceedings Act s.4 there are some discretionary elements (eg. preferability test) and non-discretionary elements

 In Act, there is certification, notice, rules about communication with class, rules re: costs, rules as to how to deal with individual issues after common issues are dealt with (s. 27)  very liberal piece of legislation that allows the court a lot of discretion to deal in a efficient manner

 Section 4(1)

 Pleadings must disclose cause of action

 Consider Strategy: Anything done with respect to certification is cost free HOWEVER if prior to certification application there is a motion, it can be an application to strike or application for particulars, costs will follow the event (party that loses potentially has costs sanctioned)

 Identifiable class of 2 or more persons

 In US a certain size is necessary for class action – “numerosity” – not an issue in Canada

 Smallest class action in BC, 16 people  generally will have classes much much larger

 Claims raise common issues

 If you had 10,000 similar claims and NO class action would need to litigate same matter over and over – re judicata would not apply b/c no mutuality of parties

 So rationale behind class actions is to use the courts resources more efficiently  judgment can bind the class, only need to adjudicate common issues once

 Note: unlike US (Predominancy rule), can have common issue that is certifiable even if individual issues predominate; modified in subsection (2)

 If class action will be preferable procedure

 May be too complex to run in single case; may be other avenues of resolution (eg. ADR)

 Consider Auton: involved education of autistic children; started as class action and then court decided not needed, simply required declared

 Will the class action advance things sufficiently?

 Representative P

 (i) Fairly and adequately represent interests of the class

. contrast US, where representative P must have claims typical of the class – not in Canada

. BUT must not have conflicts of interests with other class members

 (ii) has produced a plan for the proceeding

. need to give something to the court that will help the court manage the case!

 Section 4(2)

 Outlines factors to consider in the preferability test under s. 4(1)

EVIDENCE ON CERTIFICATION

 When you come to certification with evidence, do not need to be able to show you will succeed BUT P must demonstrate “some basis in fact” – shows whether there is any reality whatsoever in this going ahead as class action, with all of the procedure that entails

 Leading case remains Hollock: environmental case in which SCC took a view about whether or not case should be certified that caused a great deal of difficulty in environmental law lobby/movement; in the course of that reasoning the court said certification is not really about weighing preliminary merits; BUT case needs to be grounded in some kind of reality;

THE CLASS DEFINITION

 Class should be easily ascertainable

 Class cannot be defined solely by damages (should not be tied to result in the case)

 Common issues need not prevail over individual ones

 Boundaries of time and space may be one way to define common issues (eg. Hollock)

 Not all issues have to be common

 Consider opt-out provision: all class members for class action in BC must opt out if they do not want to be bound by decision; if outside of BC they would need to opt-in to BC litigation

REPRESENTATIVE P

 Special relationship with counsel – the one who works with counsel and gives evidence at trial – heavy burden

 Why would anyone do it?

 Altruism/commitment to cause

 Representative P has some ethical obligations

HOLLICK V. TORONTO (2001, SCC)

TAUB V. MANUFACTURERS LIFE INSURANCE (1998, ONSC)

ADR/SETTLEMENT

See Rules 9-1 – 9-2 in Appendix.

See Notice to Mediate (General) Regulation (Law and Equity Act) in Appendix.

 Practical reason for wanting to settle things – litigation can be prohibitively expensive for many clients

 BUT also consider that some times you may need to go to trial – and this is important to show people that you will, so you can get better settlement

 If you are negotiating settlement on behalf of client, you need to be clear with client that they can’t get everything

 Remember there are personalities involved in settlement

 Guiding Principle: what does my client need and how do I achieve it?

 Timing of approach to settlement is very strategic

 Would rarely consider talking about settlement as soon as file starts

 Need to show the other side that you know how to use the court and your client is prepared to pay for legal services

 Consider: At trial there is a certain part of the outcome that you can never predict for your client (depends on judge; surprises in litigation prices) BUT where you have a settlement you can control the whole thing

 Some provinces there is mandatory mediation – NOT in BC

 In BC, the other side CAN require you to mediate; and if you don’t and the other side is successful you may end up paying for the entire mediation (general rule is that you would share the costs)

 Judicial Mediation: need to have all pleadings, discovery, x-examinations, motions etc. done before judicial mediation; if it fails, the judge becomes pre-trial judge (eg. Saskatchewan)

 Much debate about whether judges out to be doing mediation at all BUT Hayley says the costs of litigation are such that you should try to do everything to resolve client differences – settlement conference MAY work

 Mediation has not become enshrined in process of resolving legal matters

 HOWEVER will not be effective if just used as another pre-trial step; need to go in with intent of resolution

 As expensive as mediation can be, still cheaper than trial generally

APPENDICES

CLASS NOTES ON EXAMINATION FOR DISCOVERY

 Introduction

 Most cases in civil litigation will involve examination for discovery

. Unless you strike early, or decided on summary trial w/o discovery or settlement w/o discover, or win a jurisdictional battle

 Conducted orally before a court reporter.

. No judge

 Opposing party or its representative must attend on appointed date.

. Have right to set examination for discovery – do not need to get agreement from other party on dates

 Failure to attend can result in sever sanctions, including having the defaulting party’s pleading struck

 To compel attendance, examining party must serve, at least 7 days in advance, the party or, if represented, that person’s counsel, a notice in form 23 and the appropriate witness fees

 Purpose: to gain info and admissions, and to obtain evidence that can be read into the record at trial or used in x-exam

 Documents

 Document Organization

. Preparations is of critical importance: read both side’s documents and select those:

 Most helpful for obtaining admissions; and

 Necessary to understand the material facts

. Prepare binders of those documents you wish to exhibit – again from both parties’ productions

. Double copy them – one to annotate for yourself and a clean copy for exhibit

. Alternatively, can conduct examination entirely electronically, but this is still not usual practice

. Arrange docs in roughly the order you want to examine on

. But be prepared to change directions, depending on responses you are receiving

. Alternatively, can arrange docs by production # or chronologically, and refer to docs in notes by that # or date

 Strategy/Approach

 Try to avoid being totally predictable in your approach: for example, examine by subjects and themes, sometimes at least, rather than simply in chronological way (BUT Hayley says: this could be problematic – may have duplicates of documents)

. ** Key to know your witness, then use the right strategy for that particular W

 Know intimately each document you intend to examine on. In your copy, highlight key parts of the document and make notes

 Sometimes will be to your advantage to ask Qs on the document before you show it

 Let W answer questions about the event or transaction, and then show the document which may rebut, contradict or at least refine what the W said

 Best to keep good pace in the examination to make best use of your time and avoid having W gain the upper hand

 But if your really need time to find something in the docs, take it – transcript will not show pauses

 Don’t’ be wedded to line of Qs and a particular path through the docs, rather be prepared to go to , docs in a different order than you planned to test the W on the story she IS telling, not the story you THOUGHT she would be telling

 Introduce each doc carefully, with language such as “I am showing you a document dated [] which appears to be a memo from you to [], President of XYZ C0. Do you recognize this document?

 Go through the doc to ID names and signatures and be sure to establish the background of the doc and any important circumstances surrounding its creation.

 Give W chance to answer truthfully, and then use docs to undercut inaccurate or false evidence

. Eg. ask W if she read the doc before signing, If no, draw her attention to initials beside a statement that says “I have read the doc carefully and I understand and accept its terms”

. Now W shown not only to have read doc but also to have lied under oath about that fact

. Then you can go further and undercut credibility, or at least establish W has poor memory

 Rarely will W know the docs as well as you, and she will want to remember them in a way that will assist her case

 Let her tell any “set-speech” she has prepared with the assistance of counsel, then undercut it either with a single doc or a whole series of them

 Don’t cut the W off!

 The Witness

 Need to be sensitive to the person you are examining so that you know when to undercut and when not to

 Do not assume all Ws are alike

 Most Ws not liars but have human frailties – want to remember past events in ways that serve their interests

 Be friendly and polite before examination – avoid hostile siege mentality

 If clear that W trying to be truthful (however inaccurate the evidence), no need to be hard on that person. Simply guide them in the direction you want, with the assistance of docs you are exhibiting

 If, however, W persists in lying, even after being show documents that make plain that W’s evidence is not true, then you may choose to be stern in your questioning

 W generally prefers friendly or neutral tone than a calm but obvious annoyance – most Ws can be trained to tell the truth

 Often useful to let W know from the outset that you are familiar with subject matter of case – will usually give you more forthcoming answers

 Sometimes however, prudent to suggest to W that you need to be educated on subject – some Ws will then go on at length to show their superiority. That will often open up important lines of Ws

 Your Conduct as Counsel

 Because there is no authority figure at these examinations, some counsel choose to disrupt or otherwise interfere with the examination of their client

 This kind of conduct is entirely inappropriate

 Counsel for examining party does not have right to go off the record whenever it pleases him/her to do so. Agreement of the other counsel should be sought (will normally be given, unless request seems part of a delaying tactic)

 Improper practice to give hints and other help to the W who is being X-examined

. Don’t say “take your time”, don’t point to portions of the doc to help them, don’t object to questions by making speeches that will assist your client to answer further Qs on subject; if client seeks assistance from do not provide it

 Proper and important to object to questions that appear to have no relevance; can also object when questions are incoherent, misleading, ambiguous or prefaced with statement that is not true

 Improper to do anything to delay the examination – such as raising inappropriate objections

 Never lose temper with opposing counsel or W – simply find opportunity to bring matter before the court to seek further time for examination because of what you perceived to be obstruction of the opposing counsel or W

 Re-examination and Redirect

 In examination for discovery you START with a cross-examination

 Following the cross-examination of the witness, counsel for the party being examined has a right of re-examination (redirect) BUT only used very rarely/in extreme circumstances

 As a general rule, counsel should never re-examine on an examination for discovery.

 If the witness has stated something that counsel believes to be untrue or incomplete, counsel should discuss the matter with the witness in the privacy of the office when the discovery has been concluded.

 Any correction that is necessary can be made by sending a letter to the other side – saying “my W said something under oath that was wrong, and they have confirmed it was wrong to me”

 If you do choose to re-examine know the risks:

. Can’t cross-examine or lead the witness! Need to ask open-ended questions as you would in direct examination anyway.

. Run the risk of re-emphasizing bad evidence

RULE 3-7 – PLEADINGS GENERALLY Pleading must not contain evidence 102 Civil Procedure: Drafting

. (1) A pleading must not contain the evidence by which the facts alleged in it are to be proved. Documents and conversations . (2) The effect of any document or the purport of any conversation referred to in a pleading, if material, must be stated briefly and the precise words of the documents or conversation must not be stated, except insofar as those words are themselves material. When presumed facts need not be pleaded . (3) A party need not plead a fact if o (a) the fact is presumed by law to be true, or o (b) the burden of disproving the fact lies on the other party. When performance of a condition precedent need not be pleaded . (4) A party need not plead the performance of a condition precedent necessary for the party's case unless the other party has specifically denied it in the other party's pleadings. Matters arising since start of proceeding . (5) A party may plead a matter that has arisen since the start of the proceeding. Inconsistent allegations . (6) A party must not plead an allegation of fact or a new ground or claim inconsistent with the party's previous pleading. Alternative allegations . (7) Subrule (6) does not affect the right of a party to make allegations in the alternative or to amend or apply for leave to amend a pleading. Objection in point of law . (8) A party may raise in a pleading an objection in point of law. Pleading conclusions of law . (9) Conclusions of law must not be pleaded unless the material facts supporting them are pleaded. Status admitted . (10) Unless the incorporation of a corporate party or the office or status of a party is specifically denied, it is deemed to be admitted. Set-off or counterclaim . (11) A defendant in an action may set off or set up by way of counterclaim any right or claim, whether the set-off or counterclaim is for damages or not, so as to enable the court to pronounce a final judgment on all claims in the same action. Pleading after the notice of civil claim . (12) In a pleading subsequent to a notice of civil claim, a party must plead specifically any matter of fact or point of law that o (a) the party alleges makes a claim or defence of the opposite party not maintainable, o (b) if not specifically pleaded, might take the other party by surprise, or o (c) raises issues of fact not arising out of the preceding pleading.

General relief . (13) A pleading need not ask for general or other relief. General damages must not be pleaded . (14) If general damages are claimed, the amount of the general damages claimed must not be stated in any pleading. Substance to be answered . (15) If a party in a pleading denies an allegation of fact in the previous pleading of the opposite party, the party must not do so evasively but must answer the point of substance. Denial of contract . (16) If a contract, promise or agreement is alleged in a pleading, a bare denial of it by the opposite party is to be construed only as a denial of fact of the express contract, promise or agreement alleged, or of the matters of fact from which it may be implied by law, and not as a denial of the legality or sufficiency in law of that contract, promise or agreement. Allegation of malice . (17) It is sufficient to allege malice, fraudulent intention, knowledge or other condition of the mind of a person as a fact, without setting out the circumstances from which it is to be inferred.

Particulars When particulars necessary . (18) If the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, or if particulars may be necessary, full particulars, with dates and items if applicable, must be stated in the pleading. Lengthy particulars . (19) If the particulars required under subrule (18) of debt, expenses or damages are lengthy, the party pleading may refer to this fact and, instead of pleading the particulars, must serve the particulars in a separate document either before or with the pleading. Further particulars . (20) Particulars need only be pleaded to the extent that they are known at the date of pleading, but further particulars o (a) may be served after they become known, and o (b) must be served within 10 days after a demand is made in writing. Particulars in libel or slander . (21) In an action for libel or slander, o (a) if the plaintiff alleges that the words or matter complained of were used in a derogatory sense other than their ordinary meaning, the plaintiff must give particulars of the facts and matters on which the plaintiff relies in support of that sense, and o (b) if the defendant alleges that, insofar as the words complained of consist of statements of fact, they are true in substance and in fact, and that insofar as they consist of expressions of opinion, they are fair comment on a matter of public interest, the defendant must give particulars stating which of the words complained of the defendant alleges are statements of fact and of the facts and matters relied on in support of the allegation that the words are true.

Order for particulars . (22) The court may order a party to serve further and better particulars of a matter stated in a pleading. Demand for particulars . (23) Before applying to the court for particulars, a party must demand them in writing from the other party. Demand for particulars not a stay of proceedings . (24) A demand for particulars does not operate as a stay of proceedings or give an extension of time, but a party may apply for an extension of time for serving a responding pleading on the ground that the party cannot answer the originating pleading until particulars are provided.

RULE 7-1 – DISCOVERY AND INSPECTION OF DOCUMENTS List of documents . (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, o (a) prepare a list of documents in Form 22 that lists . (i) all documents that are or have been in the party's possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and . (ii) all other documents to which the party intends to refer at trial, and o (b) serve the list on all parties of record. Insurance policy . (3) A party must include in the party's list of documents any insurance policy under which an insurer may be liable o (a) to satisfy the whole or any part of a judgment granted in the action, or o (b) to indemnify or reimburse any party for any money paid by that party in satisfaction of the whole or any part of such a judgment. Claim for privilege . (6) If it is claimed that a document is privileged from production, the claim must be made in the list of documents with a statement of the grounds of the privilege. Nature of privileged documents to be described . (7) The nature of any document for which privilege from production is claimed must be described in a manner that, without revealing information that is privileged, will enable other parties to assess the validity of the claim of privilege. Amending the list of documents . (9) If, after a list of documents has been served under this rule, o (a) it comes to the attention of the party serving it that the list is inaccurate or incomplete, or o (b) there comes into the party's possession or control a document that could be used by any

party of record at trial to prove or disprove a material fact or any other document to which the party intends to refer at trial, . the party must promptly amend the list of documents and serve the amended list of documents on the other parties of record. Party may demand documents required under this rule . (10) If a party who has received a list of documents believes that the list omits documents or a class of documents that should have been disclosed under subrule (1) (a) or (9), the party may, by written demand, require the party who prepared the list to o (a) amend the list of documents, o (b) serve on the demanding party the amended list of documents, and o (c) make the originals of the newly listed documents available for inspection and copying in accordance with subrules (15) and (16). Party may demand additional documents . (11) If a party who has received a list of documents believes that the list should include documents or classes of documents that o (a) are within the listing party's possession, power or control, o (b) relate to any or all matters in question in the action, and o (c) are additional to the documents or classes of documents required under subrule (1) (a) or (9), . the party, by written demand that identifies the additional documents or classes of documents with reasonable specificity and that indicates the reason why such additional documents or classes of documents should be disclosed, may require the listing party to o (d) amend the list of documents, o (e) serve on the demanding party the amended list of documents, and o (f) make the originals of the newly listed documents available for inspection and copying in accordance with subrules (15) and (16). Response to demand for documents . (12) A party who receives a demand under subrule (10) or (11) must, within 35 days after receipt, do one of the following: o (a) comply with the demand in relation to the demanded documents; o (b) comply with the demand in relation to those of the demanded documents that the party is prepared to list and indicate, in relation to the balance of the demanded documents, . (i) why an amended list of documents that includes those documents is not being prepared and served, and . (ii) why those documents are not being made available; o (c) indicate, in relation to the demanded documents . (i) why an amended list of documents that includes those documents is not being prepared and served, and . (ii) why those documents are not being made available. Application for production of documents . (13) If a party who receives a demand under subrule (10) or (11) does not, within 35 days after 106 Civil Procedure: Drafting

receipt, comply with the demand in relation to the demanded documents, the demanding party may apply for an order requiring the listing party to comply with the demand. Documents not in possession of party . (18) If a document is in the possession or control of a person who is not a party of record, the court, on an application under Rule 8-1 brought on notice to the person and the parties of record, may make an order for one or both of the following: o (a) production, inspection and copying of the document; o (b) preparation of a certified copy that may be used instead of the original. Inspection of document by court . (20) If, on an application for production of a document, production is objected to on the grounds of privilege, the court may inspect the document for the purpose of deciding the validity of the objection. Party may not use document . (21) Unless the court otherwise orders, if a party fails to make discovery of or produce for inspection or copying a document as required by this rule, the party may not put the document in evidence in the proceeding or use it for the purpose of examination or cross-examination.

RULE 7-3 – DISCOVERY BY INTERROGATORIES Party may serve interrogatories by consent or with leave . (1) A party of record to an action may serve interrogatories in Form 24 on any other party of record, or on a director, officer, partner, agent, employee or external auditor of a party of record, if o (a) the party of record to be examined consents, or o (b) the court grants leave. If a party is a body of persons . (2) If a party of record to an action is a body of persons, corporate or unincorporate, that is empowered to sue or to be sued in its own name or in the name of an officer or other person, another party of record may, with leave of the court granted at an application or if authorized to do so by a case plan order, serve interrogatories on the officer or member of the body specified in the order. Powers of court . (3) In an order granting leave under subrule (1) (b) or (2), the court may set terms and conditions on the interrogatories, including terms and conditions respecting (a) the number or length of the interrogatories, (b) the matters the interrogatories are to cover, (c) the timing of any response to the interrogatories, and (d) the notification, if any, to be given to the other parties of record respecting the interrogatories. Timing of answer to interrogatories . (4) A person to whom interrogatories are directed must, within 21 days or such other period as the court may order under subrule (3), serve an answer on affidavit to the interrogatories.

If more than one person to answer interrogatories . (5) If interrogatories are required to be answered by more than one officer, director, partner, agent or employee of a party, the interrogatories must state which of the interrogatories each person is required to answer. Objection to answer interrogatory . (6) If a person objects to answering an interrogatory on the grounds of privilege or on the grounds that it does not relate to a matter in question in the action, the person may make the objection in an affidavit in answer. Insufficient answer to interrogatory . (7) If a person to whom interrogatories have been directed answers any of them insufficiently, the court may require the person to make a further answer either by affidavit or on oral examination. Application to strike out interrogatory . (8) If a party of record objects to an interrogatory on the grounds that it will not further the object of these Supreme Court Civil Rules, o (a) the party may apply to the court to strike out the interrogatory, and o (b) the court must take into account any offer by the party to make admissions, to produce documents or to give oral discovery. Service of interrogatories on lawyer . (9) A party of record may, instead of serving interrogatories under subrule (1) or (2), serve the interrogatories on the lawyer of the person to whom the interrogatories are directed. Lawyer must inform . (10) If a lawyer receives interrogatories under subrule (9), the lawyer must promptly inform the person to whom the interrogatories are directed. Continuing obligation to answer . (11) If a person who has given an answer to an interrogatory later learns that the answer is inaccurate or incomplete, the person must promptly serve on the party who served the interrogatory an affidavit deposing to an accurate or complete answer.

RULE 7-7 – ADMISSIONS Notice to admit . (1) In an action in which a response to civil claim has been filed, a party of record may, by service of a notice to admit in Form 26, request any party of record to admit, for the purposes of the action only, the truth of a fact or the authenticity of a document specified in the notice. Effect of notice to admit . (2)Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in a notice to admit is deemed to be admitted, for the purposes of the action only, unless, within 14 days after service of the notice to admit, the party receiving the notice to admit serves on the party serving the notice to admit a written statement that o (a) specifically denies the truth of the fact or the authenticity of the document, o (b) sets out in detail the reasons why the party cannot make the admission, or o (c) states that the refusal to admit the truth of the fact or the authenticity of the document is 108 Civil Procedure: Drafting

made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets out in detail the reasons for the refusal. Copy of document to be attached . Unless the court otherwise orders or the demanding party and the responding party consent, a copy of a document specified in a notice to admit must be attached to the notice to admit when it is served. Unreasonable refusal to admit . (4) If a responding party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document specified in a notice to admit, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court considers appropriate. Withdrawal of admission . (5) A party is not entitled to withdraw o (a) an admission made in response to a notice to admit, o (b) a deemed admission under subrule (2), or o (c) an admission made in a pleading, petition or response to petition except by consent or with leave of the court. Application for order on admissions . (6) An application for judgment or any other application may be made to the court using as evidence o (a) admissions of the truth of a fact or the authenticity of a document made . (i) in an affidavit or pleading filed by a party, . (ii) in an examination for discovery of a party or a person examined for discovery on behalf of a party, or . (iii) in response to a notice to admit, or o (b) admissions of the truth of a fact or the authenticity of a document deemed to be made under subrule (2) . and the court, without waiting for the determination of any other question between the parties, may make any order it considers will further the object of these Supreme Court Civil Rules.

RULE 7-8 – DEPOSITIONS Examination of person . (1) By consent of the parties of record or by order of the court, a person may be examined on oath before or during trial in order that the record of the examination may be available to be tendered as evidence at the trial. Examination of person . (2) An examination under subrule (1) may be conducted before an official reporter or any other person as the court may direct. Grounds for order . (3) In determining whether to exercise its discretion to order an examination under subrule (1), the

court must take into account o (a) the convenience of the person sought to be examined, o (b) the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence, o (c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial, o (d) the possibility and desirability of having the person testify at trial by video conferencing or other electronic means, and o (e) the expense of bringing the person to the trial. Subpoena . (5) If the court makes an order under subrule (1) entitling a party to examine a person under this rule, the party may, by serving on the person to be examined a subpoena in Form 25, require the person to bring to the examination, o (a) if the person to be examined is not a party of record or a representative of a party of record, any document in the person's possession or control relating to the matters in question in the action, and o (b) any physical object in the person's possession or control that the examining party contemplates tendering at the trial as an exhibit. Place of examination . (7) Unless the court otherwise orders or the parties to the examination consent, an examination under this rule must take place at a location within 30 kilometres of the registry that is nearest to the place where the person to be examined resides. Application of rule outside British Columbia . (8) So far as is practicable, this rule applies to the examination of a person residing outside British Columbia, and the court may order the examination of a person in the place and the manner the court considers appropriate. Notice of examination . (13) The examining party must give notice of an examination under this rule by serving copies of the subpoena referred to in subrule (5) on all parties of record at least 7 days before the date appointed for the examination. Mode of examination . (14) The examining party must conduct a direct examination of the witness and the witness is subject to cross-examination and re-examination. Objection to question . (15) If an objection is made to a question put to a witness in an examination under this rule, o (a) the question and the objection must be taken down by the official reporter, o (b) the validity of the objection may, on application, be decided by the court, and o (c) the court may, on an application referred to in paragraph (b), order the witness to submit to further examination. Recording of deposition evidence . (16) Unless otherwise ordered, an examination under this rule must be recorded by the person authorized under subrule (2) to conduct the examination 110 Civil Procedure: Drafting

o (a) in the form of questions and answers, or o (b) on a video recording.

RULE 9-1 – OFFERS TO SETTLE Definition . (1)In this rule, "offer to settle" means o (c) an offer to settle made after July 1, 2008 under Rule 37B of the former Supreme Court Rules, as that rule read on the date of the offer to settle, or made under this rule, that . (i) is made in writing by a party to a proceeding, . (ii) has been served on all parties of record, and . (iii) contains the following sentence: "The ...... [party(ies)]...... , ...... [name(s) of party(ies)]...... , reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding." Offer not to be disclosed . (2)The fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the proceeding, until all issues in the proceeding, other than costs, have been determined. Offer not an admission . (3)An offer to settle is not an admission. Offer may be considered in relation to costs . (4)The court may consider an offer to settle when exercising the court's discretion in relation to costs. Cost options . (5)In a proceeding in which an offer to settle has been made, the court may do one or more of the following: o (a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle; o (b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle; o (c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made; o (d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant's costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.

Considerations of court . (6)In making an order under subrule (5), the court may consider the following: o (a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date; o (b) the relationship between the terms of settlement offered and the final judgment of the court; o (c) the relative financial circumstances of the parties; o (d) any other factor the court considers appropriate. Costs for settlement in cases within small claims jurisdiction . (7)A plaintiff who accepts an offer to settle for a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders. Counter offer . (8)An offer to settle does not expire by reason that a counter offer is made.

RULE 9-2 – SETTLEMENT CONFERENCES Settlement conference . (1)If, at any stage of an action, the parties of record jointly request a settlement conference by filing a requisition in Form 17 or a judge or master directs that the parties attend a settlement conference, the parties must attend before a judge or master who must, in private and without hearing witnesses, explore all possibilities of settlement of the issues that are outstanding. Proceedings must be recorded . (2)Proceedings at a settlement conference must be recorded, but no part of that recording may be made available to or used by any person without court order. When judge must not preside . (3)A judge who has presided at a settlement conference must not preside at the trial, unless all parties consent.

RULE 9-5 – STRIKING PLEADINGS Scandalous, frivolous or vexatious matters  (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that  (a) it discloses no reasonable claim or defence, as the case may be,  (b) it is unnecessary, scandalous, frivolous or vexatious,  (c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or  (d) it is otherwise an abuse of the process of the court,  and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. Admissibility of evidence  (2) No evidence is admissible on an application under subrule (1) (a).

Powers of registrar  (3) If, on the filing of a document, a registrar considers that the whole or any part of the document could be the subject of an order under subrule (1),  (a) the registrar may, despite any other provision of these Supreme Court Civil Rules, o (i) retain the document and all filed copies of it, and o (ii) refer the document to the court, and  (b) the court may, after a summary hearing, make an order under subrule (1). Reconsideration of order  (4) If the court makes an order referred to in subrule (3) (b),  (a) the registrar must give notification of the order, in the manner directed by the court, to the person who filed the document,  (b) the person who filed the document may, within 7 days after being notified, apply to the court, and  (c) the court may confirm, vary or rescind the order.

RULE 9-6 – SUMMARY JUDGMENT Definitions  (1) In this rule: o "answering party" , in relation to a claiming party's originating pleading, means a person who serves, on the claiming party, a responding pleading that relates to a claim made in the originating pleading; o "claiming party" means a party who filed an originating pleading. Application  (2) In an action, a person who files an originating pleading in which a claim is made against a person may, after the person against whom the claim is made serves a responding pleading on the claiming party, apply under this rule for judgment against the answering party on all or part of the claim. Response to application  (3) An answering party may respond to an application for judgment under subrule (2) as follows: o (a) the answering party may allege that the claiming party's originating pleading does not raise a cause of action against the answering party; o (b) if the answering party wishes to make any other response to the application, the answering party may not rest on the mere allegations or denials in his or her pleadings but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial. Application by answering party  (4) In an action, an answering party may, after serving a responding pleading on a claiming party, apply under this rule for judgment dismissing all or part of a claim in the claiming party's originating pleading. Power of court  (5) On hearing an application under subrule (2) or (4), the court,

o (a) if satisfied that there is no genuine issue for trial with respect to a claim or defence, must pronounce judgment or dismiss the claim accordingly, o (b) if satisfied that the only genuine issue is the amount to which the claiming party is entitled, may order a trial of that issue or pronounce judgment with a reference or an accounting to determine the amount, o (c) if satisfied that the only genuine issue is a question of law, may determine the question and pronounce judgment accordingly, and o (d) may make any other order it considers will further the object of these Supreme Court Civil Rules. Claiming party may proceed  (6) If, under this rule, a claiming party obtains judgment against a person on a claim made against that person in the originating pleading, the judgment is without prejudice to the right of the claiming party to o (a) proceed with the action in respect of any other claim made, in the originating pleading, against the person against whom the judgment was obtained, and o (b) proceed with the action against any other person against whom a claim is made in the originating pleading. Costs consequences  (7) Subject to subrule (8), if the party applying under subrule (2) or (4) obtains no relief on the application, the court may o (a) fix the costs of the party responding to the application, and o (b) fix the period within which those costs must be paid. Court may decline to fix costs  (8) The court may decline to fix and order costs under subrule (7) if the court is satisfied that the application under subrule (2) or (4), although unsuccessful, was nevertheless reasonable. Bad faith or delay  (9) If it appears to the court that a party to an application under subrule (2) or (4) has acted in bad faith or primarily for the purpose of delay, the court may o fix the costs of the application as special costs, and o fix the period within which those costs must be paid.

RULE 9-7 – SUMMARY TRIAL Application . (2) A party may apply to the court for judgment under this rule, either on an issue or generally, in any of the following: o (a) an action in which a response to civil claim has been filed; o (b) a proceeding that has been transferred to the trial list under Rule 22-1 (7) (d); o (c) a third party proceeding in which a response to third party notice has been filed; o (d) an action by way of counterclaim in which a response to counterclaim has been filed. When application must be heard . (3) A summary trial application must be heard at least 42 days before the scheduled trial date.

Evidence on application (5) Unless the court otherwise orders, on a summary trial application, the applicant and each other party of record may tender evidence by any or all of the following: (a) affidavit; (b) an answer, or part of an answer, to interrogatories; (c) any part of the evidence taken on an examination for discovery; (d) an admission under Rule 7-7; (e) a report setting out the opinion of an expert, if (i) the report conforms with Rule 11-6 (1), or (ii) the court orders that the report is admissible even though it does not conform with Rule 11-6 (1). Filings with application o (8) A party who applies for judgment under subrule (2) o (a) must serve, with the notice of application and the other documents referred to in Rule 8- 1 (3), every expert report, not already filed, on which the party will rely in support of the application, and o (b) must not serve any further affidavits, expert reports or notices except . (i) to tender evidence that would, at a trial, be admitted as rebuttal evidence, . (ii) to respond to a notice of application filed and served by another party of record, or . (iii) with leave of the court. Notice of evidence to be used on application . (9) If a party intends, on a summary trial application, to rely on o (a) evidence taken on an examination for discovery, o (b) answers to interrogatories, or o (c) admissions, the party must give notice of that fact in accordance with subrule (10). Judgment . (15) On the hearing of a summary trial application, the court may o (a) grant judgment in favour of any party, either on an issue or generally, unless . (i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or . (ii) the court is of the opinion that it would be unjust to decide the issues on the application, o (b) impose terms respecting enforcement of the judgment, including a stay of execution, and o (c) award costs. No further application without leave

. (16) If the court does not grant judgment under subrule (15), the applicant may not apply again under subrule (2) without leave of the court.

RULE 11-2 – DUTY OF EXPERT WITNESSES Duty of expert witness . (1) In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party. Rule 11-3 – Appointment of Joint Experts

RULE 11-4 – APPOINTMENT OF OWN EXPERTS Appointment of Own Experts  Subject to Rule 11-1 (2), parties to an action may each appoint their own experts to tender expert opinion evidence to the court on an issue.

RULE 11-5 – APPOINTMENT OF COURT’S OWN EXPERT Appointment of experts by court . (1) … the court may, on its own initiative at any stage of an action, appoint an expert if it considers that expert opinion evidence may help the court in resolving an issue in the action. Court may name different expert . (3) The court may appoint an expert under this rule whether or not that expert was named by a party under subrule (2) (a). Previous report not a bar . (5) The court may appoint an expert under this rule in relation to an issue even if that expert has already given a report to a party on the issue or on another issue in the action. Consequences of court appointment . (6) Unless the court otherwise orders, if an expert is appointed under this rule to give expert opinion evidence on an issue, each party of record has the right to cross-examine the expert. Reports . (11) An expert appointed under this rule must o (a) prepare a report that complies with Rule 11-6 and send it to the registry, with a copy to each party of record, within such time as the court directs Report must be tendered as evidence . (12) Each report and supplementary report of an expert appointed by the court under this rule must be tendered as evidence at the trial of the action, unless the trial judge otherwise orders.

RULE 11-6 – EXPERT REPORTS Requirements for Report . (1) An expert's report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following: o (a) the expert's name, address and area of expertise;

o (b) the expert's qualifications and employment and educational experience in his or her area of expertise; o (c) the instructions provided to the expert in relation to the proceeding; o (d) the nature of the opinion being sought and the issues in the proceeding to which the opinion relates; o (e) the expert's opinion respecting those issues; o (f) the expert's reasons for his or her opinion, including . (i) a description of the factual assumptions on which the opinion is based, . (ii) a description of any research conducted by the expert that led him or her to form the opinion, and . (iii) a list of every document, if any, relied on by the expert in forming the opinion. Proof of Qualifications . (2) The assertion of qualifications of an expert is evidence of them. Service of Report . (3) Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert's report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule, o (a) by the party who intends, with leave of the court under Rule 11-3 (9) or otherwise, to tender the expert's report at trial, or o (b) if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert's report at trial. Service of Responding Report . (4) Unless the court otherwise orders, if a party intends to tender an expert's report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date, o (a) the responding report, and o (b) notice that the responding report is being served under this rule. Supplementary report of joint or court-appointed expert . (5) If, after an expert's report is served under subrule (3) (b), the expert's opinion changes in a material way, o (a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party who served the report under subrule (3), and o (b) the party to whom the supplementary report is provided under paragraph (a) of this subrule must promptly serve that supplementary report on every other party of record. Supplementary report of own expert . (6) If, after an expert's report is served under subrule (3) (a) or (4), the expert's opinion changes in a material way and the party who served the report intends to tender that expert's report at trial despite

the change, o (a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party, and o (b) the party must promptly serve that supplementary report on every other party of record. Requirements for Supplementary Report . (7) A supplementary report…must o (a) be identified as a supplementary report, o (b) be signed by the expert, o (c) include the certification required under Rule 11-2 (2), and o (d) set out the change in the expert's opinion and the reason for it. Production of documents . (8) Unless the court otherwise orders, if a report of a party's own expert appointed under Rule 11-3 (9) or 11-4 is served under this rule, the party who served the report must, o (a) promptly after being asked to do so by a party of record, serve on the requesting party whichever one or more of the following has been requested: . (i) any written statement or statements of facts on which the expert's opinion is based; . (ii) a record of any independent observations made by the expert in relation to the report; . (iii) any data compiled by the expert in relation to the report; . (iv) the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion, and o (b) if asked to do so by a party of record, make available to the requesting party for review and copying the contents of the expert's file relating to the preparation of the opinion set out in the expert's report, . (i) if the request is made within 14 days before the scheduled trial date, promptly after receipt of that request, or . (ii) in any other case, at least 14 days before the scheduled trial date. Notice of trial date to expert . (9) The person who is required to serve the report or supplementary report of an expert under this rule must, promptly after the appointment of the expert or promptly after a trial date has been obtained, whichever is later, inform the expert of the scheduled trial date and that the expert may be required to attend at trial for cross-examination. Notice of objection to expert opinion evidence . (10) A party who receives an expert report or supplementary report under this Part must, on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date, serve on every party of record a notice of any objection to the admissibility of the expert's evidence that the party receiving the report or supplementary report intends to raise at trial. When objection not permitted . (11) Unless the court otherwise orders, if reasonable notice of an objection could have been given under subrule (10), the objection must not be permitted at trial if that notice was not given. 118 Civil Procedure: Drafting

RULE 11-7 — EXPERT OPINION EVIDENCE AT TRIAL Reports must be prepared and served in accordance with rules . (1)Unless the court otherwise orders, opinion evidence of an expert, other than an expert appointed by the court under Rule 11-5, must NOT be tendered at trial unless o (a) that evidence is included in a report of that expert that has been prepared and served in accordance with Rule 11-6, and o (b) any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7). When report stands as evidence . Unless the court otherwise orders, the following apply to a report or supplementary report of an expert: o (a) if, within 21 days after service of the report or within such other period as the court may order, a demand is made under subrule (3) of this rule that the expert who made the report attend at trial for cross-examination, the report must not be tendered or accepted as evidence at the trial unless the appointing party calls the expert at trial to be cross-examined in compliance with the demand; o (b) if no such demand is made under subrule (3) within the demand period referred to in paragraph (a) of this subrule, . (i) the expert whose report has been served under this Part need not attend at trial to give oral testimony, and . (ii) the report, if admissible, may be tendered and accepted as evidence at the trial. Cross-examination of expert . (3) A party of record may demand that an expert whose report has been served on the parties of record under Rule 11-6 attend at the trial for cross-examination… Costs of cross-examination . (4) If an expert has been required to attend at trial for cross-examination by a demand under subrule (3) and the court is of the opinion that the cross-examination was not of assistance, the court may order the party who demanded the attendance of the expert to pay to the other party or to the expert costs in an amount the court considers appropriate. Restrictions on calling expert as witness at trial . (5) Unless the court otherwise orders, if a party appoints an expert under Rule 11-3 (9) or 11-4, o (a) the party must not call the expert to give oral evidence at trial unless . (i) the expert's attendance has been demanded under subrule (3) of this rule, or . (ii) the expert's report has been served in accordance with Rule 11-6, the party believes direct examination of the expert is necessary to clarify terminology in the report or to otherwise make the report more understandable and any direct examination of that expert is limited to those matters, and

o (b) the party must not cross-examine the expert at trial. When court may dispense with requirement of this Part . (6) At trial, the court may allow an expert to provide evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with, if o (a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part, o (b) the non-compliance is unlikely to cause prejudice . (i) by reason of an inability to prepare for cross-examination, or . (ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or o (c) the interests of justice require it.

RULE 20-3 – REPRESENTATIVE PROCEEDINGS Representative proceeding  (1) If numerous persons have the same interest in a proceeding, other than a proceeding referred to in subrule (10), the proceeding may be started and, unless the court otherwise orders, continued by or against one or more of them as representing all or as representing one or more of them.

NOTICE TO MEDIATE REGULATION

ACCESS TO JUSTICE LECTURE BY JERRY MCHALE