Table of ContentsIntroduction and Themes2Ethics4Limitation Periods5Concepts5Changes5Transition7Discovery7Practical Advice8Talking Point8Res Judicata10Cause of Action Estoppel11Issue Estoppel11Admin Tribunals and Issue Estoppel11Doctrine of Abuse of Process12Talking Points14Pleadings15History16Modern Pleadings16Talking Points17Striking Pleadings19Talking Points20Summary Trial21Talking Points22Summary Judgment22Discovery23General23Electronic26Examination for Discovery26Interrogatories31Depositions32Access to Justice33Experts36Class Actions41Settlement & Mediation46

Introduction and Themes

The rules of procedure have recently changed; the following areas have the most dramatic changes:

1. Proportionality

· New emphasis in rules to prevent the situation where the party with the deepest pockets (i.e. the defendants) can use procedure unfairly to their advantage

· i.e. def’s run up the costs by having so many motions, or taking so long on discovery, or disclosing a mountain of documents

· the goal of the new rules is to simplify litigation procedure to prevent it from creating unfairness

2. Pleadings

· Eliminating writs (the old form)

· A writ was a one page doc that had the parties and thumbnail sketch on what the case was about, not detailed. Just stated the material facts and the prayer for relief.

· Change is to avoid surprise

· Now we have a notice of civil claim, much more detailed, have to show legal basis for the claim.

· The changes are intended to take the surprise out of the system

· Criticism: what about “simplifying” procedure? This seems to make it more onerous in a way, there may be more unfairness due to technicalities or lack of information when pleadings created. Counter: but makes sure only serious claims make it through.

3. Case Planning Conferences

· This is available upon request or by Court order

· Getting the court involved at an early stage in the proceeding (much more active role for the court)

4. Limits on Discovery

· Before you could do discovery as long as you needed

· Now there is a 7 hour limit

· Also before you gave all documents that were possibly relevant, and now you have to give much less

· Changes are trying to create efficiency

· Criticism: but now if you actually do need more time you have to bring a motion, so does this make it less efficient because it is creating more motions?

5. Experts

· No longer meant to be mouth pieces for the parties

· Communication between the lawyer and expert is not privileged

· No longer hired guns, are required to be impartial

· Court can order a joint expert now, very unusual for adversary system, but this is meant to be used just to resolve technical issues

· There is less tolerance for unlimited adversarial system and more emphasis on just getting to the truth.

What to consider before commencing litigation:

· Possibility of settlement

· Litigation should be the last resort

· Determine the client’s prospects of winning

· Is their law for the client’s complaint?

· Assume facts are proveable to determine if legal remedy exists

· Then consider probability of client’s facts being accepted by the court

· Does the defendant have money to pay?

· Can the client afford to pay you?

· Need to choose court or jurisdiction if applicable

· File statement of claim, it has to be served

· Can also start action through application where no material facts are in dispute

· Defendant responds with statement of deference, counter-claim, cross-claim or 3rd party claim

· You can use case management—courts involed in preliminary stages to establish reasonable, firm timelines

· Also can use ADR instead of trial (but probably need to go through the trial process a little bit to establish your positions before ADR can be effective)

· Also need to select mode of trial: jury or judge

Anatomy of a claim

Themes

we are moving from the old “trial by ambush” to a system focused on:

a. Openness: you should get information before trial, or so you can choose a route other than trial.

b. Fairness: not constitutional, but this is the purpose behind the rules. To ensure fairness

· Right to be Heard

· Impartial Decision Maker: when we get things in advance, the decision maker also gets them and gets to read over information in advance as well, which leads to better decisions especially where there is significant opposition.

c. Timing: want to give reasonable limits

Ethics

· Lawyers are self-governing, done by elected benchers

· The law society has a monopoly b/c of the licensing regime

· Each province has a code of conduct, which is a modelled after the CBA model code

· The code provides guidelines, there aren’t necessary consequences depending

· Our ethical norms are based on the adversarial system (but this may not be how the law always operates)

· NOTES in QUESTION pg 211… have to be ethical, can’t do illegal things… develop your own moral code of conduct and stick to it.

Issue: Should service to the client be limited by anything other than the client’s will?

Dominate Model

Moral Isolationism

← Moral Activism

· This is called ‘neutral partisanship’: the moral buck passes to the client

· The lawyer advances the client’s interest by all legal means

· The moral decision belongs to the client not the lawyer

· Acting professionally is good for society, a lawyer’s personal moral are irrelevant

· Both schools of thought need to make an effort to raise moral concerns with the client (not just follow them blindly or resign because you disagree)

· It is only the final decision where the two schools divide

· There needs to be a meaningful dialogue among professionals.

· Farrow: need sustainable approach to ethics that recognizes diversity: client interests, lawyer interests, societal interests and is grounded in reality.

· Lawyer’s take direct moral responsibility for the consequences of their actions

· Can’t be professionally neutral to what you oppose personally

· Need to act to promote justice, not just client intrests

· Can’t subvert justice even legally b/c that undercuts professionalism

· D. Kennedy: if you think outcome of winning a case would be bad for society you shouldn’t participate, can’t separate the law you create from personal morality.

AC Hutchinson

· Not helpful to reduce ethics to a set of do’s and don’ts

· Codes are important resource, just not the end all be all

· Need critical framework of principles

· Life-long challenge to interrogate yourself and colleagues about the moral status of your work

· Need sophisticated understanding to start at law school

· Need to be a good lawyer and a good person

Justice Abella

· There are three basic values you must be committed to, to be a good lawyer: (1) competence (2) ethics (3) professionalism

· There is a crisis in our system over a lack of professionalism

· Public perception of the profession is very important

· Economic pressure means we are becoming a trade—this isn’t good, why would we have self-regulation if we are just a trade?

· Process is not justice, we need to rethink the civil system

· Need accessible results and resolution of civil disputes

· No point in having a system, even the best system in the world, if no one can use it because it is too expensive.

Constance Blackhouse

· Lawyer’s resort to ‘professionalism’ to exercise power and exclusion based on gender, race, class and religion throughout history

· Resistance to diversification in the name of professionalism

· “civility, community, collegiality” imbued with discriminatory intent and practice

Limitation Periods

Concepts

Purpose allow defendants to enjoy repose, end potential claims and provide complete closure, encourage plaintiffs to bring evidence when evidence is fresh

· Where these rationales matter less, it makes sense to extend limitation periods i.e. sexual assault M(K) v M(H)

Fairness Courts try to reduce seeming harshness on plaintiffs by finding lack of knowledge on the part of the plaintiff, and therefore the limitation period did not begin to run. Court don’t like cases to fail on timing where fraud is involved, but otherwise not much sympathy b/c it is your fault if you were lazy and didn’t act promptly—and plus if it was a lawyer who missed the limitation period they have insurance.

Capacitypotential platiniffs who are incapacitated under legal disability (i.e. minors) can receive different treatment, limitation periods can be “tolled”.

Notice Periods some statutes require notice within (often short) time periods, in addition to other timing requirements.

· Do policy reasons justify “double” limitation periods?

· Justified by the requirement for government to know sooner in order to deal with claims.

· They wouldn’t be able to deal with it, they are such big organizations the machinery takes so long to get going, they need notice sooner.

Accrual vs. Discoverability matters typically accrue when the elements of a cause of action are in place, discoverability means the plaintiff’s actual or impungned knowledge of the cause action triggers the commencement of the limitation period.

Changes

We’ve changed acts! New act into force on June 1st, 2013

Old Act

New Act

Basic Limitation Period

· Varied action to action, 2, 6 or 10 years

· Time starts when all elements of cause of action present

· Some claims could be postponed based on discoverability

· Two years for all civil claims (with a few exceptions)

· Starts to run once ptf discovers claim

· Section 6

Exceptions

· Claims by debtor or secured party in possession of collateral to redeem or realize on that collateral

· ss. 2,3: exempted claims and proceedings where no limitation period applies.

· Includes exemptions from old act

· Adds: declarations and judicial review proceedings; prosecution of offences under the Offence Act; claims based on existing aboriginal and treaty rights

· Where limitation governed by a different statute s. 3(2)

· Court proceeding to enforce or sue on a judgment for payment of money or return of personal property is 10 years (s. 7)

Ultimate Limitation Period

30 year ultimate limitation period based on accrual model.

· Acknowledgement of debt would only restart basic, not effect ultimate

15 years for all civil claims, commencement based on “act or omission” model rather than “accrual”

· Can be postponed and reset or suspended: adult disability, acknowledgements (part payment of debt or written confirmation of liability) and wilful concealment.

· (for enforcement of judgement it is the award, not the underlying claim)

Contracting Out

The act is silent on whether parties can contract out or change statutory limitation period… the common-law is also uncertain

No change, still uncertain and common-law governs.

· Hayley: you can probably extend, but unlikely you could shorten unless they are sophisticated.

Demand obligations

6 year limitation period to collect on a demand obliation, commences when the loan is first made and delivered

2 year limitation period commences on the first day that there is a failure to perform the obligation after a demand has been made s. 14

Realize or redeem on security

No specification for when limitation period commences

Commences on the first day that the right to enforce the security arises. s. 15

Contribution and Indemnity

Judge has discretion re whether to allow contribution and indemnity claims

Basic limitation period commences on the later of s.16:

· The day the claimant for contribution or indemnity is served with the original pleading; or

· The day the claimant knew or reasonably ought to have known that a claim for contribution or indemnity could be made

Stopping the Clock

Commencement postponed: minors, and persons under disability

Running suspended: if person becomes under a disability

Clock reset: liability is acknowledged.

Related Claims

Same as new, except applies to claims for indemnification and contribution as well.

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 period s.22

· i.e. counterclaim, third party proceeding, set off, or addition or substitution of new party as plaintiff or defendant.

· NOT indemnification and contribution

Amending Pleadings

Court has discretion to allow after expiry of limitation period s. 22(5)

Non-Judicial Remedies

Cause of action extinguished when limitation period expires s. 9

Cause of action is 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 that would other be entitled to. s. 27

· “non-judicial remedy” = a remedy that a person is entitled, by law or by contract, to exercise without court proceedings.

Transition

Discovery

Claim is discovered on the first day on which the person knew or reasonably ought to have known 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 nature, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

**so if you thought the injury was so trivial, then it wouldn’t be discovered until you realized it was something more***

**subjective/objective—reasonable person in the plaintiff’s circumstances

Special Discovery Rules:

· Minors s.18

· Persons under disability s. 19

· Special situations:

· Fraud or trust claims s.12

· Beneficiary must be “fully aware” of elements (rather than knew or reasonably ought to have known)

· Not all fraud claims, just claims based on fraud, fraudulent breach of trust, recovery of trust property, or any other claim arising out of fiduciary relationship between trustee and beneficiary involving wilful concealment, where person with claim is beneficiary and person against whom claim is made is trustee.

· Courts don’t like case to fail on timing when fraud is involved.

· Claims for future interest in trust property s.13

· Claims for demand obligations s.14

· Limitation period of 2 years commences from “the first day that there is a failure to perform the obligation after a demand has been made”.

· Issue: does it start the day of the default or the day after? If you had the whole day to pay,t hen logically the next day the limitation period starts because you couldn’t know if they were defaulting the day the obligation is due

· But some Ontario law says differently… similar statute.

· Problem: limitation periods don’t count fractions of days.

· My thought: “the first day there is a failure to perform”, means that if you have to pay on Monday February 1st, if you do pay, there is no limitation period because there is no harm. But if you do not pay, the loan runs from that day Monday February 1st, as we can see with hindsight that this was the first day of default. Can use hindsight when determining limitation periods because they are (a) longer than one day and (b) only become important with the passage of time. Therefore, it’s easy to wait a day and determine if a payment has been made and whether to start running the limitation period.

· Claims to realize or redeem security s.15

· Limitation period (2 years) commences on the first day that the right to enforce the security arises. (old act didn’t specify)

· Claims for contribution or indemnity s. 16

· The old act gave the judge discretion, but now claims are subject to basic limitation period, which commences on the later date of: (1) the day the pleading is served or (2) when you know or reasonably ought to know you have a claim for contribution or indemnity.

· Claims of successors, predecessors, principals and agents s.17

Practical Advice

· Need to implement systems to consider bringing actions within 2 years

· Must start enforcement proceedings on judgments within 10 years

· Consider limitation periods in deciding whether and when to demand repayment of demand obligations

· Regularly seek acknowledgements, and set up systems to be able to prove those acknowledgements

· Consider setting limitation periods by contract

· Consider limitation periods when deciding on a jurisdiction for a choice of law clause—which province has the most favourable regime for your circumstances?

· When in doubt… SUE and sue EVERYONE!

Talking Point

While the rest of civil procedure changes, i.e. to the rules, seems to be looking for efficiency and streamlining access to justice, the stricter limitation periods seems to be creating a “sue and sue everyone” mentality otherwise you may lose your claim. On the other hand, limitation periods do work to ensure efficiency by barring stale claims. Certainly the problem cannot be solved by giving greater discretion to the judiciary, because if that were the case, then everyone would try to bring stale claims just in case they were allowed, and the entire purpose of the limitation act would be lost. The deadlines do need to be firm. But perhaps a solution would be to make a lesser action, such as entering into negotiations, postpone the commencement of the limitation period. Bona fide negotiations may in fact postpone the commencement due to their interaction with discovery (i.e. you may not realize that a court proceeding is necessary if you are in bona fide negotiations, because you think the negotiations will resolve the action). However if this was stated more clearly and explicitly in the rules, and if it had an effect on the ultimate limitation period as well, the tension between the efficiency and the “sue everyone lest you miss a limitation period” mentality may disappear.

Res Judicata

RES JUDICATA = Rule of law intended to prevent the re-litigation of matters (res) already decided (judicata). Whether it operates is a question of law Reliable Mortgages BCCA 2014

Elements (for both types):

(1) Two actions, involving the same parties or their privies

· Privy = “sufficient” connection between the two parties being compared in order to determine whether it is fair and appropriate to apply res judicata

· No one really knows how to define this, elastic concept

· Consider, would the party have been bound by the previous judgment if it had gone the other way?

· To be a “same party” you must actively participate Minott v O’Shanter

(2) Claim now sought to be asserted was within the prior Court’s jurisdiction

· Prior Court can be in a different jurisdiction, still enforceable

(3) Prior adjudication was on the merits of the case

· Default judgment constitutes a decision on the merits

· If decision based on procedure, then res judicata doesn’t apply

(4) Prior decision was final

· Admin tribunal can qualify as a “final judicial decision”, depends on the hearing process… doesn’t have to be exactly like a court, but was there an opportunity to know and meet the case? Rasanen ONCA

· Pre-trial motion for interim injunction would therefore not constitute a final decision, and the same motion could be brought in a different jurisdiction (possibly… have to always look at all the circumstances though)

Types:

· If an entire claim is barred by res judicata = “cause of action estoppel” or “claim prejudice”

· If only an issue is barred = “issue estoppel”

· Difference: cause of action is focused on fairness to litigants, litigants can’t be ‘twice vexed’ and mutuality is therefore KEY. Issue estoppel is focused on the integrity of the judicial system, don’t want to undermine it by getting inconsistent results on the same issue, if there is a lack of mutuality, can use abuse of process to ensure that this objective is maintained. Petrelli BCCA 2011

Policy: Danyluk v Ainsworth

· Society benefits from ensuring the finality of judicial decisions

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

Six Ways to Get There: Reliable Mortgages BCCA 2014

(1) Issue estoppel—bars an issue which was decided in a previous proceeding

(2) Issue estoppel under the rule in Henderson—bars an issue which could have been brought in a first proceeding

(3) Cause of action estoppel—bars relitigation of a matter already litigated

(4) Cause of Action estoppel under the rule in Henderson—bars relitigation on the basis of a new legal theory which should have been brought in the previous action.

(5) Abuse of process—where issue estoppel fails for want of mutuality

(6) Collateral Attack—bars actions which purport to dispute or ‘overturn’ orders made by a court with competent jurisdiction.

Exceptions:

· Some situations overriding fairness requires a rehearing:

(a) Fraud or misconduct in the previous hearing

(b) Discovery of fresh evidence that “entirely changes the aspect of the case”

Cause of Action Estoppel

You need to bring everything you can the first action, because all claims originally advanced and all that COULD have been brought are barred by res judicata cause of action estoppel. Britannia Airways On SCJ 2005

Otherwords: one cannot relitigate on the basis of new legal theory when the facts are basically the same. Britannia Airways On SCJ 2005

However BCCA RELIABLE MORTGAGES 2014: It’s not really about whether you could have brought the legal theory, but whether you should have brought it. If you should have brought it in first proceeding, res judicata bars you from bringing it in the second.

prevents litigation by instalments

Issue Estoppel

Requirments:

(1) Same question has been decided (issue was actually litigated)

(2) Prior decision was final

(3) Parties are the same, or their privies are the same (mutuality)

*Courts are always being asked to drop or relax the mutuality requirement for issue estoppel… evolving area, usually turn to ‘abuse of process’ instead of doing so ex Toronto (City) v. CUPE Local 79 SCC 2003

Admin Tribunals and Issue Estoppel

In the context of Employment Tribunal:

Rasanen v. Rosemount 1994 ONCA

Minott v. O’Shanter Development Co. ONCA 1999

applied issue estoppel to bar an employee’s claim for wrongful dismissal, despite the fact that the potential result of the two proceedings were vastly different.

Emphasizes the importance of mutuality to refuse to apply issue estoppel where employee first went to tribunal.

POLICY: claims for unemployment insurance should, under the relevant legislation, be adjudicated quickly, inexpensively and summarily; and vulnerable employees seek the benefits when least able to bring forward their best case. The procedural differences between the admin process and civil action are profound, expertise of the board very different from and much narrower than the court on the subject of wrongful dismissal.

Danyluk v. Ainsworth SCC 2001

STEP ONE: Moving party must establish the following pre-conditions

(a) The same question has been decided

· i.e. material fact established in one, is established in the others.

· Applies to questions of law, fact, or mixed fact and law.

(b) Judicial decision which allegedly created the estoppel was final

· If process lacks adequate alternate remedy or appeal, this is relevant at stage two NOT here.

(c) Same parties or privies

STEP TWO: Court decides whether to exercise their discretion and apply issue estoppel

· Equitable doctrine

· Can only use to refuse to apply where all the preconditions exist.

FACTORS

(a) Wording of the statute: did the legislature intend the admin decision to affect the civil remedy?

(b) Purpose of legislation: what is being decided and why was it enacted

(c) Availability of appeal: failure to take advantage of that counts against you

(d) Safeguards in admin procedure: rules of evidence, natural justice, expertise of D/M—legally trained?

(e) Circumstances that gave rise to the Admin proceeding

(f) Potential injustice: consider the entire circumstances.

*While this test clearly applies where first decision maker is an admin tribunal, it could apply where the decision maker was not an admin tribunal as well… possibly*

Doctrine of Abuse of Process

This is an evolving area, that courts turn to where issue estoppel doesn’t really fit for lack of mutuality

McIIkenny (UK case)

IRA bombers found guilty in criminal proceeding they argued their confessions were not voluntary because the police had beaten them. Court rejected this.

Bombers then bring civil action against police for damages arising from the alleged beatings Police claim issue estoppel.

CA Denning held that issue estoppel fits: 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 two actions

HLInstead relied on abuse of process, claiming the civil action was a collateral attack on the previous criminal judgment (IRA bombers could have appealed the decision on the confessions but did not). So used general, multi-purpose principle of abuse of process to estop the IRA bomber’s claims.

Bomac Construction v Stevenson SKCA 1986

abuse of process for defendant plane owner and pilot to claim a lack of negligence in second action brought by B when same action against them brought by A had previously succeeded

PROBLEM: this does not encourage parties to join their actions also parties could sit back and wait for another party to litigate and piggy back on them if they win

COUNTER: but, if number of people hurt in accident, maybe only one of them can really afford the risk of losing—the other parties can only afford a lawyer if they win. So if we use this, then it increases access to justice because otherwise these people would never be able to get a result, because they can’t join an action because they can’t afford the risk.

· Maybe there could be some sort of penalty where it is clear that someone is taking advantage of this to ‘piggy back’, but really should have joined. Maybe you have show why you didn’t join? It’s equity so court’s can withhold if they like!

Toronto (City) v. CUPE Local 79 SCC 2003

FACTS: Man convicted of sexual offence against minors, works at a school, so he gets fired. Union challenges this at arbitration. Arbitrator says that the criminal conviction is not conclusive, and orders city to reinstate offender.

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.

collateral attack not appropriate because the criminal judgment’s legal force was not challenged by the arbitrator, only its correctness.

· My thoughts: “correctness” and “legal force” are not distinguishable concepts. A criminal verdict only has legal force because it is deemed to be “correct”, and to say that criminal verdicts can have legal force even if they are incorrect is to make a mockery out of the administration of justice. Whenever a conviction is demonstrably incorrect (ex: David Milgard), the verdict is over-turned and the person released from prison. The two concepts are intimately tied. Policy reasons mandate that we take a challenge of the correctness of a verdict to be synonymous with a challenge to its legal force: any country which would allow an incorrect criminal verdict to have legal force despite being incorrect is not a country where the rule of law reigns. Section 7: not to be deprived of liberty unless in accordance with the principles of fundamental justice. Fundamental justice does not allow for arbitrariness—surely an incorrect verdict cannot and should not continue to have legal force?

Applies abuse of process: Judges have the inherent discretion to prevent an abuse of the court’s process.

· Doesn’t have the specific requirements of res judicata

· Offers discretion to prevent re-litigation for the purposes of preserving the integrity of the courts process

· MY THOUGHTS

· Also considering conclusion of court: “blantant 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” SEE JUSTICE FOCUSED!!! Proves my point.

Petrelli BCCA 2011

Where issue estoppel fails for a lack of mutuality (i.e. not privies), you can instead use the “Doctrine of Abuse of Process” (can’t use for failed cause of action estoppel)

Policy: Integrity of the judicial process

(1) No assumption that relitigation will result in a more accurate result

(2) If same result reached, it is a waste of time and resources

(3) If a different result is reached, inconsistency undermines the entire judicial process, diminishing authority, credibility and finality

Talking Points

The move towards abuse of process and away from issue estoppel:

· they just like it because it doesn’t have strict rules

· see this all the time in evidence, court is moving away from being focused on the “letter of the law”, perhaps responding to criticism of results based on technicalities (i.e. think Admin where it used to be all about what writ you brought),

· moving towards using a more relaxed, ‘discretion’ or ‘principled approach’ or ‘contextual approach’ to solve legal problems.

· It’s justice focused not law focused. Ex: Toronto (City) v CUPE “blantant 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”.

· The con for this is that it makes it a lot less more predictable.

· Discretion is not a bad thing as long as the court is clear and open re: what their discretion is based upon.

· Give factors and consideration, guidance for lower courts but also to help people predict

· the rule of law means that people know what is required of them etc.

· Can’t have discretion just based upon the which side of the bed the judge woke up on in the morning because this does not respect the rule of law, and further would damage the integrity of the judicial process is this is what society observed.

· Since the whole point of abuse of process is to protect the integrity of the judicial process, the discretion must be exercised in a predictable way as indicated above.

· Sometimes the possible relief in the two proceedings are so different, that even though all requirements for issue estoppel met, it seems unjust to prevent it: ex Rasanen where the employee “sought immediate and limited relief of 4000…forsaking discovery and representation” and then was barred by issue estoppel from purusing a common-law claim for wrongful dismissal, where the potential award would have been ten times that amount. Therefore it is better to move away from the strict “rules” of issue estoppel and towards discretionary abuse of process, because can avoid unjust results like this.

· Consider the opposing results in Rasanan and Minott – undermines integrity of judicial system to have one judge delineate all these policies reasons why it’s not fair to bar the issue, and then have another judge go ahead and bar it in a different case… if you resort to abuse of process, you can focus more on what justice requires of the situation, and where that admin proceeding may be sufficient determination and where it may not. Judges in Rasanen seemed just to be stuck on applying the strict rule, rather than thinking about policy.

· PROBLEMS: lack of predictability, less uniformity in results (depends on which judge you get!), harder to appeal, should we allow people a chance to be heard where there is a lack of mutuality? Shouldn’t everyone get their fair day in court…

· What are we trying to uphold: Integrity. Integrity means parity in part, shouldn’t be getting different results from court to court when everyone is applying the same law—rule of law the same law applies to everyone.

· So it seems like a double standard to say that because re-litigation may render a different result and thus damage the integrity of the judicial process, people don’t get their day in court.

· Damages the rule of law to say that just because someone is a bad guy they aren’t protected by the law.

· If you are worried about the fact that re-litigation may show the integrity of the judicial system to be what it is, human based, variable, full of disparity… then you aren’t really protecting the integrity but you are protecting your own self-interest in maintaining your façade.

· Why create a whole new body of law, when we could just build on the law we already have? Ex: could just relax the mutuality requirement.

Will the Court Find Res Judicata?

· The court just wants to find what is just

· Ex: Reliable Mortgages, they didn’t find it because there was a question of whether the other party committed fraud.

· Motions judge said the party had reserved the right to open the issue at fraud later…

Pleadings

Pleadings primary documents by which actions are commenced and defended.

Overview of Process

· Based on exchange of “alternate allegations”

· Issues identified via pleadings

· Ptf sets out relief and facts that give rise to relief in “notice of civil claim”

· Defendant responds unless they want to make a prelim attack on notice of civil claim by moving strike all or a portion of the notice of civil claim

· If defendant does not respond nor move to strike, they risk summary disposition through default

Types of Responses

· Admissions

· Required to admit true allegations

· Admitted allegations are deemed facts, no proof required

· Denials

· Allegations denied must be proved at trial

· No Knowledge

· If you don’t know anything about alleged fact

· If defendant pleads no knowledge, then these facts must be proved at trial

· Affirmative Defences

· Admit alleged facts, but provide further facts that if true, avoid relief claimed by the ptf

· Ptf may have to file a reply.

· Counterclaim

· 3rd party claim

· After defendant brings 3rd party in, 3rd party may cross claim

Reply

· Where the Response to Civil Claim contains new allegations, the ptf may reply

· If no reply is filed, the ptf is deemed to deny the new allegations

· If ptf wants affirmative defence to the new allegations, they must file a reply

**Note that further pleadings after reply are possible, but only with leave or consent and this is very rare**

Form & Content

· Material Fact Pleading

· Notice and issue definition

· Degree of specificity depends on nature of allegations (more specificity if allegation moral wrongdoing)

· Party served with pleading may also request additional particulars in relation to allegations in the pleading

· If particulars are not provided, can make a motion for particulars—Court ordered compelled production

History

· 19th century pleadings became mired in technicalities and arbitrary distinctions

· First Report 1851, law commissioners:

· “it cannot be denied that on a system so simple and sound in principle defects and abuses have been engrafted which have gone far to destroy its utility. This has arisen in great measure from the over-anxiety to ensure exact precisions and certainty, and from the rigorous character of the rules introduced for the attainment of these objects. Some degree of strictness, no doubt, is necessary… but unhappily the rules framed to prevent these mischiefs [such as intentional ambiguity and obfuscation] have been abused and they and certain arbitrary regulations and forms have caused the existence of the those objections to the practice of special pleading, the justice of which we thoroughly feel…”

· 1970s: artificiality and disingenuousness of pleadings subject of complaint by law reformers:

· “one of the principle duties which the pleaders on both sides owe their clients is to keep open for them the widest possible area for manoeuver at the trial while scattering as many hurdles as possible into the manoeuvring area of the opposition. Pleading therefore resembles nothing so much as naval warfare before the advent of radar, when each side made blind forays into the sea area of the other, while giving away as little as possible about the disposition of his own forces”

Modern Pleadings

It is recognized that failing a claimed based on a technicality in a pleading leads to injustice. Therefore pleadings have been simplified, modernized and technical perfection is no longer required. However, pleadings play a very important role in litigation, which is to set the goal posts and define the scope of litigation. This informs the parties of the case to meet and what is at issue. Thus, some amount of formality and ‘technicality’ is required in order for efficient litigation.

Pleadings set the scope of litigation: “it is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings.” Rodaro v Royal Bank of Canada ONCA 2002 at para 60. Therefore the litigator must be very careful to ensure they have included all material facts in the pleadings, or the boundaries of the litigation may miss the street in which a key element of your claim lies.

· Where a cause of action is not pleaded, the case cannot be decided on that basis Rodaro

· Policy: unfair to bring in new issues, parties are entitled to know the case they have to meet Rodaro

· Statement of Defence must also indicate what affirmative defences are being pleaded, to give proper notice and avoid unfair surprise MacDonald Construction v. Ross PEISC 1980

· Remember: always subject to the discretionary power of the Court to allow a party to amend the pleadings, POLICY: want all proper issues to come before the Court in order for the administration of justice MacDonald

Generally, amendments are allowed freely before trial, unless a limitation period has passed or an amendment causes prejudice to the opposing party. If a limitation period has passed, you may need to bring evidence to justify the delay or the court may not allow you to amend. Delay itself does not constitute prejudice, prejudice = the lost ability to defend i.e. you destroyed docs because you thought they were irrelevant based on the pleadings.

· Can argue Rule 1-3(1) the ‘object’ “is to secure the just, speedy and inexpensive determination of every proceeding on its merits as a reason to allow amendment of pleading.

· “merits” = essential issues which ought to come out.

· Law and Equity Act s. 10: requires courts to grant all remedies that parties 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 municiplicity of legal proceedings concerning any of the matters avoided”

· However longer version of that quote actually gives the counter argument, because it applies only to “any legal or equitable claim properly brought forward by them in the cause or matter”

· Amendments can be made unilaterally before the earlier of (1) delivery of the notice of trial and (2) the date the case planning conference held.

An affidavit is not a pleading. Definition in Rule 1-1 “a notice of civil claim, a response to civil claim, a reply, a counterclaim, a response to counterclaim, a third party notice or a response to a third party notice”.

Material Facts vs evidence: Pleadings may not include evidence by which the facts the facts alleged are to be proved (Rule 3-7(1)). Alternatively, pleadings must “set out a concise statement of the material facts giving rise to the claim” (Rule 3-1(2)). The line between material facts and evidence can sometimes be unclear.

· Material Facts = facts necessary to establish a cause of action or a defence

· Err on the side of inclusion

· Rule 3-7(1) is NOT strictly enforced, unless the pleadings are confusing, prolix and/ or prejudicial (Homalco Indian Band BCSC 1998, pleadings are ‘embarassing’ where they fail to identify the cause of action or they contain irrelevant material or that are intended to confuse ARE ALL PREJUDICAL AND WILL BE STRUCK)

· You cannot lead evidence at trial of a material fact not plead.

·

Particulars are additional bits of information beyond the material facts, not so detailed that they constitute evidence, but more detailed in that they flesh out the material facts. Rules 3-7(18) to (24) allow for the demand and production of particulars in certain circumstances.

· If you assert moral wrongdoing against your opponent, you will likely need particulars, because it casts an aspersion on their character.

· Evidence vs. particulars very trickyconsider POLICY, particulars needed to inform “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 2003 so if needed to do this, probably a particular, if not, evidence.

You cannot plead law unless you have plead the material facts to support the law (Rule 3-7(9)), however, a concise summary of the legal basis for the relief sought must be included in a notice of civil claim (Rule 3-1(2)(c)). A legal basis must also be plead in a response to civil claim, counterclaim or third party notice (Rule 3-3(2)(c), 3-4(6), 3-5, Forms 2-6). In any plead subsequent to a notice of civil claim (response, counterclaim, reply), you must “specify any point of law that the party alleges makes a claim or defence of the opposite party not maintable” or “if not specifically plead might take the other party by surprise” (Rule 3-7(12). Therefore these provisions emphasize that you must include all material facts.

· To illustrate, a claim that the plaintiff did not mitigate their damages must be specifically plead or it cannot be advanced, it is not considered included in a denial JJM Construction v Sandspit Harbour Society BCSC 2000.

· It is perhaps obligatory to plead punitive damages and the grounds upon which the claim is made. Need more than just general adjectives which describe bad behaviour i.e. not just “high handed” but specific allegations—however remember don’t plead evidence, just particulars! Whiten v. Pilot Insurance Co. SCC 2002

A Court cannot decide a case on an issue or point of law that is not captured by the pleadings

· It’s ok if it wasn’t argued but was captured by the pleadings.

Talking Points

Do we need pleadings?

· Concerns of access to justice: so many unrepresented litigants, and pleading is a very difficult thing to do for the non-legally trained, very technical

· If you dispense with pleadings however, you create new administrative problems—there needs to be a way of organizing the information.

· If you want something more individualized, this will cost more money

· Maybe the key is just to make pleadings more flexible rather than to eliminate them

· “A pleading by any other name…” Is this really possible?

· Pleadings are necessary to: know the scope of the case, set parameters for discovery etc.

· But if pleadings are very technical, it may create injustice as a merited claim may fail on a defect in the pleading

· Probably can’t do away with pleadings unless you do away with the adversary system altogether. We need a way to get this information and to pin down the issues—or access to justice would be even worse because of all the inefficiencies.

Can particulars merely be evidence, which a party ought not to plead?

· Robinson v. Jacques Whitford Environment Ltd., 2004 BCSC 1424, citing MacLachlin and Taylor’s British Columbia Practice, 2nd ed. At para 20:

· “The distinction between material facts and evidence is essentially one of degree.  A material fact is a fact that of itself is necessary to establish a legal proposition and without which the cause of action is incomplete.  Evidence includes those facts necessary to establish the material facts.  It is a safe practice, if in doubt to plead a matter as the risk of having an order go to strike out a portion of one’s pleadings as being evidence is remote, and the consequences of such an order are slight (costs), while the consequences of having omitted to plead a material fact might be to have one’s pleadings struck out or claim dismissed for failing to state a cause of action or defence”

· However in this case, portion was struck out as evidence:

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

· In the past, zealous advocate demanded trial by surprise

· But now with the changes to the rules, example: 84 notice and expert report if you wish to rely on an expert at trial, are attempting to eliminate surprise – example Rule 3-7(12)

· More collegiality is expected of lawyers, but how to balance this with your duties as an advocate in an adversarial system?

· My thoughts: Lawyers have to remember they owe an ultimate duty to the Court as officers of the court.

· If you have a legal argument, then it shouldn’t matter if the other side knows what it is. Argue it well and thoroughly. If you don’t have a legal argument, then you really shouldn’t be in Court.

· It will only hurt you for the other side to see your legal basis if (a) you have no legal basis (b) your legal basis is not very good.

· Shouldn’t be trying to win by a trick, or by posturing, or by threatening litigation when you don’t have a claim.

· Otherwise, the adversary system is based on the idea of two equal adversaries arguing strenuously for opposite sides, and by doing so, the truth comes out.

· In reality, there will always be some advocates who are better than otherwise

· However, by giving the legal basis in advance through the pleadings, this is minimized slightly because the parties actually know the case to meet. The potential for equality is much greater, and if everyone is on the same page it is much more likely for the truth to come out and justice will be done.

· Especially important if the opposing side is unrepresented.

· Tie it into the rules: it’s not speedy if you aren’t upfront! And any settlement that comes from a mysterious pleading won’t be on the merits.

If you have insufficient time (due to limitation period or timing requirements)

· Pro forma, just plead something (even though you aren’t supposed to do this)

· And then seek to amend it later when you get more information.

Striking Pleadings

Pleadings are concise statements of material facts, which must invoke a recognized legal theory or claim of defence. If they do not, pleadings can be struck under Rule 9-5(1)(a). This area of law has evolved from the Court’s inherent jurisdiction to control their own process and prevent abuse of process. Rules to enable the Court to strike pleadings were established in England in 1875. This Rule attacks a pleading that does not disclose a reasonable cause of action.

Policy: There is no reason to waste time and resources adjudicating a conflict that the law recognizes no end for.

Test: Is it “plain and obvious” that the statement of claim discloses no reasonable claim? Hunt v. Carey SCC 1990

· Only if the action is certain to fail should relevant portions be struck

· The test is not based on the plaintiff’s chance of success, just need some chance of success

· Can’t strike out a pleading because it reveals “an arguable difficult or important point of law” –on the contrary we need to allow such pleadings so the point can be resolved.

· Alleging one tort does not preclude alleging another… if you can only recover from one, then it is for the trial judge to decide which one, not striking one before the trial.

· YOU ARE NOT CONSIDERING ISSUES AS YOU WOULD AT TRIAL… if there is an arguable point of law, then courts will not strike.

· Take the facts as if they are proven and ask: is there some chance of success? If yes don’t strike.

Application of the Test: Imperial Tobacco SCC 2011

· Uses plain and obvious test

· Don’t consider evidence or possibility of more evidence, it’s only the material facts in the pleadings you consider.

· BUT court will not presume fanciful allegations of fact that has no possibility of being proven as being true.

· Courts will allow amendment if the pleadings are merely bad, but not if the defect is a matter of substance that is inherent in the claim or defence.

· POLICY: the ability for the court to strike pleadings is essential for effective and fair litigation: unclutters proceedings, weeds out hopeless claims, promotes efficiency and correct results, reduces time & cost, attention and time is spent on cases with merit.

· However: need to use with care, as the law needs to be able to change. If you strike pleadings too rigorously, no new law could be developed.

· Application: Goes through the Anns/Cooper test to determine that no duty of care owed by the Canadian Government… seems a lot like you would do at trial, is this consistent with Hunt?

OTHER SUB-RULES: 9-5(1)(b), (c) and (d)

· Used for when a pleading is more than just ‘bad law’

· These three rules over-lap, so often just bring all of them (but not (a)—that one is different)

· Must use affidavit evidence, because it depends on the factual context and background of the situation

· Apply same test as above

· Striking “unnecessary, scandalous, frivolous or vexatious” pleadings

· Unecessary = struck if the applicant can how prejudice and/or inability to plead in response (embarrassed)

· Frivolous = unsustainable on the basis of illogical or nonsensical facts, or in light of issues such as prior conduct described by the opposing party

· Scandalous = indecent and offence and incapable of proof, i.e. attacking integrity with not meaningful evidence.

· Vexatious pleadings = cases brought as part of an attempt to harass the opponent rather than to resolve genuine legal issue.

· “prejudice, embarrass or delay the fair trial or hearing of the proceeding”

· used to strike pleadings that are incomprehensible, prolix or contain irrelevant matters or distracting, unnecessary side-issues

· “otherwise an abuse of process”

· Examples: res judicata, collateral attack, or improper procedure generally—serious claim need significant evidence to support

Talking Points

Hunt v Carey and Imperial Tobacco:

Issue: seems like a pretty detailed analysis in Imperial, which Court in Hunt says you are not to do.

Distinguish: In Hunt the law they were dealing with was not settled, it was an evolving area in the tort of conspiracy. However in Imperial the Court was dealing with the settled law of negligence, so the Court knew what the law was and was seeing if it was applicable to the situation at hand.

Nevertheless: In Hunt the Court says the analysis could not be made in preliminary motion, needed evidence and a trial. But Imperial does an analysis to determine there is no hope of success.

My Thoughts:

· While Imperial seems to be the high water mark as how far a court will go into analysis on an application to strike pleadings, the Courts decision make sense from a policy perspective.

· The Court emphasized that the policy behind the ability to strike is essential for effective and fair litigation, unclutters proceedings, weeds out hopeless claims, promotes efficiency and correct results, reduces time & cost, attention and time is spent on cases with merit.

· If the material facts as plead had no hope of satisfying a negligence claim, it should be struck.

· The Court assumed that the facts alleged by Imperial were true, and determined that even if proven, those facts could not satisfy a claim for negligence.

· Why should we waste resources on such a claim?

· Perhaps particularly influential in this decision was the fact that the public would be paying not only for the court time should Imperial’s pleading been accepted, but also for the Government of Canada to mount their defence.

· Imperial demonstrates the court’s sensitivity to policy concerns about efficiency and cost, when taxpayers are involved.

· Imperial is controversial because the Court appeared to be applying the test. But actually, what the Court can be seen doing is stating what a claim of negligence requires, and how the material facts, even if true, could not satisfy such a claim.

· An analogy would be: Party A alleges in their pleading that B negligently damaged A’s car because B glared at the car. It would be appropriate, in such a scenario, to discuss the ‘but for’ test to explain why A’s claim has absolutely no hope of success.

Summary Trial

Summary trial was invented in BC, and can be used where a defence is plead, unlike summary judgment. Therefore where you can avoid summary judgment by being reasonably artful in your pleadings, you can’t avoid summary trial just by coming up with a defence.

Policy: Summary trial is a procedure based on efficiency, a recognition that there are not enough resources to have a full trial in every case. Inspiration Management: Every effort is made to ensure a just result, and if this can be achieved without a full trial, it is preferable because of the volumes of litigation and the costs of litigation.

· The justice system can’t be perfect! Have to decide what compromises to make

Inspiration Management v McDermid

A summary trial requires evidence. The Court tries the issues raised by the pleadings on affidavits. Raising a triable issue does NOT automatically defeat an application for summary trial. An application for summary trial will fail if the trial judge decides they cannot find the facts necessary to decide issues of fact or law or if it would be unjust to decide on summary trial. Whether or not an application is successful depends on the nature and quality of material before the trial judge.

Factors: Summary trial application

· Amount of money involved

· Complexity

· Urgency

· Prejudice from delay

· Cost of conventional trial

· Sufficiency of evidence

· Other matters

Conflicting affidavits are not a bar to summary trial!

· Can’t decide solely on the basis of conflicting affidavits, but other evidence may make it possible to find necessary facts for judgment

· Also, the trial judge can order a cross exam if there is a conflict (although it is not a matter of right to be able to cross exam on an affidavit)

· This makes it like a mini trial, because it is done in front of the judge (not like normal discovery where you cross exam only in front of a court reporter)

· It is a matter of professional responsibility to prepare clear, concise material for judge—don’t throw up a mass of confusing evidence and serial affidavits.

Talking Points

If summary trial is so effective, why would you ever have a full trial?

· Advantages of summary trial: efficient, saves money and time, (classically no cross-examination just affidavits)

· Good if your case sells well on paper

· Hearsay rules a little more relaxed on affidavits

· Will always take place before you can get a trial date

· Advantages of trial:

· Full cross exam allowed, in person, can really destroy the other side’s case without the other side being able to give hints to their witnesses to help them

· If your witnesses are sympathetic, you want the judges to hear them—especially if the law isn’t really on your side

· Good if your case sells well in person, but not on paper

· Sometimes you need much more time, especially if complex, nuanced, can’t get a just result in a one day hearing

· On summary trial there might not even be proper pleadings, so may be too difficult to run as s summary trial

· People are usually not ready to settle at the time a summary trial comes along, so if you hold off and go to trial, you made end up being able to settle without having a trial—which means you have much more control over the result for you client.

Summary Judgment

· Can only be used where no defence is raised

· Test: is there a bona fide issue in dispute? If yes, can’t use. If no, Court makes a summary judgment which is simply a determination of the law.

· Historically used for liquidated claims, was a way to move things along in debtor/creditor law

DiscoveryGeneral

The scope of discovery has changed a lot with the new rules. The old test for document production was governed by the rule from Peruvian Guano, as described in Peter Kiewit Sons 1982 BCSC:

· Documents relating to a matter in question must be disclosed

· This includes documents that reasonably may contain information that directly or indirectly may advance your case or damage the case of the opposing side.

· However, where thousands or hundreds of thousands of documents only possibly relevant, the rule should not be slavishly followed—don’t want a party to incur enormous expense for something that may not exist.

· In such a situation, the party wanting discovery must narrow the scope to a manageable level and establish a prima facie case that something relevant will be uncovered

· Policy: Court must be concenred about the cost of litigation, balance the right of reasonable preparation in claim or defence.

The move away from the Guano requirements in the face of the modern technological realities can also be seen in Privest Property v WR Grace BCCA 1992. In Grace, the BCSC ordered that the defendant allow the plaintiff to access millions of documents under a full Guano disclosure requirement. The documents were only potentially relevant, and the BCCA overturned the BCSC, by stating that the discovery rule cannot “authorize a search” to determine relevance.

The voluminous disclosure requirements lead to a demand for change in the name of efficiency and to stem the tide of rising costs. The new discovery scheme under Rule 7-1 was interpreted in accordance with the object of the Supreme Court Civil Rules (Rule 1-3(1) and (2)), that is the “just, speedy” determination of every case “on its merits” by the Court in Prybysz v Crowe 2011 BCSC:

· Start with Rule 7-1(1)(a)

· Party at first instance is NOT obliged to make an exhaustive list of documents which may assist in a “train of inquiry”

· Just disclosing documents “that could, if available, be used by any party of record at trial to prove or disprove a material fact” (Rule 7-1(1)(a)(i) and documents that “the party intends to refer at trial” (Rule 7-1(1)(a)(ii)).

· Then, if opposing party believes something has been left out, can use Rule 7-1(10)

· Write to the other party demanding the document or class of documents you believe should have been included in the 7-1(1)(a) requirements.

· If opposing party wants extra discovery, use Rule 7-1(11)

· This is a demand for documents that “relate to any or all matters in question in the action”

· It is for the production of these documents (not just listing)

· You have to satisfy the court with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed”

· The key consideration here is PROPORTIONALITY: (scope, size should be proportional to cost of litigation)

· To respond to a demand under 7-1(10) or 7-1(11), use Rule 7-1(12)

· Party can refused a demand made

· But there is a similar higher burden here to explain why refusal is given, and this explanation must go beyond referring to the objective of the Supreme Court Civil Rules

· If privilege is claimed, must establish a basis for the privilege.

· If the parties can’t work it out, you apply under 7-1(13) for a court order.

· The Court can then make an order under 7-1(14)

· Court has the discretion to entirely refuse a 7-1(11) demand

· The Court will consider the supreme court civil rules objectives

· There needs to be evidence of existence and potential relevance that requires the extra discovery under sub (11), usually this evidence will come from examination for discovery, however examination for discovery does NOT have to occur before an application under 7-1(11) is made.

· The Court is wary of authorizing a fishing expediation

· If reasonable to explore potential issues in cross-examination for discovery first, before getting extra disclosure, the court will exercise discretion and refuse to order it.

· Onus is on the party making the 7-1(13) application to establish the 7-1(11) criteria, if they do not establish the criteria, the court will not order it.

However, the Peruvian Guano discovery has not been completely abolished by the new rules. When describing the new two-tired discovery structure in XY LLC v. Canadian Topsires (BCSC 2013), the Court held that a successful demand for extra discovery required:

· Must identify additional docs with “reasonable specificity”

· All “relevant” documents within each properly identified class must be produced

· Disclosure on relevance basis, limited to identified categories

· Flexible requirementProportionality, nature of the case, evidence advanced

BUT in addition to extra discovery under Rule 7-1(11):

· The court has inherent jurisdiction to control its own process

· So the Court is able to order the full Guano discovery, beyond what can be identified with “reasonable specificity” under Rule 7-1(11).

· However, doing so must foster the objectives of the Supreme Court Civil Rules

· The Court cannot exercise this discretion on its own initiative, a party must apply for it.

· It will be used very rarely, need a “clear case”.

The Court also identified the Policy behind the new disclosure scheme under Rule 7-1(10)-(14)

· Promote dialogue between the parties, informal resolution of document production wherever possible, because you have to ask the other side first before you can make an application to the court

· Restrains the impulse to make an application right away

· Forces the parties to narrow the issues, creates efficiency

· Exchange of correspondence between counsel is very useful for the chambers judge should an application be made

· Proportionality is now key.

Talking Points

Policy considerations surrounding full v. less-than- full document production in civil litigation

· The old discovery rules, based on the Peruvian guano test, required a party to produce all documents relating to a matter in question

· This included documents that reasonably may contain information that directly or indirectly may advance your case or damage the case of the opposing side.

· This lead to the problem of massive document disclosure in cases where there were thousands, hundreds of thousands or even millions of documents that may or may not contain information.

· This placed an enormous burden of time and massive costs on the party required to disclose in major litigation.

· The courts began to become alive to this problem, as evidenced in Peter Kiewit Sons 1982 BCSC.

· In that case, the court held that where thousands or hundreds of thousands of documents only possibly relevant, the rule should not be slavishly followed—don’t want a party to incur enormous expense for something that may not exist.

· In such a situation, the party wanting discovery must narrow the scope to a manageable level and establish a prima facie case that something relevant will be uncovered

· Policy: Court must be concerned about the cost of litigation, balance the right of reasonable preparation in claim or defence.

· Solutions to the voluminous document production problem were proposed:

· Define and try prelim issue that may avoid the need for further production

· Apply rule in proportion to size, scope, type and complexity of litigation

· Limit disclosure to what is really necessary

· Categorize documents

(1) Docs relied up to support a case – must be disclosed

(2) Docs that adversely affect other party’s case—must be disclosed

(3) Docs that are relevant but don’t fall into (1) or (2)—perhaps allow on extra discovery

(4) Dos not relevant, but might lead to a train of inquiry that leads to relevant docs –perhaps allow on extra discovery.

· Give the judge discretion whether to allow extra discovery

· BC adopted these solutions in the new rules (Rule 7-1)

· Disclosure scheme in BC as laid out by Przybysz v Crowe BCSC 2011

· However the Courts reserved discretion to require the full Guano discovery in XY LLC BCSC 2013

Old Rules: Policy

New Rules: Policy

Guano

· If it is not unreasonable to suppose a document may tend either to advance the case of the party seeking discovery, or to damage the case of his adversary, it should be regarded as a document relating to a matter in question in the action.

· If it fairly leads to a “train of inquiry” disclose…

Peter Kiewit

· However, clear they were not dealing with very many documents in Guano, not like the volume of documents seen in modern major litigation

· The rule must be curbed and require some specificity otherwise it becomes totally unmanageable.

My thoughts

· Seems to be that the emphasis on full disclosure of this kind is so that parties can’t get away with covering their tracks by hiding a ‘train of inquiry’ that might lead to something which is now outside the scope of the litigation, but if it were known, should be included.

· Puts the emphasis on the party receiving disclosure to decide what it all means… and if they miss something, oh well, they had full disclosure so its their own fault.

· Clearly Guano requirements are a product of their time, the 1800s, where people had a lot less documents than they do now.

·

XY LLC

· Promote dialogue between the parties, informal resolution of document production wherever possible, because you have to ask the other side first before you can make an application to the court

· Restrains the impulse to make an application right away

· Forces the parties to narrow the issues, creates efficiency

· Exchange of correspondence between counsel is very useful for the chambers judge should an application be made

· Proportionality is now key.

My Thoughts

· This is a response to the volumes of documents and information that it is now possible to have in the technological age

· The move away from the Guano requirements in the face of the modern technological realities can also be seen in Privest Property v WR Grace BCCA 1992. In Grace, the BCSC ordered that the defendant allow the plaintiff to access millions of documents under a full Guano disclosure requirement. The documents were only potentially relevant, and the BCCA overturned the BCSC, by stating that the discovery rule cannot “authorize a search” to determine relevance.

· Would be absolutely ridiculous and inefficient, huge costs, if you had to just produce everything on full Guano scale everytime

· Also now, there is so much more emphasis on ethics in the profession, so responsibility is being put on the disclosing party to ensure that they put all things that they know to be relevant… rather than responsibility on the party receiving to put it all together.

· Such a system wouldn’t work if lawyers weren’t required to be ethical, because people would just purposefully not disclose things and force the other side to apply under 7-10 or 7-11 everytime.

· Also, preserving discretion to order Guano means that parties that act unethically and don’t do what is required, can still be forced to put everything out there.

· Better system, considering the realities of the modern technological world.

ETHICS

· If something is damaging, you don’t want to give it and your client doesn’t want you to give it

· But you have an ethical obligation to disclose it. Have to do it.

Electronic

now that so much information is stored electronically, how should these documents be produced on discovery?

example: emails, web pages, docx files etc.

not everyone has the same operating systems that would allow them to access the files.

Sedona Canada Working Group

tasked with determining how electronic information should be dealt with in discovery

developed 12 principles

(1) E-information is discoverable

(2) Proportionate discovery

(3) Meet and confer often re: identity, preserve, collect, review, and produce e-information

(4) As soon as litigation anticipated, must take reasonable, good faith steps to preserve potentially relevant e-information

(5) Disclose relevant e-information that is reasonably accessible

(6) No one should be required to search for or collect deleted or residual e-information (unless they agree to or are ordered by the Court)

(7) Party can satisfy its obligation to identify e-information in good faith by using electronic tools i.e. data sampling, selection criteria etc.

(8) Parties should agree ASAP on the format e-information will be produced, and format and content and organization of information

(9) During discovery, agree to or get judicial direction on measures to protect privilege, trade secrets, privacy.

(10) Parties should anticipate and respect the rules of the forum in which the litigation takes places, while appreciating the impact any decision may have in related actions in other forums

(11) Sanctions for failing to preserve, collect, or review or produce if this causes material prejudice (avoid sanctions if you show failure was not intentional or reckless)

(12) The reasonable cost of preserving collecting and reviewing is born by the party producing the information (but a different arrangement could be made in special circumstances.

Spar Aerospace Ltd 2007 ABQB

RATIO: E-information must be produced electronically, because this contains important meta-data (i.e. creation dates and amendment dates). Parties must give all necessary passwords, operating systems and system-related files to allow real access to the produced material. If you satisfy the Court that disclosure required has not been met, the Court may order access to the non-disclosing party’s hard-drive.

Examination for Discovery

conducted orally before a court reporter, the opposing party must attend on the appointed date (or the agreed date)

if you fail to attend, there are sanctions i.e. have your pleadings struck

If a party refuses to agree to a time, you can serve notice (at least 7 days in advance) and they are required to attend. Usually people just agree though.

the purpose is to again information and ADMISSIONS, that can be used at trial or on cross-exam, and that can be used to help settle the case before trial.

Purpose of Examination for Discovery

Ontario Bean Producers Marketing Board 1981 On Gen Div

(a) Enable examining party to know the case they have to meet

(b) To procure admissions to enable one to dispense with formal proof

(c) To procure admissions which may destroy an opponent’s case

(d) To facilitate settlement, pre-trial procedures and trials

(e) To eliminate or narrow issues

(f) To avoid surprise at trial

Perini Ltd v Parking Authority

it promotes early resolution, because you are better able to evaluate your case.

Text

empirical evidence suggests that examination for discovery does NOT aid settlement

· Cases with discovery are more likely to go to trial

· Increases with the intensity of discovery

· Maybe seems to cause settlement merely because settlement is postponed until after discovery, but it is possible those cases would have settled anyway.

Scope of Examination for Discovery: Nwachukwu v. Ferreira 2011 BCSC 1755

· very broad

· ridged limitations destroy the right to a proper examination for discovery

· questions do not need to “plainly reveal their purpose”

· no objections unless it is clearly necessary to resolved ambiguity or prevent injustice

How to Run a Discovery

It all comes down to preparation, flexibility, tenaciousness and planning. Know where you want to go and how you will get there, know the case inside and out.

1. Documents

· Preparation is key… need to look at ALL documents (both parties) and select those that are (a) most helpful for obtaining admissions and (b) necessary to understand the material facts.

· Asking: what do you want to prove on the discovery, find the docs that support you, hurt them or destroy their credibility

· Documents establish what you want and undercut the witness the way you want and are the backbone of an examination for discovery

· Prepare a binder or binders of those documents you wish to exhibit

· Double copy them: one to annote for yourself and a clean copy to exhibit

· Arrange the documents in roughly the order you want to examine on

· Necessary to be organized due to the time limits on discovery… need to be efficient, organize in a way that is best for you i.e. chronologically, by topic, your docs & their docs etc.

· Be prepared to change directions if necessary, depending the responses you get

· The key is to be able to find what you need quickly for a smooth flow—to rattle the witness—need momentum and don’t want to fumble.

· Try not to be completely predictable in your approach, you don’t want the witness to always know what to expect (although sometimes you do, in order to lull them into complacency)

· Know each document you intend to examine on intimately

· Highlight key parts, make notes

· You may ask a question about a document before you show it to the witness

· Let the witness answer questions about the event or transaction, and the show the document which may rebut, contradict or at least refine what the witness said.

· Keep a good pace

· Need to make use of your time, and avoid the witness gaining the other hand

· But if you really need time to find something, take it—the transcript does not show pauses

· Be flexible

· Don’t’ be wedded to a line of questions, be prepared to go through documents in a different way

· Need to base it on the story the witness is telling, not the one you planned for.

· Introduce each document carefully

· “I am showing you a document dated ____ which appears to be a memo from you to John Smith, President of XYZ company. Do you recognize this document?”

· Go through doc to identify names and signatures and be sure to establish the background and any important circumstances surrounding its creation.

· Give the witness a chance to answer truthfully

· Then use the documents to undercut any inaccurate or false evidence

· Ex: if a witness says they didn’t read a doc before signing it, draw their attention to the document and where the witness initialled “I have read the document”

· Witnesses will not know the documents as well as you, and will want to tell the most favourable version of the documents, so let them say any “set speech” and then you will be able to undercut them with documents

· NEVER cut a witness off

2. The Witness

· Not all witnesses are alike

· You need to adjust to the witness you have

· Most are not liars but have human frailties and want to remember events in a way that serves their interests

· Be friendly and polite, avoid hostile siege mentality

· If it is clear the witness is trying to be truthful (however inaccurate) don’t be hard on them, just guide them in the direction you want

· If witnesses are talking it is good, because they will say something they shouldn’t, but you need to keep control of the situation

· If a witness persists in lying, you may need to be stern but never rude or angry

· The witness generally prefers a friendly or neutral tone, most witnesses can be trained to tell the truth

· Let the witness know your familiarity with the subject

· Especially if it is an expert, the witness will respect you more and give more forthcoming answers

· Although sometimes it is prudent to suggest you need to be educated on a matter, some witnesses then go on at length to establish their superiority, which can open important lines of questioning.

Dann v Dhaliwal 2012 BCSC 1817

Where a party is a corporation, who gets examined?

Held: Rule 7-2(5)

· the corporation nominates a representative who is knowledge in matters at issue

· the examining party may examine this person, or

· elect another person they consider appropriate

· but they only get ONE

· unless the party examined cannot adequately respond.

Where there are multiple parties and one corporation, do they each get their own representative?

Held: NO.

· multiple parties with a commonality of interest, even if represented by different counsel, are restricted to one representative

· however if representative fails to provide adequate information, then you can apply for leave to examine a second representative

· if counsel cannot agree on the representative to choose, then the representative elected by the corporation is used.

· But multiple parties don’t have to conduct their examination at the same time, they each get a crack at the witness—not going to compel people to accept another counsel’s examination as their own.

3. Your Conduct As Counsel

· There is no authority figure at an examination for discovery

· Some counsel choose to disrupt or otherwise interfere with the examination of their client

· THIS IS ENTIRELY INAPPROPRIATE

· You do not have the right to go “off record” whenever it pleases you, agreement of the other counsel must be sought (and will normally be given, unless it is clear it is part of a delay tactic)

· It is improper practice to try to give hints and other help while your witness is being cross-examined ex: don’t say “Don’t guess” when a hard question is asked, don’t point to portions of a document that is in front of the witness to assist them, don’t say “take your time” when a difficult question is asked.

· Do not object to questions by making speeches that will assist your client to answer further questions on the subject.

· Objections are appropriate ONLY for improper questions, which very rarely occurs

· State your reasons for objecting, you can’t object just because it is a hard question.

· Proper to object to questions that appear to have no relevance whatsoever, but allow examining counsel wide latitude to move indirectly to the point they want to make.

· Object when the questions are incoherent, misleading, ambiguous or prefaced with a statement that is not true i.e. “now, you were pleased with my client’s work—did you ever write to him about the job he was doing?”—make the questioner rephrase the question so that the first part is also a question, and not a statement.

· If your client seeks your assistance, do not provide it but simply tell them to answer the question that is being posed.

· Do not do anything to delay the examination, such as encouraging your client to take lengthy breaks, or by raising inappropriate objections to frustrate the discovery and use up the 7 hours.

· NEVER LOSE YOUR TEMPER with opposing counsel or the witness, no matter what.

· Instead, find a time to bring the matter up before the court, such as seeking further time because of what you perceived to be an obstruction.

Mainstream Canada v. Staniford 2011 BCSC 1692

Example of BOTH SIDES behaving badly on examination for discovery.

Facts: Defamation case, ptf is large salmon farm and def is an activist with a website. Ptf claims that by comparing salmon farms to big tobacco, the def made 54 defamatory statements. Ptf wants longer discovery, because discovery was very unsuccessful… counsel kept saying def wasn’t being specific in answering the questions, but counsel never really rephrased their questions or anything to help.

Problems with counsel’s conduct:

Ptf’s lawyer

Defendant (witness)

· Needlessly repetitive

· Too slow

· Lack of preparation

· Counsel should have read scientific articles so that he could challenge the witness on them

· Rambling

· Stalling

· Answers are irrelevant

· Unrepresented (so no preparation)

RESULT: The Court is being stern with both parties, awarding extra time because there is no way you could reasonably complete the X for D in 7 hours (54 defamation claims!), but awards no costs because they are both to blame for the problems.

Nwachukwu v. Ferreira

Example of counsel for the examined behaving badly

· because of the time limit, counsel for the examined has an obligation to not unduly interfere or object so as to waste time.

· Where interventions appropriate, state objection in the form of a question and the reasons for it but DON’T make comments, suggestions or criticism.

Grounds for objection:

(a) Relevance counsel should have broad discretion in examination for discovery, don’t object on relevance very often

(b) Confusiongenerally, this is for the witness to deal with and not counsel… (Hayley: but if super confusing it is better to object)

(c) Repetitiononly in extreme circumstances where it constitutes intimidation is this a ground for objection

(d) Inadequate foundationNOT a ground

(e) Compound questionsif they are stating facts or asking multiple questions in one, you can use this.

(f) Privilegea witness cannot be asked to disclosed counsel’s advice or case/ work product, what facts will be relied on in counsel’s quantum etc. you should definitely object to a question that elicits this.

Commentary:

· Counsel also had a paralegal give an affidavit containing improper hearsay, argumentative and legal opinion… lawyer should not have drafted this as it was incompetent, lazy and hurt his client’s case.

· This is a terrible way to start off with the court

· Don’t accuse the court of bias unless you are really really serious about it… will not go well for you

· Can’t just refuse to answer and then give answers in writing, this practice is for highly complex corporate witness who doesn’t have the answer.

4. Where YOUR witness says something wrong during examination for discovery

(a) Do nothing

(b) Re-examine them right away

· You can’t cross-examine your own client, but where your client has said something on examination for discovery that is wrong, you can re-examine them

· This must happen within the 7 hour time limit

· This is a risky move, because it may just make things worse if your client re-emphasizes the wrong point

· You could warn your client that if you re-examine them it means they have said something wrong, but if you do that, you may put them on edge. They may then be trying to guess what they said wrong, and end up saying another thing wrong!

· It is unclear whether you can brief them first… this is probably unethical

(c) Communicate with the other side

· Send written correspondence to opposing counsel informing them of the mistake, and offer to allow them to re-examine your client on this point or show them evidence that proves the statement was false.

· At trial, during your direct examination, ask an open ended question to your client and you’re your witness so that they give you the right answer, admit to their mistake on discovery and explain why it happened and that this error was communicated to the other side as soon as it was realized

· This will greatly lessen the impact of cross-examination on prior inconsistent statement.

How to Use at Trial

*Answers given on examination for discovery are technically hearsayfalls under the admissions exception for parties, or prior inconsistent statement for other witnesses.

*Can’t do an examination for discovery after trial but before appeal.

1. Read into evidence

· Any part of an examination for discovery of an adverse party (only) if otherwise admissible, may be read into evidence.

2. Use to impeach

· Same manner as any prior inconsistent statement

· For both party and ordinary witnesses

· Where only a part of a statement used to do this, the trial judge may order qualifying parts to be included Smith v BCTB BCCA 1988

Talking Points

Ethical obligations and how to conduct yourself on discovery

Interrogatories

A written question that is formally put to one party in a case by another party and must be answered.

Credential Services v Qtrade

Purpose, scope and limitation of interrogatories:

· Pre-trial tool designed to narrow and focus issues, reduce length and expense and eliminate surprise i.e. promote the objectives

· Only legitimate use is to obtain admission of facts which is necessary for the party interrogating to prove, in order to establish their case

· Can’t seek information on matters that you don’t need to prove but that indirectly help you.

Requirements:

· Must be relevant to a matter in issue

· Not in the nature of Cross-examination (no leading questions)

· No inclusion of a demand for discovery documents

· Should not duplicate particulars

· Not used to obtain names of witnesses

· Narrower in scope than cross-examination for discovery (can’t be repetitive like you can on examination for discovery)

· The purpose is for admission of facts necessary to prove your case

· Only one means of discovery, can defer response until after the other done.

Policy:

· Needs to be prop