Table of ContentsIntroduction and Themes......................................................................................................................................................2

Ethics.....................................................................................................................................................................................4

Limitation Periods.................................................................................................................................................................5

Concepts...........................................................................................................................................................................5

Changes.............................................................................................................................................................................5

Transition..........................................................................................................................................................................7

Discovery...........................................................................................................................................................................7

Practical Advice.................................................................................................................................................................8

Talking Point......................................................................................................................................................................8

Res Judicata.........................................................................................................................................................................10

Cause of Action Estoppel.................................................................................................................................................11

Issue Estoppel.................................................................................................................................................................11

Admin Tribunals and Issue Estoppel............................................................................................................................11

Doctrine of Abuse of Process......................................................................................................................................12

Talking Points..................................................................................................................................................................14

Pleadings.............................................................................................................................................................................15

History.........................................................................................................................................................................16

Modern Pleadings.......................................................................................................................................................16

Talking Points..............................................................................................................................................................17

Striking Pleadings............................................................................................................................................................19

Talking Points..............................................................................................................................................................20

Summary Trial.....................................................................................................................................................................21

Talking Points..................................................................................................................................................................22

Summary Judgment............................................................................................................................................................22

Discovery.............................................................................................................................................................................23

General............................................................................................................................................................................23

Electronic........................................................................................................................................................................26

Examination for Discovery...............................................................................................................................................26

Interrogatories................................................................................................................................................................31

Depositions.....................................................................................................................................................................32

Access to Justice..................................................................................................................................................................33

Experts................................................................................................................................................................................361

Class Actions........................................................................................................................................................................41

Settlement & Mediation......................................................................................................................................................46

Introduction and ThemesThe 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

o Is their law for the client’s complaint?o Assume facts are proveable to determine if legal remedy existso Then consider probability of client’s facts being accepted by the courto Does the defendant have money to pay?

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o 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

Themeswe 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

o Right to be Heard o 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

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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 Activismo This is called ‘neutral

partisanship’: the moral buck passes to the client

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

o The moral decision belongs to the client not the lawyer

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

o 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)

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

o There needs to be a meaningful dialogue among professionals.

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

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

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

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

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

o 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 Blackhouse4

- 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

ConceptsPurpose 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.

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

Old Act New ActBasic 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.

o Includes exemptions from old acto 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)

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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 disabilityRunning suspended: if person becomes under a disabilityClock 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 contributionAmending 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.

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Transition

DiscoveryClaim 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 circumstancesSpecial Discovery Rules:

- Minors s.18- Persons under disability s. 19- Special situations:

o 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

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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. o Claims for future interest in trust property s.13o 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.

o 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)o 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.

o 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 PointWhile 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.

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Res JudicataRES 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

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

o No one really knows how to define this, elastic concepto Consider, would the party have been bound by the previous judgment if it had gone the other way?o 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 jurisdictiono Prior Court can be in a different jurisdiction, still enforceable

(3) Prior adjudication was on the merits of the caseo Default judgment constitutes a decision on the meritso If decision based on procedure, then res judicata doesn’t apply

(4) Prior decision was finalo 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 ONCAo 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

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

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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 2005Otherwords: 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 EstoppelRequirments:

(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 EstoppelIn 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.

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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 ProcessThis 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 actionsHLInstead 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 1986abuse 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 2003FACTS: 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.

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

o 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. o Doesn’t have the specific requirements of res judicatao Offers discretion to prevent re-litigation for the purposes of preserving the integrity of the courts processo MY THOUGHTS o 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 2011Where 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

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Talking PointsThe move towards abuse of process and away from issue estoppel:

o they just like it because it doesn’t have strict ruleso 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),

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

o 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”.

o The con for this is that it makes it a lot less more predictable. o Discretion is not a bad thing as long as the court is clear and open re: what their discretion is based upon. o Give factors and consideration, guidance for lower courts but also to help people predicto the rule of law means that people know what is required of them etc. o 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.

o 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.

o 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.

o 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.

o 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…

o 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.

o 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.

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

o 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?o The court just wants to find what is justo Ex: Reliable Mortgages, they didn’t find it because there was a question of whether the other party committed

fraud.

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

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PleadingsPleadings primary documents by which actions are commenced and defended.

Overview of Processo Based on exchange of “alternate allegations”o Issues identified via pleadingso Ptf sets out relief and facts that give rise to relief in “notice of civil claim”o 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 claimo If defendant does not respond nor move to strike, they risk summary disposition through default

Types of Responseso Admissions

- Required to admit true allegations- Admitted allegations are deemed facts, no proof required

o Denials- Allegations denied must be proved at trial

o No Knowledge- If you don’t know anything about alleged fact- If defendant pleads no knowledge, then these facts must be proved at trial

o 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.

o Counterclaimo 3rd party claim

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

Replyo Where the Response to Civil Claim contains new allegations, the ptf may replyo If no reply is filed, the ptf is deemed to deny the new allegationso 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 & Contento Material Fact Pleading

- Notice and issue definition- Degree of specificity depends on nature of allegations (more specificity if allegation moral wrongdoing)

o Party served with pleading may also request additional particulars in relation to allegations in the pleadingo If particulars are not provided, can make a motion for particulars—Court ordered compelled production

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Historyo 19th century pleadings became mired in technicalities and arbitrary distinctionso 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…”

o 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 PleadingsIt 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.

o Where a cause of action is not pleaded, the case cannot be decided on that basis Rodaroo Policy: unfair to bring in new issues, parties are entitled to know the case they have to meet Rodaroo 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 1980o 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.

o 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.

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

o 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”

o 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.

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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.

o Material Facts = facts necessary to establish a cause of action or a defenceo Err on the side of inclusiono 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)

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

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.

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

o 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.

o 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.

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

Talking PointsDo we need pleadings?

o 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

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

o If you want something more individualized, this will cost more moneyo Maybe the key is just to make pleadings more flexible rather than to eliminate themo “A pleading by any other name…” Is this really possible?o Pleadings are necessary to: know the scope of the case, set parameters for discovery etc. o But if pleadings are very technical, it may create injustice as a merited claim may fail on a defect in the pleading

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o 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?o Robinson v. Jacques Whitford Environment Ltd., 2004 BCSC 1424, citing MacLachlin and Taylor’s British

Columbia Practice, 2nd ed. At para 20:

o “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”

o 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?o In the past, zealous advocate demanded trial by surpriseo 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)o More collegiality is expected of lawyers, but how to balance this with your duties as an advocate in an

adversarial system?o My thoughts: Lawyers have to remember they owe an ultimate duty to the Court as officers of the court. o 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. o 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. o Shouldn’t be trying to win by a trick, or by posturing, or by threatening litigation when you don’t have a claim.o 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. o In reality, there will always be some advocates who are better than otherwiseo 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.

o Especially important if the opposing side is unrepresented. o 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)o Pro forma, just plead something (even though you aren’t supposed to do this)o And then seek to amend it later when you get more information.

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Striking PleadingsPleadings 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 1990o Only if the action is certain to fail should relevant portions be strucko The test is not based on the plaintiff’s chance of success, just need some chance of successo 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. o 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. o YOU ARE NOT CONSIDERING ISSUES AS YOU WOULD AT TRIAL… if there is an arguable point of law, then courts

will not strike. o 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 2011o Uses plain and obvious testo Don’t consider evidence or possibility of more evidence, it’s only the material facts in the pleadings you

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

o 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.

o 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)o Used for when a pleading is more than just ‘bad law’o These three rules over-lap, so often just bring all of them (but not (a)—that one is different)o Must use affidavit evidence, because it depends on the factual context and background of the situation o Apply same test as aboveo 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.

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

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

o “otherwise an abuse of process” Examples: res judicata, collateral attack, or improper procedure generally—serious claim need

significant evidence to support

Talking PointsHunt 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:

o 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.

o 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.

o If the material facts as plead had no hope of satisfying a negligence claim, it should be struck. o 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. o Why should we waste resources on such a claim? o 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.

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

o 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.

o 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.

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Summary TrialSummary 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.

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

Inspiration Management v McDermidA 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 applicationo Amount of money involvedo Complexityo Urgencyo Prejudice from delayo Cost of conventional trialo Sufficiency of evidenceo Other matters

Conflicting affidavits are not a bar to summary trial!o Can’t decide solely on the basis of conflicting affidavits, but other evidence may make it possible to find

necessary facts for judgmento 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)o 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)o 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.

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

o 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

o 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 Judgmento Can only be used where no defence is raisedo 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. o Historically used for liquidated claims, was a way to move things along in debtor/creditor law

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Discovery

GeneralThe 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:

o Documents relating to a matter in question must be disclosedo This includes documents that reasonably may contain information that directly or indirectly may advance your

case or damage the case of the opposing side.o 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. o 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 uncoveredo 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:

o 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)).

o 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. o 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)

o 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.

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

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- 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:

o Must identify additional docs with “reasonable specificity”o All “relevant” documents within each properly identified class must be producedo Disclosure on relevance basis, limited to identified categorieso Flexible requirementProportionality, nature of the case, evidence advanced

BUT in addition to extra discovery under Rule 7-1(11):o The court has inherent jurisdiction to control its own processo So the Court is able to order the full Guano discovery, beyond what can be identified with “reasonable

specificity” under Rule 7-1(11).o However, doing so must foster the objectives of the Supreme Court Civil Ruleso The Court cannot exercise this discretion on its own initiative, a party must apply for it. o 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)o 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 courto Restrains the impulse to make an application right awayo Forces the parties to narrow the issues, creates efficiencyo Exchange of correspondence between counsel is very useful for the chambers judge should an application be

madeo Proportionality is now key.

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

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

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

o 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.

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

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o 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

o BC adopted these solutions in the new rules (Rule 7-1)o Disclosure scheme in BC as laid out by Przybysz v Crowe BCSC 2011o However the Courts reserved discretion to require the full Guano discovery in XY LLC BCSC 2013

Old Rules: Policy New Rules: PolicyGuano

- 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-

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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.

ETHICSo If something is damaging, you don’t want to give it and your client doesn’t want you to give ito But you have an ethical obligation to disclose it. Have to do it.

Electronicnow 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 Grouptasked with determining how electronic information should be dealt with in discoverydeveloped 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 Discoveryconducted 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 struckIf 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.

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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 DiscoveryOntario 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 Authorityit promotes early resolution, because you are better able to evaluate your case. Textempirical evidence suggests that examination for discovery does NOT aid settlement

o Cases with discovery are more likely to go to trialo Increases with the intensity of discoveryo 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 1755o very broado ridged limitations destroy the right to a proper examination for discoveryo questions do not need to “plainly reveal their purpose”o no objections unless it is clearly necessary to resolved ambiguity or prevent injustice

How to Run a DiscoveryIt 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

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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 off2. 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.

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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:

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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

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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 PointsEthical obligations and how to conduct yourself on discovery

InterrogatoriesA 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:o Pre-trial tool designed to narrow and focus issues, reduce length and expense and eliminate surprise i.e.

promote the objectiveso Only legitimate use is to obtain admission of facts which is necessary for the party interrogating to prove, in

order to establish their caseo Can’t seek information on matters that you don’t need to prove but that indirectly help you.

Requirements:o Must be relevant to a matter in issueo Not in the nature of Cross-examination (no leading questions)o No inclusion of a demand for discovery documentso Should not duplicate particularso Not used to obtain names of witnesses

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

o The purpose is for admission of facts necessary to prove your caseo Only one means of discovery, can defer response until after the other done.

Policy:o Needs to be proportionate to the amount involved, the importance of issues and complexity of disputeo Consider: ambiguity, redundancy, remoteness, time consumption, complexityo “Use the best tool that will achieve the best result for the least effort and cost”

Loo v. Alderwoods 2010 BCSC 1471

Test: is the interrogatory necessary for disposing fairly of the action?o Generally, the more research required the more appropriate interrogatory given because of the expansive time-

frame. However, questions that require a narrative answer are more appropriate for examination for discovery.

Can’to Use Cross-examination styleo Ask for conclusions of lawo Ask for irrelevant informationo Ask for document productiono Ask questions that are too broad or require widespread unreasonable inquiry—i.e. impossible to answer

truthfullyo Ask for names of witnesses.

Talking PointsWill interrogatories take on greater significance now that oral discovery is limited to seven hours?

o The purpose of limiting discovery to seven hours is to honour the objectives of the new supreme court civil rules “just, speedy determination” on the “merits” Rule 3-1(1).

o So if by limiting examination for discovery we just increase the use of interrogatories by giving them greater significance, this perhaps will ‘undo’ any benefit from limiting discovery time frame

o However, because of the time limit, counsel may be more encouraged to use interrogatories where they are appropriate—perhaps before you would just do it on examination for discovery because you weren’t worried about the time. But now that there is a limit, you will turn your mind to considering the option of interrogatories before wasting time.

o Interrogatories make sense when you need technical information or detail that requires multiple people to figure out, and this information is not in dispute just needs to be figured out.

o This is because the court wants to “Use the best tool that will achieve the best result for the least effort and cost” Credential Services v Qtrade

o In that sense, the usage of interrogatories may increase, and this would be complimentary to the change to the seven hour time limit, because it would foster the objectives.

o However, the courts must rigorously ensure that interrogatories are only being used for their proper purpose, otherwise any benefit in terms of efficiency and cost gained through limiting examination for discovery will be lost.

o This will ensure that the advantages of examination for discovery over interrogatories remain (see Loo v Alderwoods) and

o Thus if interrogatories are not the appropriate tool, they cannot be used just to get more discovery time and get around the 7 hour time limit, nor would counsel choose to take that route.

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Depositionsout of court oral testimony of a witness that is reduced to writing or video recording

Seder v. ICBCDepositions are only available where there is a legitimate reason to have one.

Policy: balance between the benefit of live testimony and the reality that that is not always possible. Preserve evidence which otherwise be unavailable, emphasis on availability of witness NOT convenience of counsel.

Problems with Deposition: o Defence may not properly anticipate ptf’s case and not give required evidenceo Less efficient to object b/c it isn’t live

BUT now with video conferencing, this is a great option, can be used if the witness is just ‘reluctant to travel’ to give live testimony.

Gill v. A & P Fruitwe shouldn’t just automatically allow video conferencing.

Problems with video conferencing:o Counsel is not with the witnesso Court cannot control the other settingo Effective examination hard if detailed examination of documents is requiredo May be impossible to interrupt the witness if the technology doesn’t allow them to hear while they are speaking

Talking PointsWhat allows people to get out of going to trial?

o Our system is based on viva voce evidenceo In Seder the witness was reluctant to travel, so the court allowed for video-conferencing and emphasized its

benefits. o However in Gill, the court emphasized the problems with video conferencingo Perhaps this is because the Court in Gill had had more personal experience with video conferencing, so was

more alive to the issues it presents. Or perhaps courts have all become more attune to this as it becomes more common.

o In Gill, it was satisfactory to order depositions, rather than video-conferencing, because the Dr.’s would be in two different time zones and one doctor did not have a set travel schedule so setting it up may be difficult.

o The Court also noted that a deposition is more effective than live video-conferencing. o However in Gill, the witnesses that were being depositioned were the defendant’s experts—so the policy

problem that occurs with depositions, that the defendants may not know the case to meet and not ask the right questions, was not a factor.

Access to JusticeHAYLEY: too expensive, but unrealistic to say lay person could navigate on their own b/c the rules are too complicated… maybe you could have two tiered system, one where you pay and get all the rules, and another where you get justice for cheap but you don’t get the safeguards of all the rules….

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PERFECT JUSTICE IS REALLY EXPENSIVE.A. WHAT IS “ACCESS TO JUSTICE” and IS THERE A PROBLEM?

o Canadian Bar Association report Systems of Civil Justice Task Force Report, 1996, p. 11 “… many Canadians feel that they cannot exercise their rights effectively because using the civil justice system takes too long, is too expensive, or is too difficult to understand."

o Cromwell J., (during Viscount Bennett Memorial Lecture, 2011), made several important points:1. He defines the issue of access broadly and suggests that access to justice is about more than access

to lawyers and to courtrooms. Access should include, for example, access to legal information as well as access to non-traditional or out-of-court dispute resolution processes.

2. Concludes that there is a "serious problem" with access to justice 3. He believes he is reflecting the views and experience of most other lawyers and judges. 4. He expresses concern about the impact of an inaccessible justice system on public confidence as well

as the fundamental and very important relationship between access to justice and the rule of law.

B. WHY DOES IT MATTER?

o In her book “Judging Civil Justice”, Hazel Genn explores the social significance and social purpose of civil justice as “sustaining social stability and economic growth by providing public processes for peacefully resolving civil disputes, for enforcing legal rights and for protecting private and personal rights.”

o Clearly, in order for the courts to properly fulfill this essential social purpose, they must be reasonably accessible to the public.

o The crucial role of the justice system in maintaining social order and in promoting social and commercial well being has long been recognised, as has been the corresponding right of access to the courts.

o In Bremer Vulcan v. South India Shipping Corp. [1981] AC 909, HL Lord Diplock observed, “Every civilized system of government requires that the state should make available to all its citizens means for the just and peaceful settlement of disputes between them as to their respective rights. The means provided are courts of justice to which every citizen has a constitutional right of access.”

o Of course, having the right of access is one thing; having the personal, intellectual and/or financial capacity to actually exercise that right is quite another.

o Our law guarantees the right of access to the courts but not usually the means to exercise it. o One might well ask, what is the value of a legal right that cannot, for practical reasons, be exercised?o

C. WHO IS AFFECTED BY THIS PROBLEM?

With respect to the scope of the access to justice problem it is important to note that:

• This is a problem not just in Canada, but in every common law jurisdiction in the world • While it takes somewhat different forms, it is as serious a problem in the criminal law context as it is in the civil

and family law context. The criminal courts are characterized by increasing substantive legal and procedural complexity. This complexity lengthens trials and drives up the cost of legal representation. At the same time, legal aid budgets have been declining as cash-strapped governments look for savings. The result is a growing number of accused persons attempting to defend themselves without the benefit of legal representation

• The justice system is particularly inaccessible to the poor and the marginalized. This can be very problematic insofar as an unresolved civil legal problem or a poorly managed criminal legal problem can be the tipping point for the spiral into social marginalization. As Stephen Wexler has said, “Poverty creates an abrasive interface with society: poor people are always bumping into sharp legal things.”

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• Ab Currie writes: “the civil justice system has largely ignored the problems of the poor. Lawyers and courts tend to deal with only the most serious problems, and the problems of those who have the resources to access the legal system. The problems of the poor and lower income groups are what Professor Nader has called the “little injustices” that feature prominently in the lives of the vulnerable citizens of our society. Although these problems may not be considered important enough to come to the attention of the courts or other authorities, the problems experienced by the poor are important to them.”

• But lack of access is not just a problem for the poor. A columnist for the Vancouver Sun reported on the speech made by the Honourable Beverley McLachlin, Chief Justice of the Supreme Court of Canada, under the headline "Legal system doesn't work for ordinary people, top judge says":

• The problem is perhaps even more difficult than this. Justice McLachlin suggests that while cost and complexity present formidable barriers for the poor and the middle class, we have “wonderful justice for corporations and for the wealthy”, but the wealthy might not always agree.

• those who theoretically could afford protracted litigation are choosing not to afford it, so to speak. • Even the rich are not enthusiastic about spending large amounts of money and taking long periods of time to

resolve their legal problems. • There is a clear trend, particularly among large, cost-conscious and legally sophisticated corporations, toward

dispute resolution policies and strategies that reduce engagement with the legal profession and rely increasingly upon conflict prevention, early negotiation, arbitration and mediation to resolve disputes outside of the court system.

D. CONSEQUENCES of LACK of ACCESS to JUSTICE

o “Access to Legal Services in Canada: A Discussion Paper” Melina Buckley LL.B., PhD,.

“civil legal needs arise frequently, touch upon fundamental issues and can create minor inconvenience or great personal hardship. The disruption caused by unresolved legal problems is significant and can cause cascading problems for individuals and families. Legal problems tend to “cluster”, meaning that problems tend to co-occur and can be grouped together. This research confirms that there is an important connection between unresolved legal problems and broader issues of health, social welfare and economic well-being. While every group experiences civil needs, the poorest and most vulnerable experience more frequent and more complex, interrelated civil legal problems.”

o As Ms. Buckley suggests, the research is very clear that unresolved legal problems tend to generate not only additional legal problems but they also increase the likelihood of problems with physical health, mental health, substance abuse, and violence.

o Another order of consequences arises inside the justice system where we see growing numbers of citizens trying to navigate the civil and criminal courts without the assistance of counsel together with diminishing public confidence in the justice system and increased risk of vigilantism.

o In his 2008 “Report of the Legal Aid Review” (Ontario) Professor Michael Trebilcock discusses the link between accessible courts and economic prosperity.

If the rule of law is considered to be based on laws that are knowable and consistently enforced such that individuals are able to avail themselves of the law, then individuals must have the tools to access the systems that administer those laws… part of the obligation that attaches to the rule of law, especially as that law becomes more complex (as many of our laws have, including criminal law, family law, immigration law, and social assistance law) is for the government to provide the resources so that people can not only know the law, but also gain access to it.

o Our western democracies are premised on the principle of the rule of law. The first line of the Canadian Charter of Rights and Freedoms for example declares that, “...Canada is founded upon principles that recognize the supremacy of God and the rule of law...” What the above quote suggests is that access to justice is so intimately

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connected to the rule of law that the legitimacy of the state ultimately depends upon citizens having adequate access to the law.

E. RESPONSES and REFORMS

This is why Professor Trebilcock asserts that the state has an obligation to ensure that citizens have the resources to effectively exercise their rights and responsibilities under the law. How have governments and other players in the justice system responded and what efforts have been made to enhance access? There have in fact been dozens of investigations and reports and hundreds of recommendations made over the last 20 or 25 years. These recommendations typically include:

• increased use of non-adversarial and out-of-court dispute resolution processes such as mediation and collaborative law

• increased use of judicial mediation or judicially led settlement processes • increased focus on dispute prevention • increased availability of public legal education and legal information • creation of front end "point of entry" programs and services to provided advice, direction and orientation to self

represented litigants at an early stage of their dispute. These programs often include a triage function to assess and steer cases toward community resources, mediation or litigation based on their unique needs and available services

• simplification and streamlining of civil, family and criminal court procedures, as well as creation of summary procedures to facilitate expedited resolution of civil and family legal issues

• creation of plain language, "user friendly" court forms • increased legal aid • increased reliance on information technology to efficiently provide legal information, complete legal forms,

manage documents and resolve disputes online • urging law schools and professional governing bodies to support affordable dispute resolution by educating law

students about collaborative, problem-solving approaches to dispute management and encouraging lawyers to adopt a settlement orientation

• encouraging lawyers to provide some legal work at reduced rates or for free (“pro bono”)

Various noteworthy reforms have in fact been implemented in response to such recommendations and there have been many inventive and helpful changes made to the justice system. However, as welcome as many of these changes have been, they have not been sufficient and the search for a more complete solution to the access to justice problem continues.

Experts(1) The perfect expert

- Has experience as an expert, but not so much that the “professional witness label applies” Ex not like the witness in Warkentin If professional, court may assume not impartial

- Has never been undercut or criticized by a court before Ex not like the witness in Carr v Simpson

- Has acted for both plaintiffs and defendants- Willing to give the time and effort necessary to be fully prepared

While experts are well-paid, they are very busy, big names may not have the necessary time so may not be worth it.

- Able to refine and build on the issues on which his or her opinions are sought.

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Help you to know what the real issues are, and how their expertise can be of assistance. - A good writer who can prepare a lucid report that even lay-persons can follow

Lawyers used to write the expert reports, because experts can be such bad writers. You need something the court can understand, but you are no longer allowed to write the

report yourself!- Articulate and able to explain his or her subject matter and opinions to counsel and the Court- Has an engaging personality that will play well in a Court

Don’t hire an expert who is arrogant- Able to stand up to the rigors of examination- Doesn’t have to be an academic, can have acquired special skills or knowledge through experience as

well (Mohan SCC)- Practical experience may be more persuasive than an academic—don’t discount real world experience

(2) When is an expert required?- Subject matter of the litigation is unintelligible to the layperson, and expert evidence is NECESSARY to

enable the trier-of-fact to draw proper inferences from the relevant facts- Can also get an expert purely for advisory and not testimonial purposes.

(3) The law governing expert evidence- Admitted as an exception to the rule against opinions- Mohan test:

Relevant Necessary No violation of exclusionary rule Expressed by properly qualified expert Probative value outweighs the prejudicial effect

- If it is a novel area, there is an additional amount of scrutiny so be aware of this.

(4) The Role of Experts- Rule 11-2(1) and (2): expert witnesses are required to be impartial- This does not mean that you have to find an unfavourable expert, if you get an expert report that

doesn’t support your case just don’t use it. - Testimonial experts perform a quasi-judicial function, they are de facto delegates of an aspect of the

judicial fact-finding- They are held to an exacting standard of probity and objectivity- Needs to be independent (mind and judgment) and imparitial (not allow partisan interest to deflect

analysis from its true course)- If the expert belongs to a certain group, they may have a built in bias and not be able to testify- Someone that always gives the same opinion is likely not impartial- Look at the record, read all the literature, make sure they are contradicting themselves or the majority

of their field of study- Because experts files and all correspondence is disclosed, it is very easy to catch lack of objectivity

Every draft is also included, so if it varies hugely or if you tell them to change their opinion the other side will know

Avoid by properly preparing the witness and how changes will appear, and how all communication will appear

(5) Ethical Considerations- Counsel’s dealings with experts must reflect awareness of and respect for testimonial expert’s over-

arching duties to the court- Improper influence—both active and passive—must be avoided

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- Counsel have circumscribed role in the preparation of reports, can only influence form NOT content. - Counsel have a critically important role in the formation of and preservation of the expert’s file. - Unethical to scoop up all experts so that the opposing party will not be able to find an expert (even

though that may be legal)

(6) Selecting and Retaining Expert Witnesses- Decide whether an expert is need for advice or for testimonial purposes (risky to have both, because the

advisory capacity doesn’t have to be impartial)- Analyse the facts to determine: what opinion evidence is needed; what kind of expert could give the

opinions sought; and what risks are involved in putting forward expert evidence. An expert can help with this

- You may not need an expert, but instead can just cross-examine the other side- Just because information is technical does not mean that you need an expert- Can be hard to find the right expert, do some research, look at CVs, publications, court appearances of

potential experts and eliminate those who have been criticized by the court or sanctioned for ethical transgressions.

- Meet with potential expert and: Canvass potential conflicts If none, describe the case briefly and explain issues requiring expert evidence Consider carefully the expert’s demeanour and experience as a witness Refine your understanding of the expert’s relevant expertise Discuss the expert’s practical experience and/ or academic work that might be relevant Discuss the expert’s court experience, including any negative judicial commentary Let the expert talk so that you can get a sense of them as a witness and how they respond Explore the expert’s views on important issues Explain the litigation process Explain ethical/ legal issues relating to the expert’s role Explain billing issues Do not retain an expert without instructions and without first considering other possibilities Do not do all the talking!

- After canvassing, select the best candidate, move quickly because experts are busy- Get a retainer letter signed- Give them a statement of assumed facts (things you are planning to prove at trial… if you don’t prove

them, the opinion is worthless)- Have ongoing meetings, etc.

(7) Preparation of the Expert’s Opinion- Don’t tell the expert to change their opinions given in a draft report on substantive matters- Do feel free to comment on matters of structure, style, mechanics and legal/ ethical requirements- Don’t simply ask an expert to write a report- Do spend time with the expert suggesting ways to make the explanation of the opinions more

understandable to a court- Don’t file a report that you know to be unsatisfactory- Do request a more thoughtful, logical and lucid draft (taking care to focus on form rather than the

opinions themselves) or simply consider a plan B (new expert? No expert?)- You cannot write the report!!

(8) Preparing an Expert for Trial- Inform the expert witness of his or her duty to the court- Inform them of court and rules, mandated deadlines and time commitments

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- Ensure they are fully conversant with their own opinion, including incorporated work product and the learned writings of others.

- Inform them of general guidelines for giving evidence- Ensure that they are familiar with all the material issues of the case

(9) Cross-examination of an Opposing Party’s Witness- Prepare:

are the Mohan criteria satisfied? Identify potential bias identify area of cross-exam identify factual assumptions and premises that are not consistent with the evidence at trial consider whether the underlying science is novel identify any deviations in methodology or reasoning from the relevant scientific literature identify any inconsistencies within the own report or drafts

- Must: Understand in detail the report tendered by the opposing party’s expert, including all schedules,

charts, diagrams, graphs, calculations and other back-up, explanations and illustrations Be familiar with all publications of the expert on the same or related subject matter Review learned treatises thatmight be put to the expert to contradict or weaken his or her

opinions- Issues to consider:

Does the expert have the necessary expertise? Does the expert ever stray outside that expertise in the report? Has the expert published on the subject of the opinion, or at least in the general rea or on

related issue? Has the expert been challenged or undercut on his opinions by others in the field? Is the expert conflicted, biased or partisan? Would the expert’s conclusions change if his or her assumptions were inaccurate and were

altered to accord with the evidence? Compare themes, theories methodologies of the expert to the standards of the

disciplineshow they depart from the norm. Does the expert’s report contain illogical or incomprehensible passages? Are the experts’s opinions based on outmoded and discarded theories or on novel or untested

“science”? Did the expert obtain assistance in writing the report and if so, is the expert capable of judging

the quality and accuracy of the assistans work? Are the assistants anonymous? If so why were they kept hidden? (it must be disclosed if there

were other writers and expert needs to have supervised them) Did the expert comment on discovery transcripts or on expcerpts taken out of context, rather

than on assumed facts? Does the report offend the “ultimate issue rule”, containing conclusions that the court must

decide? Does the report contain inadmissible legal argument?

- The goal is to show the expert is conflicted, biased and partisan. - Be polite, but do not be deferential or quick to give up on a good point- If you know a lot, they will be more likely to accept your suggestions- Establish error early on, which will shake the witness and they will continue to falter- Know when to stop! End on a high point, there is the potential that a witness may recover and fix and

earlier mistake if you go on longer.

(10)Concluding Comments

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- Can make or break a case, so very important to pick the right expert- Need to know and comply with ethical obligations- Cross-exam requires detailed preparation- Prepare your witness! (demeanour counts for a lot)- Report needs to be: logical, concise and clear and cannot be argumentative or defensive in tone.- It is much more difficult to deal with experts these days because they get to write their own reports and

all correspondence and drafts are disclosed.

Main Issues with Expert Witnesses:(1) Impartiality

- Carr v. Simpson: Expert was the inventor of the technique and had a proprietary interest in it. He had not been up front about this in previous trials, and the court commented negatively. However in this case, he was candid and forth-wright, so his opinion was allowed.

- Moll v. Parmar BCSC: experts must be objective. If an expert has already taken a strong stance or advocacy position, then they are not objective.

- Warkentin v Riggs BCSC: expert witness must be neutral and impartial, NOT an advocate but giving a balanced opinion. Goal of expert is NOT to disguise argument as opinion, but to assist court with fact finding. Evidence of bias:

Bold font to highlight what supports client and omission or non-bold font of that which does not Selective citation from textbooks, eliminating what does not support the client Expert not candid nor willing to admit selective citation Expert called themselves an “expert medical legal consultant providing opinions on behalf of

patients with chronic pain who are seeking legal remedies”(2) Timing Provisions

- Moll v. Parmar BCSC (from Master’s judgment): parties have until 84 days prior to trial to submit a report. As long as you respect that deadline, the Court will not interfere based on the timing of the application—that is a matter of strategy. Adjournment of trial means new 84 day deadline

(3) Why have them: Strategic/ tactical consideration- Needs to be necessary for trier of fact (rule of evidence)- Unintelligible subject matter

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Class ActionsPolicy: Why Class Actions are Good

o Class actions create access to justice, because people with small claims can’t bring it forward (not worth it) on their own. But if they join together then it is affordable and worth it.

o Ensures efficiency of the courtso Prevents large companies or the government from doing bad things and getting away with it.

What is a Class Action?o A representative proceeding commenced pursuant to statute – e.g. B.C.’s Class Proceedings Acto 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 classo Not the only form of mass litigation, but now the most common

When Are Class Actions Used?o The Sky is the Limito Products Liability: Hoy v. Medtronic, Inc., (defective pacemaker leads)o Environmental Law: Ring v. Canada (Agent Orange)o Consumer Protection Law: MacKinnon v. National Money Mart Company (paydayloans)o Government Action/Inaction: Sauer v. Canada (Agriculture) (mad cow disease)o Insurance/ Benefit Entitlement: Hislop v. Canada (Attorney General) (same-sex survivors CPP benefits)o Labour and Employment Law: Corless v. KPMG LLP (overtime pay)o Contracts and Negligent Misrepresentation: Waddell v. Apple Computer, Inc., (iPod battery life)o Post-Secondary education: Matoni v. C.B.S. Interactive Multimedia Inc (dental hygienist accreditation)o Securities: Securities Lawo So far, less common in Canada than U.S.o 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.o Obstacles remain – leave requirements, caps on damageso Canadian courts still wary of U.S. excesses

The Legislative History of Class Actions In Canadao Quebec 1977o Ontario 1992o British Columbia 1995o Canada (Federal Court) 1998o Saskatchewan 2001o Newfoundland and Labrador 2002o Manitoba 2003o Alberta 2004o New Brunswick 2007o Nova Scotia 2007o NOT PEI !!!!!o Compared to U.S. Canada came late to class actions

- Initially Canadian jurisdictions were wary of adopting because of the excesses in the American system, but we’ve done a really good job avoiding those.

Pre-CPA: The Representative Action

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BC Rule 20-3 (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.”

o Strict test and limited role- The CPA offers much more fulsome and complicated procedure rules… deals with everything: costs,

discovery, disclosure, appeals etc. o SCC decision in Naken: a stake through the heart of the representative action

- This was a call by the Courts for reform, trying to get governments to adopt class action legislation. o Passage of CPAs in BC and Ontario render representative action irrelevant?

- The representative rule is not dead (still in the rules) and it still has importance, especially for aboriginal law where you are dealing with collective rights so opting-out is not possible.

2001: Dutton: The Representative Action Revived“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”Western Canadian Shopping Centres Inc. v. Dutton , 2001 SCC 46, per McLachlin C.J.

o This was a case brought in Alberta before Alberta had class action legislationo Naken suggested that there was nothing that could be doneo But instead the court just adopting its own class actions procedures by pulling from other province’s class action

legislationo Basically this now meant that provinces all had to create their own class action legislation, and they all did

except PEI

Post-Dutton Class Actions Available Across Canadao National class actions possible, but unwieldy – courts continue to struggle with issue

- Multi-juridictional are tough, because each province controls their own courts so this creates a division of powers problem: can an Ontario certification really bind people in other provinces? If you tried to bring it in another province this might be res judicata but it might not (because might not be within jurisdiction of the Court!)

- This is a developing area, there is a Manitoba case going to the SCC right now on whether Manitoba has to respect Ontario certification

- In the past the SCC has said this is something for legislators to take care of but they have not done anything.

- MY THOUGHT: Maybe this is an area for the federal government under POGG: national dimension branch.

o CBA creates National Class Action database to encourage communication between class counsel and public in various jurisdictions

Vioxx: Dueling national class actionso 2005: 30+ class actions files after Vioxx pulled from marketo 2006: Ontario carriage motion for national class excludes SK lawyer Tony Merchanto Feb-April 2008: Merchant certifies SK class, expands to national class when law is changedo June 2008: Ontario court refuses to stay Ontario proceeding in face of SK national class actiono 2009: Crisis averted when SKCA overturns certificationo 2010: Merchant tries again

International Class Actions Possibleo In Currie v. Macdonald’s Restaurants of Canada Ontario Court of Appeal recognizes possibility that American

class actions can, with proper notice, bind Canadian class members

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- However in this case the Court held that proper notice had not been given so Canadian class action was allowed.

o Canadian class counsel often sign on to American class action settlements – e.g. Winners/HomeSense data breach class action

Commencing a Class Action:o How does a class action begin?o The traditional way: single client whose interest is shared by manyo A dog and pony showo Counsel’s fertile imaginationo Copycat class actiono Partnering with other counsel

Let’s Get it Started!!o Analyzing the Claim’s Potential as a Class Actiono Size matters – but bigger doesn’t mean bettero Consider the meritso Attractive facts trump technical advantageso Are there competing class actions here or in other provinces?o Timing IMPERATIVESo Parallel actionso Carriage motions

The Representative Plaintiff: Who is Class Counsel Looking For?o The Dream Candidate:o Smart but not arroganto Hardworking but not aggressiveo Media-savvy but not garrulouso One is better than two or moreo Where to find him or her?

The Representative Plaintiff: Role and Rewardso The retainer agreement

- When rep ptf signs, it binds the classo Instructions

- Rep ptf gives the instructions to settle and all instructionso Evidenceo Altruism and ethics

- Duty to act in good faith towards classo No conflictso Indemnificationo Payment

- There is some case law that says you can pay a bit for the rep ptf’s timeo Substitutions

- If they develop a conflict, can substitute new rep ptf. - If they fail in their duties, can substitute new rep ptf.

The Big Battle: Certificationo What is it?

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- If the case doesn’t get certified, you can’t continue!o Non-discretionary (“must certify”)

- if all requirements of s.4(1) are met:(a) the pleadings disclose a cause of action;

s.37 no costs are awarded for certification So tactical decision if you believe that the pleadings cause no action… can wait until

certification (but then you incur the expense of having to go to the certification, b/c you can’t get costs)

Other choice is to bring motion to strike before you get to certification. HOWEVER if court decides your motion was “improper” or “unnecessary”, then they can make you pay costs for the certification (37(2)(b)). So it’s risky both ways.

(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; need a common issue to make it worthy… unlike in the USA where the common issue

needs to be predominate. A lot of time spent litigating this in the USA so we don’t have it.

(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 whoi. 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

Key is to give something useful to the Court, to show it will be efficient, beginning of the case to the end of the case.

iii. does not have, on the common issues, an interest that is in conflict with the interests of other class members.

In USA rep ptf has to be “typical”… NOT Canada, just need no conflicts.

o Discretionary (“preferability”)- requirement s.4(1)(d) requires court to decide if a class proceeding would be the preferable method,

which involves discretion and court considers factors under s. 4(2)- refer to the policy behind class actions (access to justice, efficiency, deterrence for wrongdoing) to help

justify preferability- Could be that Admin law or ADR is better process… class action needs to be preferable - In USA numerosity is a requirement (class must be as a certain size) we don’t have this, but this is a

consideration in determining whether a class proceeding is the preferable proceeding.

Litigation Plano “workable method”o Think through entire action carefullyo Road map for court, counsel and parties

The Big Battle: Certification Strategieso Plaintiff strategy Full speed aheado Defence Strategy Slow and slowero The 90-day “Rule”o Keeping your eye on the prize – the risk of diversion

The Big Battle: Evidence on Certification46

o Cause of Action determined on facts as pleaded- No evidence needed

o For other required factors under s. 4(1), plaintiff must demonstrate “ some basis in fact”- Don’t need to persuade court you will win, likelihood of success irrelevant- But need to have a minimum amount of evidence showing you have a real claim- Hollick “rep ptf must file some evidence but not a preliminary mertis test”… just need to show grounded

in reality- Use evidence that there is some possible harm and affecting more than the rep ptf- Should use expert if it is technical, doesn’t have to be your definitive expert- Court will not get into a battle of the experts… the certification is not for weighing, so even if defence

brings expert saying your expert is crap it doesn’t matter, you’ve shown some evidence!- But if defendant files expert and ptf doesn’t, the ptf may fail at certification because they will nto meet

their evidentiary burden. o Not a hearing on the merits, but more than a mere assertion

- The class proceeding act is about procedure not about determining the case.

The Big Battle: The Class Definitiono Class should be easily ascertainableo Class cannot be defined solely by damages

- So can’t say the class is all the people ‘hurt’ by a product (b/c that will need to be proven, whether someone has been hurt by the product and is therefore tied to the result) but you could say everyone who purchased the product.

- Remember you aren’t deciding merits at this stage so you can’t group it together based on results of the litigation.

o Common issues need not prevail over individual oneso Boundaries of time and space may be one way to define common issueso Not all issues have to be common

The Big Battle: Preferable Procedureo Few large claims v. many small claimso Individual issues v. common issueso ADR and other means of settling issueso Will class action advance things sufficiently?

After the Big Battle: Opting Outo Following certification, absentee class members must be given notice of certification and optionso Class members may chose to opt-out of class action, to pursue claims on own

- If you don’t opt-out, you can’t bring your own action because res judicata bars youo In some provinces, extraprovincial class members may opt-in to class action

- i.e. in BC: if you are inside BC you are in unless you opt-out, but if you are outside BC you have to opt-in- In ON statute, you have to opt-out no matter where you are in Canada- More helpful to bring national class in province whose statute does not require opting in

The Guiding Hand: Court plays a critical role in class actionso CPA grants Court broad powers and discretiono Court has role in protecting absentee class memberso Court must approve:

- Communications with Class- Settlements- Counsel Fees

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The Trial – a Kafka-esque Possibility?o Most class actions settle, but trials are increasingly common.o Kerr v. Danier Leather (44 day trial)o Pearson v. Inco, (45 day trial)o Barbour v. UBC (5 day trial)o Trial can only resolve common issueso S. 27 of BC CPA allows Court to deal with individual issues by:

- Hearing before the same or another judge- Inquiry by a person appointed by the court- any other manner consented to by the parties

o In selecting a method to determine individual issues: the Court must “choose the least expensive and most expeditious method of determining the individual issues that is consistent with justice to members of the class or subclass and the parties”

o The Court may dispense with procedural steps it consider unnecessary or authorize any special steps or rules it considers appropriate

Settlement & Mediation

Settlements

- You will get a reputation as a problem solver if you always seek to settle, but your reputation won’t be as big or as famous if you fight over everything and always go to trial.

- Sometimes you need to go to trial so that people believe your threats when you say you will take something to trial… they will take you seriously and you will get a better settlement the next time.

- Can’t just call up and say let’s settle, you need to push back, some sort of toughness, before you can get a good settlement for you client, generally.

- Need to know how to litigate and how to use the rules, in order to show the other side that you know what you are doing, that you will go to trial and that your client is prepared to go to trial, and yet at the same time always looking for an opportunity to settle the matter in a fair way short of the trial.

What Hayley has learned about settling:

- Doesn’t believe in trying to treat the other side as if they are not entitled to anything. Need to be reasonable to settle… you CAN’T get everything through a settlement

- Remember settlement is different than the other side just giving up and giving your client everything… that’s not settlement

- Settlement is where there is accommodation for BOTH sides… if you can’t do this, you can’t settle. You have to recognize this, and educate your client on this.

- If your client doesn’t want to settle, then you have to go to trial. - Personalities involved in settlement: the lawyer on the other side is a person, you may have never met them

(only dealt with each other by email)… although the more senior you get you get to know more people. They are humans! So if you want to settle, YOU have to be a human too.

- You can be firm and stand up for your client’s interests, but if you make them feel like dirt everytime you talk to them then you won’t be able to settle.

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- Don’t join the group of lawyers who think that by shouting at someone over the phone will convince them of something.

- If you have a view that you are right on the law, and the other side takes a contrary view and it is important to your client’s interests, you can be very polite and kind by just saying “well, we should have the judge make that determination”.

- There is a lot of ugliness and unprofessional behaviour in the profession that doesn’t need to be there. - Even if you disagree on every single point and always have to go to chambers, if you are fair minded, polite and

honest in your pursuit of justice there shouldn’t be a FIGHT… and then if you want to talk about settlement, you have money in the bank, you have respect, because of your conduct of the file… and it will be easier to settle

- Talking and arguing on the phone isn’t useful. If you want to explain yoru point, you should do that in writing so that there is no misunderstanding.

- Always thinking: what does my client need and how do I achieve it?- More often than not both sides are looking to settle because litigation costs are just so incredibly HIGH… very

often it costs more than the file is worth to go to trial… so settlement is the only way to go. - The timing of approach to settlement is very very strategic. Rarely consider talking about it at the beginning of

the file (unless in unusual circumstances)…- Usually need to use civil procedure for a while first before you can get to settlement, mediation or arbitration. - Use the rules of court to get information and admissions!! - Show the other side that you know how to use the court and that your client is prepared to pay for legal

services. That is essential in most cases. - Client’s often expect you to use a mediator, but sometimes they can still settle without a mediator… this is

cheaper. No reason why you can’t have a rationale conversation with the other side… recognize there should be some concessions on both sides.

- If you are just butting heads so much and fighting with the other side, you won’t be able to take advantage of the right moment to settle.

- Uneven nature of the court process is also a reason to settle: some judges know about the subject matter and some don’t… can’t predict that. Never know what will happen at trial. All depends on the judge you get.

- When you have a settlement you have much more control than you do at trial. You get decide what the result is. The client gets to say what it is they really want.

- If you have the law on your side at trial, of course, you may be able to say that you have a good chance of winning… but there are always surprises at trial so you can never be sure.

- Some provinces have mandatory mediation (not in BC)… although in BC you can require someone to mediate (in the rules)… it isn’t the state requiring it, it’s the other side.

- If you fail to go to mediate when the other side requests, and they are successful in showing you acted in bad faith, you may have to pay the costs of the entire thing rather than just your half.

- Where the state requires it (i.e. in SK you have to mediate in every file and the mediator is a judge): judges may not know anything about mediation… but yet it’s very interesting, because a judge has so much authority, they know what judges think so when they make a suggestion i.e. about the law or criticising, people really listen. So it has a good effect on resolving a case prior to trial.

- In SK: you have to have the usual steps, pleadings, documents, discovery, motions etc. and then you have judicial mediation (after all the other stuff is done). You do not have a trial date until you’ve had the mediation.

- If the mediation fails, the judge who has been the mediator becomes your pre-trial judge… ask for the witness lists, how long the trial will be, agreements on docs etc. (right at the end of the mediation) and the trial is set for

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TWO WEEKS from now (or it could be longer… but it could be two weeks)…. Puts a LOT of pressure on you to settle.

- Debate about whether this is appropriate (to have judges mediating):

- Settlement Conference - Not a lot of rules around it- You have a judge (who will not be the TJ)- Ex: settlement conferences are not of much utility, because the very skills that makes judges good at being

judges makes them bad at negotiating a settlement… judges may jump to conclusions, or just try to bring everyone in the middle… these are old criticisms, there is some truth in it BUT the costs of litigation are such, and the risks are such, that you now need to try everything imaginable to resolve your client’s problems. A settlement conference may work. It also only takes a couple hours so you might as well try.

Mediation

- Has become increasingly important- Has brought people who used to be much more adversarial into settling- Clients know about it and like it- It’s one more step though… and it is expensive- If you are going to do it, you have to go in saying ‘we will win’ but ‘winning’ means something different in

mediation. Need a different focus: win= what are willing to settle this for and let’s see if we can get it. - Not a perfect process… mediation is a bit of a crap shoot… but you can control it in certain ways… you have to

agree on a mediator (find one that you respect!)… not one that will just let you win, one that is thoughtful, who cares about legal issues—cares about the facts and law, but resolve it in a manner that is equitable and balanced.

- Mediation can be as expensive, but is cheaper than trial generally- Worth it to pay if you have a really good mediator and can resolve a case that might take months and months of

trial. - Make your “brief” that sets out the facts, backup by admissions made in discovery, footed noted to documents

that back it, that sets out the law and relate the law to its facts. Need to be prepared, can’t come in with nothing. Need to have something prepared regarding your conception of the cas

- Not showing up with amended pleading and brand new expert reports, this is BAD FAITH, need to negotiate in good faith.

- Talk intelligently and sensitively, listening, trying to bridge the gap, be accommodating!- But don’t be a doormat - If you don’t mediate in good faith this can effect costs- If other parties requires you to mediate under the rules, you have to go and you have to mediate in good faith

(can’t just make it plainly obvious that you aren’t participating)

SKILLS needed for mediation

- attentive listening and summary skills- Sense of humor- Balance of focus on big goals and fine detail- Stunning memory of detail and ability to produce key docs

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- Patience and persistence- Very honest, but not necessarily full disclose- NOT ranting- Knowledge of the law and what is going on- Get rid of your instincts to dominate and prevail, need to be likeable and be fair minded, listening and to be

creative.

It is no long a question about whether you ought to be trying to settle, you HAVE to be doing it. It’s so common, you won’t have a client that can afford it. A trial could easily cost you anywhere from $250,000 to $600,000 to $1,000,000.

Make use of your discovery to promote settling!!!

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