Civil Procedure Final Outline

Initial Client Meeting

The Adversarial System of Justice

Access to Justice and the Economics of Litigation

Contingency Fees & Review of Lawyer’s Bill

Costs

Party and Party Costs

Calculation of Party and Party Costs

Special Costs

Calculation of Special Costs R. 14-1(3)

Costs Orders Against Lawyer Personally R. 14-1(33)

Specific Costs Rules – Offers to Settle, Fast Track, Small Claims

Professional Responsibility

Professional Discipline

Limitation Periods

Limitation Act Provisions

Limitation Period Reform Recommendations

Jurisdiction of Courts

Small Claims Jurisdiction

ADR in Small Claims

Appeals from Small Claims

Transferring a case from the BCSC to Provincial Court

Transferring a case from Provincial Court to the BCSC

Venue Considerations

Overview of the Rules

Process of Changing the Rules

Interpretation and Goals of the Rules

Penalties for Non-Compliance R. 22-7

Highlights of Recent Civil Justice Reform Process

Commencing Proceedings

Notice of Civil Claim

Petitions

Requisitions R. 17-1

Applications

Service

When Service is Deemed to be Effected

Response to Notice of Claim Rule 3-3 (Form 2)

Counterclaim and set off: Overview

Set-off

Counterclaim

Particulars R. 3-7(18) – (24)

Amending Pleadings

Striking Pleadings

Default Judgment

Multiple Claims and Multiple Parties

Joinder of Multiple Claims

Joinder of Parties

Chambers Proceedings

Jurisdiction of Registrars R. 23-6

Jurisdiction of Masters

Chambers Hearings R. 22-1

Affidavits

Affidavits and Hearsay

Exhibits

Discovery of Documents

Discovery of Documents

Implied Undertaking

Unsatisfactory Discovery of Documents

Discovery of documents from non-parties

Solicitor-client Privilege (Blank)

Litigation Privilege (Blank)

Copied Documents

Solicitor-Client Confidentiality PCH Ch 5

Examinations for Discovery

Who Can Be Examined

Procedure at the exam for discovery

Scope of questioning

Using the E/D transcript at trial

Pre-trial examination of a witness

Physical Examination and Inspection R. 7-6

Orders for the Inspection and Preservation of Property R. 7-6

Admissions

Depositions R. 7-8

Witness Lists R. 7-4

Interrogatories R. 7-3

Expert Reports R. 11-6

Dispositions w/o Trial & Settlement Mechanisms

Summary Judgment R. 9-6

Summary Trial Rule 9-7

Summary trial evidence

Settlement

Mediation

Enforcement of Settlements

Judicial Settlement Conferences R. 9-2

Offers to Settle R. 9-1

Fast Track Actions R. 15-1

Jury Trials R. 12-6

Jury Act

Case Management

Case Planning Conferences

Conducting the CPC R. 5-2

CPOs and Enforcement of CPOs

Early Appointment of a Trial Judge

Trial Management Conferences R. 12-2

Trial Management Conference Orders

Experts

Notice of Experts Reports

Key Changes in the New Rules Re: Experts

Extensions/Calculation of Time

Res Judicata

Initial Client Meeting

  • Items to discuss with the client:what the client wants to achieve, conflicts of interest, lawyer’s competence, fees and charges, including the degree of financial risk involved (*costs-shifting), confidentiality, client’s identification and capacity, process for future communications.

The Adversarial System of Justice

  • CBA Code of Professional Conduct Ch 9:The advocate’s duty to the client is to fearlessly raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case and to endeavour to obtain for his client the benefit of any and every remedy and defence which is authorized by law.
  • The adversarial system is characterized byorality, a single climactic trial,party control and a belief that the best and fairest way of resolving a dispute is by a contest between competing adversaries
  • Traditional role of the judge: (judge as umpire)
  • Passive/inactive:judge does not initiate or intervene except to ensure that rules are followed
  • No power to determine what the issues are - parties decide the issues
  • Does not independently investigate the facts
  • Does not examine or cross-examine parties or act of own motion to call witnesses or experts
  • Does not actively promote settlement
  • Reserves judgment until after all the evidence and arguments have been heard at an oral trial.
  • Lord Denning in Jones v. National Coal Board: the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large.
  • Traditional role of parties/counsel:
  • Parties play a central and active role in controlling the litigation through their lawyers:
  • Party control: subject to certain rules and professional responsibility, parties are able to control the proceedings, can agree to extend time limits, can force each other to adhere to the rules of court, decide which facts and defenses will be brought up, set the scope of the action, and decide which evidence to present, etc.
  • Party prosecution: parties have the primary responsibility to choose (without interference from the judge) the manner in which they go forward with the case, parties choose the pace
  • Party autonomy:parties have the right to pursue or dispose of their legal rights and remedies as they wish. Parties can decide whether and when to settle, on whatever terms they choose. TJ’s role is limited by how the parties decide to define and present thedispute.
  • Lawyers play a dominant role as zealous advocates and arehighly partisan
  • Advantages of the adversarial system:
  • There is always an actual outcome in each case – someone is right and someone is wrong
  • Each party receives equal process and procedures – cross examination, evidentiary rules, etc
  • Full(er) examination of the story (?)
  • Procedural justice
  • Arguably more transparent and impartial (?)
  • Disadvantages of the adversarial system:
  • The outcome may not always be the fair result
  • Slow and costly procedure
  • The judge may have to lend assistance to parties that can’t afford proper counsel
  • Inequitable – rich have a much better access to the law (more resources)
  • Matters are translated to legal issues - important non-legal matters may be missed in this process
  • Alternative: The Inquisitorial System
  • Founded on judicial involvement in the process – judge is involved in the determination of relevance, which issues to explore, etc.
  • Sees civil procedure as a branch of public law in which there is a state interest over and above the interests of the parties (compare to the adversarial system which sees civil trials as private)
  • Role of judge (Langbein):
  • Active/not passive role
  • Once litigation is initiated, the judge takes control of the proceedings and begins to build the dossier. More of the trial is written, there is less of an emphasis on orality of the proceeding being needed to find the truth
  • Judge takes the main responsibility for gathering evidence and determines the pace
  • Decides what witnesses to hear from and examines them (examiner in chief), and prepares summaries of witnesses’ testimony for the file
  • Selects and instructs experts on own motion
  • Encourages settlements (may make provisional views of issues known to parties)
  • Role of counsel:
  • Represents interests of client throughout process
  • Plays supportive role to assist court in its fact gathering and decision-making process but from a partisan perspective
  • Initiates process (sets out key facts, legal theory, requests remedy, but also proposes means of proof for factual issues, lists and provides docs in P’s possession, identifies witnesses)
  • Makes suggestions to judge re: fact gathering
  • Can question witnesses after judge has examined; can submit comments on testimony
  • Can recommend experts, comment on expert testimony, ask for second expert, and even produce own expert. However, there is suspicion regarding the latter as there is an assumption that there should be neutrality in expert testimony for trustworthiness.
  • Makes legal argument and advocates for client
  • Langbein cautions not to underestimate the role of counsel in inquisitorial systems
  • Episodic nature of the process: no single continuous oral trial as the culmination of the process, but rather a series of more business-like hearings.
  • Advantages of the Inquisitorial System over the Adversarial System (Langbein):
  • Episodic hearings are more like business meetings – less drama
  • Earlier resolutions and settlements
  • Non-partisan fact-gathering leads to more efficiency and avoids witness bias problems
  • There may be more room for the judge to consider the interests of someone who is not involved.
  • Pre-judgment problem: Idea that the judge may subconsciously form a theory and then give undue weight to things that are seen to confirm the judge’s theory. Langbein: the lawyers’ role in the process operates to counteract this tendency IF there is such a tendency.
  • Assumptions Supporting the Adversarial System:
  • Legitimacy/acceptability (Brooks)
  • The adversarial system is consistent with prevalent social and political ideology. It reflects classic liberalism by emphasizing self-interest and individual initiative, reflects an element of distrust of the state, more value is placed on participation and choice of the parties.
  • Appearance of impartiality because the judge stays above the fray
  • P. 17 of CP: why a judge may be able to make better decisions by being passive.
  • Better fact-finding: Idea that party prosecution will result in a more thorough investigation of the facts, because the judge will remain unbiased, and self-interested parties will be more diligent in presenting the evidence.
  • This assumes parties will seek out and present all favourable evidence for their case, are equally motivated to do so, will sustain this motivation throughout the proceedings, and have equal resources, capacity, and skill to do so.
  • Cathartic effect: idea that the adversarialism of the process results in more satisfaction; parties get to play out aggressiveness indirectly, tied to the sporting image of going to war.
  • The real client interest is getting a good result at a reasonable price.This conceptualization is also criticized by many as encouraging or entrenching an aggressive approach to litigation that is detrimental to the need to compromise and resolve conflict.

Access to Justice and the Economics of Litigation

  • The goal of the civil justice system and the civil rules is to secure the just, speedy, and inexpensive determination of every proceeding on its merits.R. 1-3
  • There's no point in having a whole system to get to where almost no one can afford to go. – Abella
  • Many Canadians cannot exercise their rights effectively because using the civil justice system takes too long, is too expensive, or is too difficult to understand. - CBA Systems of Civil Justice Task Force
  • We have moved from being a society governed by the rule of law to being a society governed by the law of rules….we have come to believe that process is justice. Yet to members of the public who find themselves mired for years in the civil justice system’s process, process may be the obstacle to justice. – Abella
  • Our common law adversarial system of dispute resolution was not designed with cost-effectiveness in mind; it was designed to resolve conflict through a competition of adversaries. In this context the search for justice is conceived as a contest, and advocacy is generally understood to mean that the lawyer’s task is to take every possible step under the rules that might advance the client’s case. - CJRWG report
  • This is also reflected in the CBA Code of Professional Conduct Ch.9, which basically states that lawyers owe a duty to their clients to leave no stone unturned.
  • As cost, complexity, and delay increase…affordability, public confidence in the justice system, and access to justice decrease.
  • The causes:
  • System is designed not with costs in mind, rather focused on a competition between adversaries
  • Lawyer’s task is to take every step possible to advance the client’s claim (overly extensive advocacy that is supported via the billable hour method)
  • Legal Culture:resistance to change within the profession, fear and uncertainty of changing a long-established remuneration model, unwillingness to negotiate until after full discovery
  • The proliferation of laws/regulations
  • Cash-strapped govs
  • The court system has responded by a) re-writing the BCSC rules, and b) diverting cases to ADR
  • Must change focus from trial to resolution:The traditional approach to litigation has not emphasized problem-solving...a change in orientation is required. This reorientation must focus on early problem-solving and dispute resolution, with the prospect of trial seen not as a matter of immediate focus but as an option of last resort. - CBA Systems of Civil Justice Task Force Report
  • People attend lawyers with problems they want resolved, not with problems they want litigated. –McMurtry J
  • Evidence of the problem: increased proportion of self-represented litigants, dissatisfied users of the civil justice system, vanishing trials, decreasing number of civil filings
  • 2011 national average hourly cost for 10-year call = $326
  • 3 day trial estimated to cost about $60,000 (McL’s keynote address)
  • In 1996, there were 812 civil and family trials in Vancouver, each taking an average of 13 hours. In 2009, there were 386 trials each taking an average of 24 hours.
  • Lawyers turning away clients with claims worth $50,000 to $100,000; many litigants reduce their claims by thousands of dollars to sue in Small Claims (CJRWG Green Paper)
  • 60,000 actions commenced -> 1200 trials

Contingency Fees & Review of Lawyer’s Bill

  • Retainer agreement: describes the services that lawyer will provide and creates a principal/agent relationship. Lawyer must act within the scope of the client’s instructions (subject to professional responsibility obligations)Provisions of the Legal Profession Act, the Rules of the Law Society, and the Rules of Professional Conduct shape and regulate the contractual relationship
  • Remuneration arrangements include hourly billing, contingency fees, lump sum or bulk rates, salary, or publicly funded lawyers
  • Contingency fees:used primarily in relation to personal injury litigation where individual P is unlikely to be able to afford to bring an action. Increase access to justice because (theoretically)incentivize timely pursuit of the suit/maximization of the amount awarded (client’s interests and lawyer’s interests converge)
  • At one point, contingency fees were illegal
  • Legal Profession Act: Lawyer may enter into a written K respecting fees and disbursements to be paid for services provided, including a contingent fee agreement (s. 65)
  • s. 64 defines contingent fee agreement as an agreement where payment to the lawyer for services provided depends, at least in part, on the happening of an event
  • Contingency fees not allowed in child custody - s. 67(3) or matrimonial disputes (unless court approves) – s.67 (4) and (5)
  • s. 66 enables Benchers of the Law Society to make rules re: contingency fees (but not for class proceedings) that limit the amount (%) that can be charged andregulate the content of agreements
  • Court can approve a contingency fee higher than the maximum specified in Law Society Rules if the lawyer and client agree AND court is satisfied it is reasonable
  • Law Society Rules (Part 8) Contingency Fees
  • Contingency agreements must be fair and reasonable. Max for personal injury or wrongful death arising out of a motor vehicle (33.3%) and other personal injury/wrongful death (40%)
  • These provisions do not apply to class proceedings where contingency fee rates are regulated directly by the courts
  • Agreement must not statethat the client cannot abandon or discontinue or settle without lawyer’s consent or that client cannot change lawyers before the conclusion of the claim
  • Professional Conduct Handbook (Ch. 9)
  • Lawyer must not charge excessive fees
  • Lawyer must fully disclose fees to client
  • Lawyer must not be paid by anyone other than client, unless client knows about it
  • Lawyer who has a financial interest in anyone to whom disbursements are being paid must disclose this to client.
  • Lawyer must not pay another lawyer for client referrals (unless they disclose this to the client and obtain the client’s written consent at commencement of retainer)
  • If acting for two or more clients must apportion fees and disbursements equitably among them (subject to contrary agreement)
  • Review of Lawyer’s Fees: S.69-76 of the Legal Profession Actprovide for a review of the lawyer’s fees by the Registrar. The Registrar is directed to allow all fee charges and disbursements that were “reasonably necessary and proper to conduct the proceeding or business to which they relate” or authorized or approved by the client. Registrar has discretion to allow additional fees if they relate to steps intended to advance the interests of the client (i.e. even if they were unnecessary)
  • In reviewing a bill for legal fees, Registrar must take into account per s. 71(4) the complexity, difficulty or novelty of issues involved, the skill, specializedknowledge and responsibility required, the lawyer's character and standing in the profession, the amount involved, the time reasonably spent, whether the hourlyrate was reasonable, the importance of the matter to the client, and the result obtained.
  • The Registrar then issues a certificate which sets out the amount client must pay. The certificate can be filed in court and (after expiry of the appeal period) is deemed to be a judgment of the court and can be enforced as such – thus lawyers can use this same process to have their legal bills certified and enforced

Costs

  • Costsawards are amounts that the court orders one party to pay another party, to partially reimburse that party for legal fees and disbursements the party incurred in conducting court proceedings
  • Disbursements are out of pocket expenses incurred in the litigation other than legal fees, such as photocopying, postage, court fees, experts’ fees, jury fees, etc.
  • Rationale: by advancing a losing claim or by defending against a winning claim the losing party has caused the other party to incur expenses that the losing party should have to pay for [a kind of “special damages" issue], deters marginal litigation, frivolous claims and sham defenses, encourages settlements
  • BCSC has power to award costs in all proceedings unless a statute provides otherwise. This power was originally part of court’s inherent jurisdiction. Courts have a broader jurisdiction re: cost orders than what is in the rules.
  • Costs are in the discretion of the court, but it does not follow that the judge is to do whatever pleases him at the moment. Rules and decisions offer guidance that should ensure that different judges in similar cases make similar decisions. (Royal Trust Corporation of Canada v.