Table of Contents
GENERAL PRINCIPLES OF CIVIL PROCEDURE
Importance of Proper Procedure
The Object of the Rules - the Rule of Proportionality – Rule 1-3
Object R 1-3(1)
Proportionality R 1-3(2)
Application of the Rule
ETHICS IN CIVIL LITIGATION
The Code of Professional Conduct
Critical Dialogue on the Ethics of Lawyering in Walker
Atkinson – “How the Butler was Made to do it”
Kennedy – “The Responsibility of Lawyers for the Justice of their Causes”
Hutchinson – “Legal Ethics for a Fragmented Society: Between Professionalism and Personal”
Abella – “Professionalism Revisited”
Backhouse – “Gender and Race in the Construction of Legal Professionalism: Historical perspectives”
Farrow – “Sustainable Professionalism”
PLEADINGS
The Legal Evolution of Pleadings
What is a Pleading?
Rule 1-1: Definition of “Pleading”
Purpose of Pleadings
Importance of Filing Correct and Full Pleadings
Rodaro v Royal Bank of Canada (2002 ONCA) - Parties May Only Rely on the Contents of the Pleadings
JJM Construction v Sandspit Habour Society (2000 BC) – Parties may not rely on defences not pleaded
Whiten v Pilot(2002 SCC) Parties must plead specifically the remedies sought
Jones v Donaghey (2011 BCCA) – in failing to specifically plead a material fact, one cannot import an issue into the pleading on the basis that it is relevant to an issue plead (MENTAL HEALTH)
Pleading Conclusions of Law – Rule 3-7(9)
Material Facts Requirement – Rule 3-1(2)
Pleadings Must Not Contain Evidence – Rule 3-7(1)
Parties May Demand Particulars – Rules 3-7(18) to (24)
Definition of Particulars
When are Particulars Normally Used?
Amending Pleadings
Legal Arguments to Allow and Disallow Amendments
Amendments to add or substitute parties
Amendment to Add a Cause of Action Where Limitation Period Has Expired
STRIKE PLEADINGS
Court may strike pleadings for serious defect – Rule 9-5(1)(a)
Policy Rationale: It saves time and money by striking cases early on that have no chance of success
Plain and Obvious Test for determining a serious defect (Hunt in KnightBCCA 2009 at para 20)
Knight v Imperial Tobacco Canada Ltd (2009 BCCA) – court will strike applications, or portions of applications that, plain and obvious, cannot succeed by serious defect.
R v Imperial Tobacco Canada Ltd (2011 SCC) – articulation of the purpose of strike pleadings, importance of allowing novel issues, disallowance of evidence in strike application, proper remedy is amendment.
Court may strike pleadings that are an abuse of process – R 9-5(1)(b), (c), (d)
SUMMARY JUDGEMENTS
What is a summary judgement?
When Can Summary Judgements Occur? – Rule 9-6
LD Guardian ad litem v Provincial Health Services Authority (BCSC 2011) – where a party neglects to properly plead a bona fide triable issue, the court may order a period for pleading amendment pursuant to 9-6(5)(d)
Substantial Change between Old Rules to New Rules
SUMMARY TRIALS
What is a Summary Trial?
Policy Rationale
When Do Summary Trials Occur? – Rule 9-7
Application of 9-7 – in Inspiration Management (BCCA 1989)
Inspiration Management v Mc Dermid (1989 BCCA) - Sets out the rationale for summary trial and its proper application
Why might one want to go to trial over having a summary trial?
HOW TO BRING AND RESPOND TO APPLICATIONS (“MOTIONS”)
The Mechanics of Making Applications Rule 8-1
Notice of Applications – Rule 8-1 (4)
Response to Notice of Application – Rule 8-1(9), (10)
HOW A CHAMBER’S APPLICATION WORKS
Basic Mechanics
Presenting an Application in Chamber’s Court
Responding to opposing counsel in an Application in Chambers
DOCUMENT DISCOVERY & DOCUMENT PRODUCTION
Importance and Purpose of Document Disclosure
Policy Rationale for Document Discovery Rules
Materiality Test Application & the Mechanics of Document Discovery Requirements – Rule 7-1
Modern Relevance of the Old Guano Test (XY LCC v Canadian Topsires, BCSC 2013)
Privest Properties Ltd v WR Grace & Co (1992 BCCA) – The discovery rule cannot “authorize a search”. Duty of lawyers to carefully investigate and ensure disclosure of listed documents is complied with.
Przybysz v Crowe (2011 BCSC) – Discovery must not constitute a “fishing expedition”; proportionality is the over-arching guide through the new two-tiered scheme for discovery under R7-1; Case planning transcripts cannot inform relief sought on application
XY, LCC v Canadian Topsires (2013 BCSC) – Lower standard of “reasonable specificity” under sub (11) and further, Guano remains relevant where the court chooses to use its discretion to do so (generally reserved for bad behaviour)
Pro-Sys Consultants Ltd v Infineon Technologies (2011 BCSC) – may not “dump” large amounts of disorganized data/info on opposing counsel as it is contrary to the object of a just and speedy adjudication of the issues
ORAL EXAMINATION FOR DISCOVERY
What is Examination for Discovery?
What is the Policy Rationale for Examination for Discovery?
What are the General Requirements Pertaining to Examination for Discovery? – Rule 7-2
Extensions to 7 hour limitation under sub (2) – Rule 7-2(3)
Examination of Party That is Not an Individual – Rule 7-2(5)
Minors, Mentally Incompetent, Bankrupt - Rules 7-2(8), (9), (10)
Examinees Must Self-Inform – Rule 7-2(22), (23), (24)
Objections – Rule 7-2(25)
TYPES OF OBJECTIONS (Nwachukwu)
Dann v Dhaliwal (2012 BCSC) – Under R 7-2(5) separate Ps in same claim not able to examine separate reps, but may examine same rep twice, does not have to be concurrent. D organization entitled to choose their rep.
Mainstream Canada v Staniford (2011 BCSC) – Scope of 7-2(3): examinee’s answers must be INTENTIONALLY evasive to qualify as a breach under R 7-2(3); application of “reasonably practicable” under sub (d)
Nwachuukwu v Ferreira (2011 BCSC) – scope of objections restricts unnecessary, deliberate frustration of process; certification does not estoppe D from further discovery; scope of examination (sub 18) very broad; types of objections
Strategic Examinations Tactics
Key Examination Strategies and Strategic Use of Documents on Oral Discovery
Retracting Statements
Interacting with Witnesses
Conducting Oneself as Counsel in Oral Examination
EXAMINATION BY DISCOVERY OF INTERROGATORIES
What is an Interrogatory?
The Old Rules v New Rules –Key Difference
Guiding Principles of the Use of Interrogatories
When and How Do Interrogatories Apply? – Rule 7-3
Loo v Alderwoods (BCSC 2010) – purpose of interrogatories is to obtain NECESSARY facts, and questions must not be ambiguous, redundant, remote, time consuming or complex so as to adhere to the objects of the rules.
Credential Securities Inc v QTrade (BCSC 2012) – questions must be reasonably limited in specificity and number
PRE-TRIAL EXAMINATION OF A WITNESS
What is a Pre-trial Examination of a Witness? – Rule 7-5
What are the Potential Problems with Pre-Trial Examinations?
When Should You Use Pre-Trial Examinations?
ADMISSIONS
General Points on Admissions
Purpose and Themes of Admissions
How do Admissions Work? – Rule 7-7
DEPOSITIONS
What is a Deposition and How is it Different from Discovery?
The Mechanics of a Deposition
What are the Grounds for a Court Ordering a Deposition? – Rule 7-8 (3)
Videoconferencing
Seder v ICBC (BCSC 2011) problems which interfere with the effectiveness and usefulness of the evidence at trial should only be ordered in exceptional circumstances where the evidence would be lost if not recorded prior to trial
Gill v A & P Fruit Growers (BCSC 2011)- Video Depositions are preferable to video conferencing where conferencing may lead to an adjournment and opposing counsel does not intend to cross-examine witnesses on the content of the depositions
LIMITATIONS LAW
POLICY RATIONALE: The Big Picture of Limitations:
The Discretion of the Courts to Mitigate Injustice by Extending Limitation Periods:
New Limitations Law Compared to Old Law
Transition Period Chart (Where is the Old Law Still Relevant?
RES JUDICATA
What is RJ & How Does Res Judicata Work?
Exceptions to Estoppel by Res Judicata
Res Judicata Applies to Ultra-Juridical Decisions
Types of Res Judicata
Policy Rationale
McIlkenney v Chief Constables of the West Midlands (ENGLAND) – issue estoppel where issue has been previously decided, to prevent person from contesting it in subsequent proceeding even if parties are different in the 2 actions
Bomac Construction (1986) – abuse of process for party to reject liability in a subsequent action where they are found liable for same circumstances in a prior action – would cause relitigation of a decided issue
Reliable Mortgages v Chan #1 (2011BCSC); #2 (2013 BCSC); #3 (2014 BCCA) – can sue the same party twice on different issues arising from the same circumstance
Petrelli v Lindell Beach Holiday Resort (2011 BCCA) – party may raise a new defence for a subsequent action that has been tried where the opposing party is not privy to the first
Toronto v CUPE (in Petrelli) – court has inherent jurisdiction to prevent an abuse of process
Rasanen v Rosemount Instument - example of issue estoppel, privy between Ministry of Labour and EE
MacDougall v Lake Country (2012 BCCA) – example of Action estoppel; successors are privy
ACCESS TO JUSTICE
Professor McHale Guest Lecture
The Problem with Access to Justice
Process Preoccupation – Abella J (in Walker)
Consequences
What is the Solution? How Do We Fix It?
How Does this Affect Us as Lawyers and Law Students? What Can we do individually?
ALTERNATIVE DISPUTE RESOLUTION: OFFERS TO SETTLE, SETTLEMENT CONFERENCES, MEDIATION/ARBITRATION, CASE PLANNING CONFERENCES
Benefits of Mediation & Arbitration ADR Generally/Policy Rationale
MEDIATION
Why Choose Medation? Why Not?
Who mediates? And How Should you Prepare for Mediation?
What is the Court’s Involvement in Mediation?
Mechanics/Process of Mediation – Notice of Mediation BC Regulation 4/2001
The Problem with Multiple Parties and Settlement (BC Ferries)
Offer to Settle - RULE 9-1
Settlement Conference – Rule 9-2
Case Planning Conferences – Rule 5-2, 5-3
CONVERTING PETITIONS TO TRIAL
What is a petition?
When are Petitions Used?
Conversion of a Petition to Trial or Action – Rule 16-1 & The Test for Conversion
CLASS ACTIONS
What is a Class Action?
Common Misconceptions About Class Actions
Types of Cases Frequently Litigated as Class Actions
The Best Kind of Situations for a Class Action:
Legal Framework of Class Action Suits
Legislation: Class Proceedings Act
Under the Common Law/Rules of Court
Stages of a Class Action
Certification: the Battle and the War/Requirements for Certification
Evidence at Certification
Vivendi Canada Inc v Dell’Aniello (2014 SCC) – “Flexible approach” to commonality
Post-certification Processes
Opt-in/Opt-out of Class Action
Trial of a Class Action Claim
Strategies for certification
Strategies for Defending Class Actions
Settlement of a Class Action
oGeneral Motors v Abrams (ONSC 2011) – example of use of certification to bind parties
oSunnyside v Lorenz (ONSC 2009) – example where court will not allow certification to bind parties
Nearly all members of class agree to distribute surplus in pension fund; Sunnybrook applies to certify the proceeding but the court rejects certification application citing deficiencies
Costs and Fees
Fee Arrangements:
Rules around fees:
Costs Controversy & the NO COST REMGIME in BC
Consumer Association v Coca Cola (BCSC 2006) – Costs awarded pre-cert
Kerr v Danier (SCC 2007) – Public Interest Claim
Ethical Considerations in Civil Actions
Generally
Money, Money, Money …or is it really about Justice?
Epstein Court may bar settlement between Defendant and Class Counsel .
Class Members, Absentee Class Members & The Role of the Court
Advertising the Class Action to Solicit Members
Can you pay/prefer the representative client more than other clients in the class?
Indemnification of representative plaintiffs
Can you sell shares in a litigation?
Negotiating counsel fees
Conditional settlement barring future CAs
EXPERTS - RETAINING AND PRESENTING EXPERTS AT TRIAL
The Perfect Expert
When is an Expert Required?
The Law Governing Expert Evidence and the Role of Experts – Rule 11 & CL
AT COMMON LAW: Application to Qualify an Expert; “The Necessity Test” & Statutory Standards
RULE 11-2(1), (2): Duty to the Court to Assist and Not to Advocate
RULE 11-3: Appointment of Joint Experts
RULE 11-5: The Power of the Court to Appoint its Own Expert
MacEachern v Rennie (2009 BCSC) – The Necessity Test in Mohan – testimony must be necessary inform court of information likely outside their understanding. Statutory Standards are not determinative and expert testimony may be considered to determine the standard of care in a general statute
Warkentin v Riggs (2010 BCSC) – expert witnesses must uphold duty under Rule 11-2 to assist the court and not advocate
Bendetti v Breker (2011 BCSC) – court cannot appoint joint expert on the unilateral application of one party, and cannot appoint prior to a CPC.
Hiebert v Hiebert (2006 BCSC) – court’s power to appoint an expert of their own initiative must not be used where is has the effect of imposing a search warrant on a party to litigation
Ethical Considerations
Selecting and Retaining Expert Witnesses
Potential sources for finding the right expert
The Do’s and Don’t’s of Selecting an Expert Witness
Preparation of the Expert’s Opinion
Do’s and Don’t’s of Expert Opinion Preparation
Preparing an Expert for Trial
Cross-Examination of an Opposing Party’s Witness
Strategy for Preparing to Cross-Examine Opposing Party’s Expert Witness
Preparation Requirements for Examining Counsel in Cross-Examining the Expert
DRAFTING – APPLICATION FOR DOCUMENTS/STRIKE DEFENCE
Guest Speaker Kieran Bridge
Chung v Siew: examples of Applications for Documents and Strike Defence
GENERAL PRINCIPLES OF CIVIL PROCEDURE
Importance of Proper Procedure
The importance of proper procedure in civil litigation is critical; Civil litigation can be won or lost on procedure alone.
The Object of the Rules - the Rule of Proportionality – Rule 1-3
Object R 1-3(1)
“The object … is to secure the just, speedy and inexpensive determination of every proceeding on its merits”
Proportionality R 1-3(2)
“Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far is practicable, conducting the proceeding in ways that are proportionate to
(a)The amount involved in the proceeding
(b)The importance of the issues in dispute, and
(c)The complexity of the proceeding
Application of the Rule
Both sides argue proportionality on a great number of points and there is great imprecision in what it means and how to apply it; thus, there is a lot of room to argue this point
ETHICS IN CIVIL LITIGATION
*see also Ethics and Experts/Ethics in Civil Litigation
The Code of Professional Conduct
Generally:
- Prepared by the CBA; each province models their own off of the national standard
- Ethical codes are not definitive, rather they act as ethical guidelines
- Regulates the ramifications of running afoul the standards of legal ethics.
- very unsympathetic law society, and Career destroyer.
- It isn’t that difficult to get reported to the law society. Being aware of the rules and standards is not only defensive but also because we should move away from the inherent adversarialsim of the profession
Provisions:
2.1 -Cannons of Legal Ethics
“for historical value”....but also as a “statement of general principles”:
“promote the interest of the state, serve the cause of justice, maintain the authority and dignity of the courts, be faithful to clients, be candid and courteous in relations with other lawyers and demonstrate personal integrity”
- 2.1-1: “duty to the state”
- not to counsel, aid or abet anyone contrary to the law
- 2.1-2: “candour and fairness” in court
- being candid with the court is different than withholding information without lying.
- 2.1-3: Duty “to the client”
- to fully inform oneself in giving legal advice, not to have conflict of interest, represent clients fairly, and honourable.
- 2.1-4: Duty to other lawyers
- courtesy and good faith; Having a good relationship with opposing counsel is not harmful to your client’s interests; “avoid all sharp practice”
- Certainly does not promote adversarialsim. Your opposing counsel will be much more willing to assist you if you assist them on matters that would not otherwise harm your client
- 2.1-5 Duty to Oneself
- (c) “make legal services available to the public in an efficient and convenient manner that will command respect and confidence”
- Being a decent human being is more important that being the most successful lawyer in the business
2.2 - The Duty of Integrity
- 2.2-1: A lawyer has a duty to act with integrity and honourably in all areas of practice towards all persons
- Commentary (3) “dishonourable or questionable” practices in personal or professional life can cause you to be disbarred....eg.drunk driving or other criminal activity.
- 2.2-2: A lawyer has a duty to uphold the standards of the legal profession in the interest of advancing the goals, organizations and institutions
3.1 -Relationship to Clients
- 3.1“competency” – you have an ethical obligation to keep abreast of the knowledge and skills required to do your job
- You can be sued for negligence. If it is gross negligence you can be disbarred for lack of competence
3.2 - “Quality of service” – duty to provide courteous, thorough and prompt service to clients
- 3.2-4: Encouraging Compromise/Settlement:
- Lawyer MUST advice client to compromise or settle dispute and MUST discourage client from proceeding with useless legal proceedings
- ADR, mediation. Always try to settle out of court. Not always in the interest of the lawyer to do this, less money, but with the court being over-burdened, and the cost of legal services so high, it is an obvious duty for the benefit of the entire judicial system and greater society.
- 3.2-5: Threatening Criminal or regulatory proceedings
- “a lawyer must not in an attempt to gain a benefit for a client, threaten or advise a client to threaten:” ...proceed with a criminal charge or to make a complaint to a regulatory body.
- If you think there is a crime, report it, but do not try to extort money from them
- 3.2-6: Inducement for withdrawal of criminal or regulatory proceedings
- Lawyer must not take valuable consideration in exchange for influencing the crown
- 3.2-7 Dishonesty, fraud by client
- Lawyer must not engage in or assist crime, fraud, dishonesty
3.3 - Confidentiality
- 3.3-1 Lawyer must keep all information wrt affairs of a client strictly confidential
- 3.3-3 Public Safety Exception
- EXCEPTION: may disclose information if there is imminent risk of death or serious bodily harm and disclosure is necessary to prevent it.
Critical Dialogue on the Ethics of Lawyering in Walker
The dominant model of lawyering has historically been understood as the exclusive professional interests of the lawyer’s client: Paradigms of “the zealous advocate”, “amoral technicians”, “hired guns” and “neutral partisans” abound. However, more recently, this standard has shifted, to embrace alternative models of lawyering, called “moral lawyering”, “sustainable professionalism” and “critical morality”.
Atkinson – “How the Butler was Made to do it”
A parable of a rich household, in which the reactive choice of the butler is critically analyzed against the choice of the head housemaid Kenton to the legally proper firing of two Jewish Housemaids for the fact they are Jews. The Butler is neutral to the goings-on and carries out his order to fire the maids, while Miss Kenton displays outrage at the decision and quits