Judicial Institutions and Civil Procedure

Judicial Institutions and Civil Procedure

Rosalie Jukier

Fall 2015

Table of Contents

Introduction – 08/09/15

Video: South African Constitutional Court (Justice Albie Sachs)

Purposes and Reform of Civil Procedure I – 10/09/2015

Important basic Questions

Inherent Jurisdiction

J.A. Jolowicz, “On the Nature and Purpose of Civil Procedural Law” in J.A. Jolowicz, On Civil Procedure (Cambridge: Cambridge University Press, 2000), at 59-80

J. Lachapelle et al, “Le monde judiciaire malade de sa justice” (Le Devoir, 27 mars 2008) and “Des solutions pour la justice civile” (Le Devoir, 28 mars 2008)

R. McMurtry, “We Are Not All Equal Before the Law” (Globe & Mail, 10 November 2005)

R. Jukier, “The Influence of Legal Traditions on Civil Procedure: Lessons from Quebec’s New Code of Civil Procedure”, (2014) 93 Canadian Bar Review 1 (excerpt)

Explanatory Notes and Preliminary Provision,Bill 28 (2014, c. 1): An Act to establish the new Code of Civil Procedure

Expenses of Litigation and Access to Justice – 17/09/2015

Cost

What can we (society) do?

Corbeil c. Gatineau (Ville de), 2009 – Proportionality Integrated

British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R. 873, 2007 SCC 21

Lord Woolf, Access to Justice – Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales

Hryniak v Mauldin, [2014] SCC 7

Trial Lawyers Association of BC and Canadian Bar Association v. BC (Attorney General) 2014

Alternatives to Civil Justice – 18/09/2015

Fleeing the civil Justice System

ADR Puzzle

Forms of ADR

Union Carbide Canada Inc. v. Bombardier Inc., [2014] SCC 35

Louise Otis & Eric H. Reiter, “Mediation by Judges: A New Phenomenon in the Transformation of Justice”, (2006) 6(3) Pepperdine Dispute Resolution L.J. 351-403

Leonard L. Riskin et al, “What Process is Appropriate: the Great Debate over Settlement and ADR”, Chapter I.C of Dispute Resolution and Lawyers, Fifth Edition (St. Paul, MN: West Publishing, 2014), at 14-25.

STAC v. Microsoft

Publicity of Judicial Proceedings – 22/09/2015

Fundamental Principles of Judicial Institutions

Open Court Principle (Publicity)

Exceptions to Open Court

Dagenais v. Canadian Broadcasting Corp. 1994

Canadian Broadcasting Corp. v. Canada (AG), 2011 SCC 2

J.L. c. A.N., 2007 QCCS 3226

Sierra Club of Canada v. Canada (Minister of Finance)

Holly Kathleen Hall, “Super-Injunction, What’s Your Function?”

The Court System and Subject Mater Jurisdiction – 24/09/2015

Constitutional Dimensions

Court System

Provincial Courts

Provincial Superior Courts

Ontario v. Criminal Lawyers Association, [2013] SCC 43

Federal Court of Canada

Quebec North Shore Paper v. C.P. Ltd., [1977] 2 SCR 1054 (headnote)

Canada’s Court System

R. v. Zolotow (2008), 89 OR (39) 321

Supreme Court

Factors affecting jurisdiction

Small Claims Court

Appellate Courts and their Jurisdiction – 29/09/2015

Appellate Courts and the Standard of Review

Guest Lecturer: The Honourable Justice Allan Hilton, Quebec Court of Appeal

Housen v. Rural Municipality of Shellbrook (Nikolaisen), [2002] 2 SCR 235

Morissette, Aspects historiques et analytiques de l’appel en matiere civile

Sattva Capital Corp. v. Creston Moly Corp., [2014] SCC

Judicial Appointment and Independence – 01/10/2015

Judicial Independence

Reference: re Remuneration of Judges of the Provincial Court (P.E.I.) Excerpt (1997)

Bastarache Commission, Executive Summary, Excerpt

Lanzinger, A Personal Reflection on Judicial Elections

Posner, How Judges Think – Altering the Environment: Tenure and Salary Issues

Reference: re Supreme Court Act Excerpt, ss.5 and 6, [2014] SCC 21 9

Judicial Impartiality – 06/10/2015

Judicial Impartiality

Wightman c. Widdrinton, [2007] QCCA 1687

Yukon Francophone School Board v. Yukon (AG), [2015] SCC 25

R. v. R.D.S., [1997] 3 S.C.R. 484

Cojocaru v. British Columbia Women’s Hospital and Health Centre, [2013] 2 SCR 357

Sherr, Shrinking Legal Aid, Unrepresented Litigants and Judicial Independence

Sample Problem based on Caperton

Judicial Ethics and Accountability – 08/10/2015

Class Notes

Hamilton, C. “Reasonable Doubt: Why we should care about Stephen Harper criticizing Beverley McLachlin”, May 2014

Various mechanisms of Oversight

Blatchford, C. “The Remarkable Mr Wills” 2007 (Optional)

CJC, Report on Justice Cosgrove, 2009

Things Judges Do

Pritchard, D. “Lori Douglas to quit rather than face Inquiry

Therrien (Re), [2001] 2 SCR 3, 2001 SCC 35

Overview of Pre-Trial Procedure in Quebec – 13/10/2015

The Pre-Trial Process

Arguin c. Nault [2007] QCCS 1767

Examples of Procedures

Overview of Pre-Trial Procedure in Ontario – 15/10/2015

Overview of Pre-trial Procedure in Ontario

Ordinary Procedure

Simplified Procedure

Case Management Track

Pleadings and Service – 20/10/2015

Pleadings and Service

TouchIt Inc. v. View-U Ltd – Case Story

Ashcroft v Iqbal, US Supreme Court

Beals v. Saldanha, [2003] SCC 72

Service/Notification

E.N. c. J.M. 2011 QSSC 3120

9026-8863 Quebec Inc. c. Best Buy Canada Ltd. 2006 QCCS 6528

9026-8863 Quebec Inc. c. Best Buy Canada Ltd. 2007 QCCA 936

Dodson, “Comparative Convergences in Pleadings Standards”

Jurisdiction, Choice of Forum, Enforcement of Foreign Judgments – 20/10/2015

Where to institute proceedings

International Jurisdiction

Van Breda v. Club Resorts, (2012) SCC

Beals v. Saldanha, [2003] SCC 72

Carnival Cruise Lines, Inc. v. Shute (US SC)

GreCon Dimter Inc. v. J. R. Normand Inc., 2005 SCC 46

Z.I. Pompey Industrie v. ECU Line NV, 2003 SCC 27 (esp paras 19-21, 39-40)

Standing – 27/10/2015

Who can sue? (Standing to sue)

Borowski v. Canada (Attorney General), [1989] 1 SCR 342

Alliance for Marriage and Family v. A.A., [2007] SCC 40

Canada (Attorney General) v. Downtown Eastside Sex Workers, [2012] 2SCR 524

CBA v. BC (BCSC) excerpt, [2006] BCSC 1342, CBA v. BC (BCCA) excerpt, [2008] BCCA 92

Abuse of Access to Court – 29/10/2015

Abuse of Process

Early Intervention

What is a SLAPP?

ONTARIO Bill 52

Acadia Subaru c. Michaud, 2011 QCCA 1037

Anti-SLAPP legislation reintroduced in Ontario

National Bank Financial v. Barthe Estate

Productions Pixcom Inc. c. Fabrikant, [2005] QCCA 703

Rapport sur les poursuites strategiques Excerpt

Parties to an Action – 03/11/2015

Permutations of Claims (all the possibilities)

Saint-Martin c. Fédération des enseignants des écoles juives [2002] J.Q. 1054

Beardon v. Lee, [2005] O.T.C. 361

Kingsway General Insurance Co. c. Duvernay Plomberie 2009 QCCA 926

School of Dance (Ottawa) Pre-Professional Programme Inc. V. Crichton Cultural Community Centre, [2006] O.J. 5224

Wilson Cartage Ltd. V. Carlisle, [2011] ONSC 1154

Protective Measures – 10/11/2015

Preservation of Rights – provisional and protective measures

Interlocutory Injunction – RJR MacDonald

Freezing Orders/Seizing Orders

RJR-MacDonald Inc. v Canada (Attorney General) [1994] 1 SCR 311

Protective Measures – 12/11/2015

Mareva Injunction

Tracy v Instaloans Financial Solutions Centres [2007] B

Greater Vancouver Sewerage and Drainage v Canadian National Railway [2012] BCSC 1929

Opera on Original Site Inc. c. China Performance Art Agency [2005] QCCS

Anton Piller Orders

Celanese Canada Inc. v Murray Demolition Corp [2006] 2 SCR 189

Disclosure and Discovery – 13/11/2015

Disclosure vs. Discovery

Discovery (NCCP 221 et seq.)

Lac d’Amiante du Québec Ltée v 2858-0702 Québec Inc.[2001] 2 SCR 743

Juman v Doucette, [2008] 1 SCR 157

Ben v Gates (and Kim) (2013) ONSC 5814

Hazard, Discovery and the Role of the Judge in Civil Law Jurisdictions

The Sedona Canada Principles – Addressing Electronic Discovery

Summary Proceedings – 17/11/2015

Types of Summary Proceedings

Motion to Strike

Motion to Dismiss

Unfounded in Law/No reasonable cause of Action

Stare Decisis

R v. Imperial Tobacco Canada Ltd. 2011 SCC 42

Canada (Procureur General) c. Imperial Tobacco, 2012 QCCA

Canada (Attorney General) v. Confédération des syndicat nationaux, 2014 SCC 49 (headnote)

Summary Judgment

Hyrniak v. Mauldin, 2014 SCC 7

Summary Trial

Summary Trial vs. Judgment?

Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.

Question of Law

Continuance/Withdrawal

S.H. c. S.T.L. et al, 2008 QCCS 2853

Costs – General Policy – 19/11/2015

Models for Cost Payment

What are costs?

Who is going to have to pay costs?

How Do Courts Award Costs?

Costs as a Policy Tool

Australian Law Reform Commission, “Costs Shifting — who pays for litigation”, (ALRC Report 75, October 1995) (excerpt)

Walker v Ritchie, 2006 SCC 45 (excerpt)

Elevated/Special Costs

Royal Lepage Inc. v. 109650 Canada Ltd., 2007 QCCA 915

Davies v. Clarington (Municipality), 2009 ONCA 722

SLAPPs

Industries Lassonde inc. v. Oasis d'Olivia inc. 2010 QCCS 3901 (excerpt)

Offers to Settle

Kalish v. Rosenbaum, 2010 ONSC 3189

J.D. v. Chandra, 2014 BCSC 1272

McKinnon v. Polisuk, 2009 QCCS 5778 (esp. para. 11ff)

Costs (II) – Exceptional Cost Orders – 24/11/2015

Costs Against Solicitor Personally

Interim or Advance Cost Orders

Beardy v. Canada (Attorney General), [2003] O.J. No. 3940 (SCJ)

British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 SCR 371

Public Interest Costs Generally

Carter v. Canada (Attorney General), [2015] SCC 5 (Costs Excerpt)

Hétu c. Notre-Dame-de-Lourdes (Municipalité de), [2005] QCCA 199

Security for Costs

Sprinkles Cupcakes v. Dlish Cupcakes, [2013] ONSC 866

Chris Tollefson, “Costs in Public Interest Litigation Revisited”

Class Actions (I) – 26/11/2015

What is a Class Action?

Authorisation

Article 1003 CCP (575 NCCP)

Class actions against multiple defendants

Effects of Authorisation

Recovery in Class Actions

Some Notable Cases

McNamara, Multi-Jurisdictional Class Actions in Canada

Class Actions (II) – 01/12/2015

Authorisation/Certification

Preferable Procedure (Rest of Canada vs. Quebec)

Hollick v. Toronto (City), 2001 SCC 68 – very important case.

Commonality Requirement (1st Criteria)

Vivendi Canada Inc. v. Dell ‘Aniello, 2014 SCC 1

Representative Plaintiff Requirement (4th Criteria)

BMO v. Marcotte, 2014 SCC 55

Opt out/Opt in

National Class Actions

Costs implications in Class Actions

Kerr v. Danier Leather Inc., 2007 SCC 44

Court Authorisation of Settlements and Lawyers’ Fees

Landry c. Syndicat du transport de Montreal, 2006 QCCS 1623

Wrap Up

Introduction – 08/09/15

Outline:

-What is this course about?

-What issues in JICP make this course interesting and important?

-Major Changes in JICP

-Video: South African Constitutional Court (Albie Sachs)

What is this course about?

-Institutions of civil justice provided by the state.

• Civil Justice: not criminal justice or procedure or administrative justice.
• State: we will touch on mediation and negotiation but the course is mainly about the judicial institutions offered by the state.

-Basic framework and how to find the details about how a case goes through the courts.

-Everything up until trial, not the trial itself.

• Pre-trial period.

What issues in JICP make this course interesting and important?

-Dynamic on the judicial front

• You wait a long time for juicy contracts cases.The SCC is really busy in issues like access to justice, confidentiality and mediation, appellate review, judicial appointment, motions to dismiss, and class actions (just in the last 2 years)

-Dynamic on the legislative front

• New QCCP. Ontario rules are constantly changing.

-Reflects and/or impacts legal culture and basic values of society.

Major changes in JICP

-Exponential rise in self-represented litigants (no more lawyers) – 37% of litigants are self-represented.

• Too costly – courts cost the taxpayer $10,000 a day.It is estimated that a 7 day trial costs between $37,000 and $125,000.Problem: bias towards self-reps.

-Increase in alternative dispute resolution (ADR) and judicial dispute resolution (JDR).

• The first 7 articles in the CCP talk about ADR.Ontario rules: in ordinary proceedings, parties have a mandatory mediation proceedings. Cost penalty for not accepting a settlement if the result of the trial is not better than the settlement.

-Explosion of the class action

• New phenomenon. First class action was in Quebec (strange because it is not a civilian tradition). First one in Ontario was in 1992.

-Rise in the use of technology in the courts

• Pre-trial discovery – very important part of pre-trial.E-discovery is becoming a huge problem – email chains can be altered. Destroying electronic evidence – easily destroyed. Judicial institutions – open court principle – no privacy in law – embarrassment is not an exception – GOOGLE – should we think differently about the open court principle – like finding out about a judge.

-Widespread reforms in civil procedure

• What’s wrong with it and how can we fix it?Many reports on civil procedure
• Lord Woolf – wrote a famous report in England was the basis of significant justice reform – points to the lawyer as the bad guy and suggests to move the power away from the lawyer and into the hands of the judge.

Video: South African Constitutional Court (Justice Albie Sachs)

The Court was Established in 1994. Defending fundamental rights – gender equality, human rights. No language is superior to any other language – 11 official languages. Openness – not secret – transparency“Justice under a tree” – beauty and natural light. Justice is not a cloistered virtue – open court principle. Liberated – Free – not enclosed – courtyard principle. Difference/diversity is cherished. Respect for and celebration of art, history, culture and the people of SA.Equality – accessibility to justice. A Constitution of the people – the people had a hand in creating it.Impartiality – must you rid yourself of all your humanity and be neutral or can you bring your own past and experience to the courtroom?

Purposes and Reform of Civil Procedure I – 10/09/2015

Outline:

-Important Basic Questions

• Inherent Jurisdiction
• Where do we find civil procedure?
• Major differences between civil traditions
• Underlying values
• Problems, solutions, implementation of solutions

-J.A. Jolowicz, “On the Nature and Purpose of Civil Procedural Law”

-J. Lachapelle et al, “Le monde judiciaire malade de sa justice”

-R. McMurtry, “We Are Not All Equal Before the Law”

-R. Jukier, “The Influence of Legal Traditions on Civil Procedure: Lessons from Quebec’s New Code of Civil Procedure”

-Explanatory Notes and Preliminary Provision,Bill 28 (2014, c. 1)

Important basic Questions

What is procedural law?

-Judicial institutions – The procedural hardware – physical structure

-Civil procedure – The procedural software – the rules

• Contrasted with substantive law (the “what”) – Contracts, tort, criminal law
• Known as the “How”
• “Procedural Law is the handmaid, not the mistress” – Jolowicz. It is the enabler, the means by which the substantive can function.
• Enabler:
• 1965 code – art 2; New code – art 25
• Adjectival law
• Rule 2 of the Ontario rule; art. 2 of the 1965 code; art. 25 of the new code: Failure to observe the rules does not prevent the application from being decided as long as it is remedied in a timely manner.
• Diminishes the importance of the procedure – it’s the plumbing
• Also a lot of substantive procedural law dealing with rights.
• Right to notice, rights to discovery – disclosure of evidence, rights of appeal
• Abuse of rights – Right not to be subject to someone else’s abuse of procedure.

-Adrian Zuckerman: first to write academic theory on civil procedure:

• Viewing procedure as an enabler is bad because the judges have to be re-educated on how to manage these new changes.
• Legislatures enact new rules to prevent shady lawyer tactics to skirt the rules. Blames the judges for the problem – Judges cannot bear to decide on a case based solely on procedure.
• Examples:
• Best buy case: Served with an action twice and did not answer the summons and they lost by default. They appealed and the judge ruled in favour of best buy.
• This kind of case makes Zuckerman upset because what is the point of having these procedural rules if they are not being followed.
• There is an obligation (mandatory) delay of 180 days, on the penalty of having your case thrown out (time to do discovery, prep, etc.). They can, however, petition the judge to extend this delay. Almost every judge allows for this extension.
• Zuckerman: what good is the point of extending the delay? The whole point of this 180 day delay is to reduce delaying tactics.

Inherent Jurisdiction

-Courts are divided into:

• Statutory courts – Get their power only from statutes (Provincial court)
• Superior courts – Every province has a Section 96 federally appointed court
• They are federally created and have inherent jurisdiction
• They are based on the English system (inherited).
• Not statutory courts, don’t need statutes to make decisions. They don’t have any specific jurisdiction.
• They are allowed to do whatever is needed in cases of equity.
• How can this apply to Quebec?Art 49 of the new code: The courts and judges have all the powers necessary for the exercise of their jurisdiction both in the first instance and in appeal.
• Appellate Courts – Deference to the lower courts, can only overturn decisions on matters of law.
• Supreme court – only 70-75 cases a year
• ALI/Unidroit – Principles of transnational civil procedure
• Goal: to harmonise procedural law in transnational cases
• Soft law – not actually law
• In certain circumstances, parties can make them law – through arbitration – can put them in their contract (particularly international contracts)

Where do we find civil procedure?

-Different civil procedure in the world:

• We have a vision of one legal system: the English adversarial system. However, the continental civilian system: the French inquisitorial/investigative system. Whatever the differences, all have the same basic issues.

What are major differences between legal systems?

-Civil Law system (continental)

• The judge is assigned to the case at the very beginning, the judge is in charge of investigating the evidence, he is the central figure, active and vocal. Judge-centred. No jury, so there is no pre-trial, then trial. No discovery because it is up to the judges to discover the evidence and meet with witnesses. Court of Appeal hears around 28,000 cases a year. Judges go to a special judge school before becoming judge.

-Common Law system (English)

• The judge is simply a passive umpire and leaves it up to the parties to find the evidence and argue the law. He simply has to decide between two opposing arguments. Party-centred. Jury system, so they need the pre-trial for discovery, and building the jury. Court of appeal (Supreme Court) handles only about 65-85 per year. There is no similar “judge school” in the common law system.

-Although the world is divided, there is no “civil law”, they share a history and tradition but there are major distinctions between French, German, etc. It is the same with the Common law system, in that there are major differences between the English system and the American system.

-QUEBEC:

• Procedural laws are not civilian in Quebec. In the beginning, when it was a French colony, it did follow the French system (1667). When the English won, they imposed their own laws, and then the Quebec Act (1774) restored it to the civilian tradition. But it did not restore the civilian procedural laws.Mixed source of civilian tradition, we have come to resemble the English adversarial system.
• Jukier’s thesis: that we are moving back to a civilian inquisitorial system as a way of reforming the system.

What are, or ought to be its goals or underlying values?

-Fair/just/equal – No two-tiered system – you can’t pay for your judge or a faster trial.

-Impartial/Accountable/Open/Transparent = Trustworthy – So that we can see if the judges are fair and impartial.How do we hold judges accountable?

-Efficient – Currently not efficient. Not just time – also resources. New notion of proportionality.

-Accessible – Financially – there shouldn’t be too many financial barriers.

• 4 factors to inaccessibility:Cost, Anxiety, Complexity, Delays

-Cooperation – Not ever listed in any of the traditional values of the civil justice system. Is it a value of the civil justice system or is it a value to keep out of the civil justice system?