C(L) v Alberta ...................................................................................................................................................... 1
COURT OF QUEEN'S BENCH AND COURT OF APPEAL ............................................................................... 1 FEDERAL COURT ..................................................................................................................................... 1 PROVINCIAL COURT OF ALBERTA ............................................................................................................ 2 ADMINISTRATIVE BODIES OR TRIBUNALS ............................................................................................... 2
PROFESSIONAL RESPONSIBILITY ..................................................................................................................... 2
CH 1: GENERAL RULE .................................................................................................................................. 2 CH2: WITHDRAWING FROM REPRESENTATION / REPRESENTATION ........................................................... 2 CH 6: UNREP’D LITIGANTS & DISCOVERING A MATERIAL ERROR/OMISSION .............................................. 3 UNDERTAKINGS & TRUST CONDITIONS ...................................................................................................... 3
Witten, Vogel, Binder & Lyons v Leung .............................................................................................................. 3
LIMITATION PERIODS ..................................................................................................................................... 3
Bowes v Edmonton ............................................................................................................................................. 4
Gayton v Lacasse (ACA 2010) – summary j app dismissed by ACA .................................................................... 4
When Does Injury Warrant Bringing a Proceeding? ............................................................................. 4 Mainstreet Development (sister cases – 2004, 2005) ........................................................................................ 4
Meaning – “ought to have known” ..................................................................................................... 4 Condo Building Case (from ABCA) ...................................................................................................................... 5
Regarding Breach of Duty – s.3(3) ....................................................................................................... 5
EXCEPTIONS TO S.3 .................................................................................................................................... 5 s 11 – Order/Judgement for Payment ............................................................................................................ 5
s 4 – Concealment (Fraud) ............................................................................................................................. 5
JN v Kozens (2004 ABCA) .................................................................................................................................... 6
s 5 – Persons Under Disability ........................................................................................................................ 6
s 5.1 – Minors ................................................................................................................................................ 6
s 6 – Claims Added to a Proceeding ............................................................................................................... 6
Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman SA – amend vs add claim .............. 6
The Crown (Alberta) v Raillink Canada Ltd – a changed party is an added claim .............................................. 7
Kydd v Abolarin .................................................................................................................................................. 7
s 7 – Agreement (aka tolling agreement/standstill agreement) ..................................................................... 7
ss 8, 9 – Acknowledgment and Part Payment ................................................................................................ 7
CONFLICT OF LAWS – S.12 .......................................................................................................................... 8
VENUE (ie. where are you going to bring the action?) .................................................................................... 8
Rule 3.2 – must commence your action in the appropriate judicial centre ..................................................... 8
Rule 3.3 – how to determine appropriate judicial centre ............................................................................... 8
Rule 3.5 – court can change jud centre .......................................................................................................... 8
Siver v Siver – changing judicial centres test ...................................................................................................... 8
WHO ARE THE PARTIES? ................................................................................................................................ 8
STYLE OF CAUSE ......................................................................................................................................... 8
1. STANDARD CASES ............................................................................................................................... 8 A. Living Adult With Capacity .............................................................................................................. 8 Self-‐Represented Litigants ............................................................................................................................. 9
Rule 2.22 – ppl may rep themselves (lawyer not req’d) .................................................................................... 9
Rule 2.23 – can have assistance when self rep .................................................................................................. 9
B. The Crown ...................................................................................................................................... 9 Provincial Crown ........................................................................................................................................... 9
Federal Crown ............................................................................................................................................... 9
Canada Deposit Insurance Corp v Crisco ............................................................................................................ 9
C. Municipalities and the Police .......................................................................................................... 9 D. Corporations .................................................................................................................................. 9 E. Proprietorships and Trade Names ................................................................................................. 10 Rule 2.5 – can sue/be sued in name of proprietorship or trade name .......................................................... 10
F. Partnership ................................................................................................................................... 10 Rule 2.2 – how to sue partnership ............................................................................................................... 10
Rule 2.4 – how to serve a partnership ......................................................................................................... 10
2. EXCEPTIONS TO THE GENERAL RULE ................................................................................................. 10 Rule 2.11 – ppl that require a litig rep ......................................................................................................... 10
Rule 2.12 – 3 types of litig reps .................................................................................................................... 11
A. Deceased Persons ......................................................................................................................... 11 Hints v Berry – ***possible exam Q!*** .......................................................................................................... 12
B. Estate of the Dead ........................................................................................................................ 12 C. Adults that Lack Capacity .............................................................................................................. 12
Rangelander Holding Ltd v Calgary (City) – ind cannot rep co/skills test ........................................................ 12
Beacon Hill Service (2000) v Esso Petroleum Canada – lawyer can rep self, but not co he’s a W for .............. 12
D. Minors ......................................................................................................................................... 12 Champagne v Sidorsky – lawyers have monopoly for representing ppl in court ............................................. 13
C(L) v Alberta – strangers can be appt’d LR ..................................................................................................... 13
3. ANOMALOUS SITUATIONS ................................................................................................................ 13 A. Trustee/Beneficiary ...................................................................................................................... 13 Rule 2.1 – can sue personal reps of estate or trustee ................................................................................... 13
Rule 2.10 – court may grant app to grant person intervener status .............................................................. 13
B. Representative Actions ................................................................................................................. 13 Rule 2.6 ....................................................................................................................................................... 13
C. Class Proceedings ......................................................................................................................... 13 SUMMARY ........................................................................................................................................... 14
STATEMENT OF CLAIM VS ORIGINATING APPLICATION ................................................................................ 14
HOW DO YOU DECIDE? ............................................................................................................................ 14 Rule 3.2 – when OA is appropriate .............................................................................................................. 15
Rules 3.26(1) – once SOC filed, have 1 yr to serve ........................................................................................ 15
Rule 3.26(2) – can renew SOC for 3 months ................................................................................................. 15
Rule 13.6(1) – succinct pleadings (but better to put in more) ....................................................................... 15
Rule 13.6(2) – what must be in the pleadings (facts, defences, remedies) .................................................... 15
Rule 13.6(3) – claims that you must state in pleadings ................................................................................. 16
Rule 13.7 – claims you must give particulars for .......................................................................................... 16
Rule 13.6(4) – D must say if he’s going to raise ev on P’s reputation ............................................................ 16
Rule 13.8 – other things that may be incl’d in pleadings .............................................................................. 16
Rule 13.10 – replies to st’s of defence ......................................................................................................... 16
Rule 13.12 – silence is not admission ........................................................................................................... 16
Lax Kw’alaams Indian Band v AG Canada -‐ re pleadings ................................................................................. 16
Rodaro v Royal Bank of Canada ....................................................................................................................... 16
SERVICE ....................................................................................................................................................... 17
McGillis v Hirtle ................................................................................................................................................ 17
INTRODUCTION ........................................................................................................................................ 17 Rule 2.30 – if lawyers change, must serve new lawyer ................................................................................. 17
Rule 11.1 – CD must be served accrd to Rules/statute ................................................................................. 17
Rule 11.3 – can serve according to parties’ K (or by rules) ............................................................................ 18
Individuals ........................................................................................................................................ 18 Rule 11.5 – must effect personal service on inds ......................................................................................... 18
Party’s Lawyer .................................................................................................................................. 18 Rule 11.16 – Lawyers can accept service in writing ...................................................................................... 18
Litigation Representative .................................................................................................................. 18 Rule 11.7 – serve litigation reps in the same method as inds ....................................................................... 18
Rule 2.12(2) – if and ind has a litig rep, you must serve the litig rep (not the ind) ........................................ 18
Self-‐Represented Litigant ................................................................................................................. 18 Rule 11.18 – self-‐rep’d litigant can accept, in writing, service of a CD .......................................................... 18
Rule 11.13 – corp w trade name .................................................................................................................. 19
Trade Names of a Sole Proprietorship ............................................................................................... 19 Rule 11.12 – claim against single ind carrying on bus under a trade name ................................................... 19
Partnership ....................................................................................................................................... 19 Rule 11.10 – service on limited p/ships ........................................................................................................ 19
Rule 11.11 – service on p/ships (other than ltd p/ships) .............................................................................. 19
Statutory and Other Entities (ex: RCMP, WCB) .................................................................................. 19 Rule 11.14 ................................................................................................................................................... 19
Business Representative of Absent Party .......................................................................................... 19 Rule 11.19 ................................................................................................................................................... 19
NON-‐COMMENCEMENT DOCUMENTS ...................................................................................................... 19 Rule 11.15 – can serve to address provided on CD ....................................................................................... 19
Rule 11.16 – can serve to lawyer on record ................................................................................................. 19
Rule 11.20 – you can still serve according to the rules of commencement documents ................................. 19
Rule 11.21 – can serve by electronic method (usually to lawyer) ................................................................. 19
Rule 11.22 – serving via recorded mail ........................................................................................................ 20
FORECLOSURE ACTIONS ....................................................................................................................... 20 Rule 11.23 – 11.24 – in re of foreclosure actions .......................................................................................... 20
SUBSTITUTIONAL SERVICE .................................................................................................................... 20 Rule 11.28 ................................................................................................................................................... 20
McGillis v Hirtle ................................................................................................................................................ 20
VALIDATING SERVICE ........................................................................................................................... 20 Rule 11.27 ................................................................................................................................................... 20
DISPENSING WITH SERVICE .................................................................................................................. 21 Rule 11.29 ................................................................................................................................................... 21
SETTING ASIDE SERVICE ........................................................................................................................... 21 Rule 11.31 ................................................................................................................................................... 21
SERVICE EX JURIS ..................................................................................................................................... 21 Rule 11.25 – how to serve outside AB but in Canada & outside Canada ....................................................... 21
Club Resorts Ltd v Van Breta ............................................................................................................................ 22
RENEWAL (OF SERVICE PERIOD) ................................................................................................................... 22 Rule 3.26 – app w/in 1 yr ............................................................................................................................. 22
Wardill v Peebles .............................................................................................................................................. 22
Rule 3.27 – app outside 1 yr ........................................................................................................................ 22
Makar v Luedey ................................................................................................................................................ 23
Rule 3.28 – if 3.26/3.27 don’t apply, action dead ......................................................................................... 23
JOINDER OF CLAIMS AND PARTIES ............................................................................................................... 23
ADDITION OR SUBSTITUTION AFTER EXPIRY OF LIMITATION .................................................................... 23 The Crown (Alberta) v Railink Canada Ltd; Stout Estate v Golinoswski Estate ................................................. 23
PARTIES ADDED ON OWN MOTION/INTERVENORS .................................................................................. 23 Rule 2.10 – allows court to grant intervener status ...................................................................................... 23
University of Alberta v Alberta (Information and Privacy Commissioner) ........................................................ 23
AMENDMENT OF CLAIMS ............................................................................................................................ 24
Rule 3.62 – allows you to amend your pleadings ......................................................................................... 24
Rule 3.65 – amendments not related to a party; court has authority to allow amendments ........................ 24
Rule 3.66 – cost assoc w the amendment borne by the party wanting the amendment ............................... 24
Rule 3.67 – when pleadings close ................................................................................................................ 24
Rule 3.74 – amendment re a party (adding, removing, substituting) after pleadings close ........................... 24
Manson Insulation Products Ltd v Crossroads C & I Distributors ..................................................................... 25
Rago Millwork v D Woodhouse Construction ................................................................................................... 25
Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman SA ................................................ 25
EVIDENCE ON AN AFFIDAVIT .................................................................................................................... 25 Gendreau case ................................................................................................................................................. 25
JOINING AND SEPARATING CLAIMS AND PARTIES ........................................................................................ 26 Rule 3.69 – can have 2 or more claims in 1 lawsuit, unless court orders otherwise ...................................... 26
Rule 3.70 – parties can join to bring an action ............................................................................................. 26
Rule 3.71 – can separate claims where there has been a joinder of Ds ......................................................... 26
Rule 3.72 – consolidation of claims .............................................................................................................. 26
Scheidl v Southam Inc ...................................................................................................................................... 26
REQUEST FOR PARTICULARS ........................................................................................................................ 26
Rule 13.7 – causes of action where P must plead particulars ....................................................................... 26
Rule 3.61 – allows parties to serve request for particulars ........................................................................... 26
Riske v Kittlitz ................................................................................................................................................... 27
Tomkow v Oldale – court can postpone particulars until after doc productions/Q’ing ................................... 27
PROCEDURE ON DEFAULT ............................................................................................................................ 27
Rule 3.39 – judgment for debt or liquidated demand .................................................................................. 28
LIQUIDATED CLAIMS ............................................................................................................................ 28 Standard Oil Company of British Columbia Ltd v Wood ................................................................................... 28
NOTING IN DEFAULT (aka “praecipe”) .................................................................................................. 28 Rule 3.37 – what judge can do ..................................................................................................................... 28
Rule 3.40 – when judgment is entered against some, but not all Ds ............................................................. 28
Rule 3.42 – can’t get default judgment if D is taking steps in regards to the claim ....................................... 29
Rizzie v JH Lilley and Associates Ltd ................................................................................................................. 29
PLEADINGS SUBSEQUENT TO STATEMENT OF CLAIM ................................................................................... 29
STATEMENTS OF DEFENCE ....................................................................................................................... 29
TYPES OF STATEMENT OF DEFENCES .................................................................................................... 29 Barcellona v Einarson – app to strike claim for delay ...................................................................................... 30
DEMAND FOR NOTICE .............................................................................................................................. 30
Rule 3.34 – demand for notice by D ............................................................................................................. 30
Bell v Grande Mountain Apartments ............................................................................................................... 30
COUNTERCLAIM ....................................................................................................................................... 30 Rule 3.56 – D’s right to counterclaim ........................................................................................................... 30
Rule 3.57 – CC must be filed same time as SOD -‐ contents -‐ time period ...................................................... 30
Rule 3.58 – CC is an independent action ...................................................................................................... 31
THIRD PARTY NOTICE ........................................................................................................................... 32 Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman (ABCA) ......................................... 32
Rule 3.44 – when Ds/3P Ds can file a 3P claim against someone .................................................................. 33
Rule 3.45 – form of 3P claim/have 6 months from SOD to file 3P claim ........................................................ 33
Rule 13.5 – extension for 3P claims ............................................................................................................. 33
Rule 3.46 – once joined as a 3P D, the 3P has the same rts as any other party ............................................. 33
Rule 3.47 – 3P D options .............................................................................................................................. 33
Rule 3.48 – Ps options w re to 3P claims (can apply to strike out a 3P claim) ................................................ 33
Rule 3.50 – 3P D may file a demand for notice using Form 18 (same timeline as rule 3.49) .......................... 34
Rule 3.52 – consequences of 3P D not filing 3P SOD ..................................................................................... 34
Rule 3.53 – judgment against 3P D .............................................................................................................. 34
Rule 3.54 – P’s reply to 3P defence .............................................................................................................. 34
Rule 3.55 – application of rules to 3P claims ................................................................................................ 34
LIMITATIONS ........................................................................................................................................ 34 Dean v Kociniak ................................................................................................................................................ 34
Pagnucco v Sears Canada Inc ........................................................................................................................... 34
DISCLOSURE OF RECORDS/EVIDENCE ........................................................................................................... 35
AFFIDAVIT OF RECORDS ........................................................................................................................... 35 Rule 5.1 – starting pt (purpose & scope) ...................................................................................................... 35
Rule 5.5 – when AOR must be served .......................................................................................................... 35
Rule 5.6 – form and content of AORs ........................................................................................................... 35
Rule 5.7 – producible records (may be bundled) .......................................................................................... 36
Rule 5.8 – records for which there is an objection to produce ...................................................................... 36
Rule 5.9 – AOR must be sworn by parties .................................................................................................... 36
Rule 5.10 – duty to disclose new records (it’s a continuing obl to disclose) .................................................. 36
Rule 5.11 – court can order for record to be produced ................................................................................. 36
Rule 5.13 – court can order production of records from a non-‐party ............................................................ 36
Rule 5.14 – inspection and copying of records (not incl privileged records) .................................................. 36
Rule 5.15 – admissions of authenticity of records ........................................................................................ 36
IF YOU DON’T SWEAR/SERVE THE AOR, WHAT ARE THE CONSEQS? ...................................................... 37 Rule 5.12 – penalty for not serving AOR ...................................................................................................... 37
Sun Life Assurance Company of Canada v Tom 2003-‐1 Limited Partnership #2 – “suff cause” ....................... 37
Chevalier v Sunshine Village Corp – rule 3.68 is a suff excuse ......................................................................... 37
Wagner v Petryga Estate – need reas excuse beyond control of the party ..................................................... 37
Rule 5.16 – undisclosed records not to be used w/o permission .................................................................. 37
Rule 5.11 – court can order a record to be produced (see above) ................................................................. 37
WHEN DRAFTING AOR, THERE ARE CHOICES RE WHAT RECORDS APPLY ............................................... 37 1. Records Which are Relevant and Material .................................................................................... 37 Rule 5.2 – what is relevant/material ............................................................................................................ 37
Boxer v Reesor .................................................................................................................................................. 37
Canadian Natural Resources Ltd v Shawcor Ltd – something relevant may not be material .......................... 37
Lazin v Ciba-‐Geigy Canada Ltd, Jacobs and McClure – a diary is producible ................................................... 38
Leduc v Roman – facebook stuff is producible ................................................................................................. 38
M(A) v Matthews – prior lawsuits are certainly relevant, probably material .................................................. 38
2. Records Under a Party’s Control ................................................................................................... 38 Western Union Insurance Company v Nihill ..................................................................................................... 38
McInerney v Macdonald (SCC) – patient’s file is his prop (dr obliged to give copy if requested) .................... 38
McAllister v Calgary (City) (ABCA) .................................................................................................................... 38
3. The Exception for Privileged Records ............................................................................................ 38 Ordinary Privilege ....................................................................................................................................... 38
AM v Ryan (SCC) – ltd production of psychiatrist notes .................................................................................. 39
Litigation Privilege (aka In Contemplation of Litigation Privilege) ................................................................ 39
Without Prejudice Communications ............................................................................................................ 39
QUESTIONING .............................................................................................................................................. 40 Landes v Royal Bank of Canada ....................................................................................................................... 40
SCOPE AND PURPOSE OF QUESTIONING .................................................................................................. 41 Rule 5.1 – purps and scope of Q’ing (see page 35) ....................................................................................... 41
Quality Investments Ltd v Curtis Engineering & Testing Ltd – Q’ing expert Ws on their opinions ................... 41
Can-‐Air Services Ltd v British Aviation Insurance Co Ltd – Q’ing is about eliciting facts, not law .................... 41
Rule 5.19 – limiting or cancellation of Q’ing ................................................................................................. 41
Rule 5.20 – must serve AOR before Q’ing / when Q’ing is to take place ....................................................... 41
Rule 5.21 – appt for Q’ing (serve notice 20+ days before Q’ing) ................................................................... 41
Rule 5.22 – Q’ing may be done orally, under oath, or by written Qs, answered under oath ......................... 41
Rule 5.23 – person to be Q’d must reas prepare for Q’ing and must bring relevant records ......................... 41
Rule 5.26 – oral transcript and exhibits ........................................................................................................ 41
Rule 5.27 – continuing duty to disclose ........................................................................................................ 41
PARTIES ADVERSE IN INTEREST ................................................................................................................ 41 Turta v CPR ....................................................................................................................................................... 41
Golden Estate v Neilson ................................................................................................................................... 42
OBJECTIONS IN Q’ING .............................................................................................................................. 42 Rule 5.25 – appropriate Qs and objections .................................................................................................. 42
EMPLOYEES AND OFFICERS ...................................................................................................................... 42 Rule 5.4 – appointment of corporate reps ................................................................................................... 42
Rule 5.17 – who you can examine ............................................................................................................... 42
Rule 5.18 – can examine someone who provided services to corp ............................................................... 43
Rule 5.29 – only corp reps can bind a corp ................................................................................................... 43
Cogent Group Inc v EnCana Leasehold Ltd Partnership – a service provider can be examined ....................... 43
CANA Construction Co Ltd v Calgary Centre for Performing Arts – an unpaid vol can be an officer ................ 43
Tremco Inc v Gienow Building Products Ltd – former e/ee can be Q’d about info gained prior to e/ent ........ 43
Petro-‐Canada Products Inc v Dresser-‐Rand Canada Inc – who is an e/ee for purposes of Q’ing ..................... 43
Psychologists Association of Alberta v Schepanovich – test for w/drawing from an undertaking ................... 44
USE OF QUESTIONING .............................................................................................................................. 44 Rule 5.31 – can’t use your client’s transcript unless… .................................................................................. 44
PROCEDURE TO READ IN ...................................................................................................................... 44 410675 Alberta Ltd v Trail South Developments Inc ........................................................................................ 44
IMPROPER OR COLLATERAL PURPOSE .................................................................................................. 44 Rule 5.33 – confidentiality and use of information (from AOR or Q’ing) ....................................................... 44
Juman v Doucette (SCC) – implied undertaking not to use for ulterior/collateral purpose ............................. 45
Hall v Wilcox – implied undertaking in 5.33 does not apply to cross exam on an aff ...................................... 45
L(P) v Alberta – the implied undertaking in 5.33 can be lifted ......................................................................... 45
Kent v Martin – info gathered at Q’ing used to add new Ds ............................................................................ 45
APPOINTMENTS ....................................................................................................................................... 45 Rule 6.16 – contents of notice of appt (req to set time, date, etc for appt) .................................................. 45
Rule 5.21 – appt for Q’ing (serve notice 20+ days before Q’ing) ................................................................... 45
Rule 6.17 – payment of allowance ............................................................................................................... 45
HOW TO MAKE AN APPLICATION ............................................................................................................. 51 Rule 6.2 – person may make an app to Court that the Court exercise its auth (starting pt) .......................... 51
Rule 6.3 – starting pt: for app to the court & notice of application .............................................................. 51
Rule 13.19 – lists requirements for affidavits ............................................................................................... 53
Byer's Transport v Terra Mining – for aff on info/belief, no source, no grounds, no good ............................. 53
Barker v Budget Rent-‐A-‐Car – test for whether something is interlocutory or final ........................................ 53
QUESTIONING ON AFFIDAVIT ............................................................................................................... 53 Rule 6.20 – every party adverse in interest gets to cross-‐examine on aff ..................................................... 53
Rozak Estate v Demas – scope of what can be examined on aff ..................................................................... 53
Ray v Rural Municipality of Meota – whole transcript of exam on aff goes in (be careful what you ask) ....... 53
Ed Miller Service v Caterpillar Tractor – scope for exam is whether it relates to Qs in issue on the app ........ 53
CRC-‐Evans Pipeline International Inc v OJ Pipelines Corp – if person swearing aff isn’t a party ...................... 53
Miller J Case – must give a W conduct money to secure attendance .............................................................. 53
ENTRY FOR TRIAL AND TRIAL ....................................................................................................................... 55
ENTRY FOR TRIAL ..................................................................................................................................... 55 Rule 8.6 – when you want to cancel/adjourn trial ....................................................................................... 55
Rule 8.7 – preparation for trial and changes to date .................................................................................... 56
Tan v Swyrd – won’t get costs for EX reports served after certifying Form 37 ................................................ 56
JURY TRIALS ............................................................................................................................................. 56 Rule 8.1 – app must be made to Chief Justice for jury trial ........................................................................... 56
Rule 8.3 – must pay a deposit for a jury trial ................................................................................................ 56
Shaw v Standard Life Assurance Co (ABQB) – granting a civil jury trial is an exercise of discretion ................ 56
ATTENDANCE OF WITNESSES AT TRIAL ..................................................................................................... 57 Rule 8.8 – notice to attend as W at trial ....................................................................................................... 57
Rule 8.9 – if W does not attend, court has broad authority to do whatever it wants .................................... 57
JUDGMENTS AND ORDERS ........................................................................................................................... 57 Rule 9.1 – what judgment/order should look like ........................................................................................ 57
Rule 9.2 – drafting the judgment/order ....................................................................................................... 57
Rule 9.3 – court can settle terms of judgment/order if there’s a dispute about the contents ....................... 57
Rule 9.4 – a judge can sign the order or the clerk can enter it (stamped and filed) ....................................... 57
Rule 9.5 – must enter judg/order w/in 3 mos (except w Court’s perm w app & notice to all) ....................... 58
Aetna Insurance Co v Canadian Surety Co (ABCA) – CA will not usually alter TJ’s interest award ................... 59
Meehan v Holt – if faced w interest claim, try to argue opposing interest for the full time ........................... 59
SETTLEMENT OFFERS ................................................................................................................................... 59 Rule 3.10 – formal offer rules don’t apply to OA unless parties agree otherwise ......................................... 59
Rule 4.24 – when you can serve/withdraw a formal offer ............................................................................ 60
Rule 4.25 – acceptance of the offer ............................................................................................................. 60
Rule 4.26 – can apply to court re costs ......................................................................................................... 60
Rule 4.27 – a FO is made w/o prej & is not an admission of anything, unless agr’d otherwise ...................... 60
Rule 4.28 – FO is kept confidential… ............................................................................................................ 60
Rule 4.29 – cost consequences of FOs .......................................................................................................... 60
Davis v Caproco Corrosion Prevention Ltd – formal offer rules apply to appeals ............................................ 60
Jones v Trans America Life Insurance Co of Canada – FO for full value of claim & cost conseqs apply ........... 61
Allen (Next Friend of) v University Hospitals Board – FO for full value not a genuine offer ............................ 61
ALTERNATIVE ROUTES TO TRIAL .................................................................................................................. 61
STRIKING OUT PLEADINGS ....................................................................................................................... 61 Rule 3.68 – court options to deal w significant deficiencies ......................................................................... 61
Reece v Edmonton (City) – claim can be struck as being an abuse of process ................................................. 61
Joly v Pelletier ................................................................................................................................................... 62
Hyreniuk v Mauldin (2004 SCC)*** .................................................................................................................. 62
Windsor v CP Railway (2014 ABCA)*** ............................................................................................................ 62
Leeds v Alberta (Minister of the Environment) – no summary j if matters raise any Q of fact or law ............. 63
BA Capital Inc v Stream Oil & Gas Ltd .............................................................................................................. 63
SUMMARY TRIAL ..................................................................................................................................... 63 Rule 7.5 – application for judgment by way of ST ........................................................................................ 63
Rule 7.6 – respondent must file/serve ev .................................................................................................... 63
Rule 7.7 – expert reports are allowed unless agreed otherwise or judge orders otherwise .......................... 63
Rule 7.8 – objecting to app for judgment by way of ST ................................................................................ 63
Rule 7.9 – what happens after ST ................................................................................................................ 63
Rule 7.11 – order for trial ............................................................................................................................ 64
Bonsma v Tesco Corporation ............................................................................................................................ 64
Islam v Mozumder – best procedure is to get the parties to agree to hold a ST 1st before the hearing ......... 64
TRIAL OF PARTICULAR QUESTIONS OR ISSUES .......................................................................................... 64 Rule 7.1 – app to resolve particular Qs or issues .......................................................................................... 64
Bailey v Guaranty Trust Co of Canada – decision made at this type of app becomes res judicata ................. 64
Gallant (Litigation Guardian of) v Farries – can’t split if overlapping issues .................................................... 64
Edmonton Flying Club v Edmonton Regional Airport Authority (ABCA) ........................................................... 65
Rule 4.31 – wider and more discretionary ................................................................................................... 65
Sucker Creek First Nation v Canada (AG) ......................................................................................................... 65
SECURITY FOR COSTS ............................................................................................................................... 65 AB Business Corps Act (s 254) – starting pt ................................................................................................... 66
Rule 4.22 – factors the court considers for security for costs order .............................................................. 66
Amex Electrical Ltd v 726934 AB Ltd ................................................................................................................ 66
Autoweld Systems Ltd v CRC-‐Evans Pipeline International Inc ......................................................................... 66
Koerner v Capital Health Authority – sec for costs can be awarded on appeal ............................................... 66
VOLUNTARY SETTLEMENT & DISCONTINUANCE OF ACTION ..................................................................... 66 Rule 4.36 – main rule for discontinuances ................................................................................................... 66
Rule 4.37 – D filing discontinuance of SOD .................................................................................................. 66
CIVIL CONTEMPT ......................................................................................................................................... 67 Schitthelm v Kelemen ....................................................................................................................................... 67
Rule 10.51 – gives court auth re contempt ................................................................................................... 67
Rule 10.52 – process of how to get someone held in contempt ................................................................... 67
Rule 10.53 – punishment for being held in contempt ................................................................................... 68
RES JUDICATA (“already been judged”) ........................................................................................................ 68
CAUSE OF ACTION ESTOPPEL .................................................................................................................... 68 Cahoon v Franks (leading case) – dams from a single tort must be assessed in 1 proceeding ........................ 68
ISSUE ESTOPPEL ....................................................................................................................................... 68 Angle v Minister of National Revenue – test for issue estoppel ...................................................................... 68
Penner v Niagara ............................................................................................................................................. 68
ABUSE OF PROCESS ...................................................................................................................................... 69 Rule 3.68 – used to strike for abuse of process (see pg.61) .......................................................................... 69
Sears Canada Inc v C & S Interior Designs Ltd .................................................................................................. 69
1
FOUNDATIONAL RULES – RULE 1.2
- To some extent, you will always reference these rules -‐ Ex: application to have you produce docs and you’ve refused bc irrelevant; they can bring application to compel you; you can say pursuant to 1.2 I've already produced lots of docs and this will just waste time • This is one area where the courts have been applying this proportionality rule
C(L) v Alberta • Rule 1.2 is intended to guide the interpretation of the new rules – “ guiding principles”
o Lens through which all rules must be interpreted. o The New Rules recognize that litigation is not just the P’s problem, but a joint problem that needs to
be fairly and justly resolved in a timely and cost-effective way: Rule 1.2(1). • Ratio: the foundational rules can be used by themselves as a basis for an application. • No time frame under which you must bring an application under Rule 1.2. • Mere denial of everything by the D will not suffice anymore though • A standalone app under 1.2(3) intended to facilitate the creation of an appropriate task list and
moving the timeline towards resolution o Not intended as a punitive measure aimed at getting litig moving when it is bogged down.
JURISDICTION
BODIES
COURT OF QUEEN'S BENCH AND COURT OF APPEAL
• Gets jurisdiction from Judicature Act have jur over: o 1. All matters previously under juris of prov courts and certain other EN courts o 2. Can grant any remedies on any terms re all legal or equitable claims, to completely determine all
matters bw the parties, and to avoid multiplicity of proceedings. (very broad) o 3. To grant relief against all penalties and forfeitures o 4. To grant declaratory relief o 5. To grant stays of proceeding o 6. To grant injunctions o 7. To grant interest
• Plenary jurisdiction (very broad) o QB has jur over all matters unless that jur has been expressly taken away o Practice pt: start w considering the matter as a QB matter, then see whether there is jur elsewhere
• The Court of Appeal has jur to hear anything the QB can hear -‐ Board v Board QB has plenary jur jur should be presumed unless it is excluded by some other statute
FEDERAL COURT
• Appealed to Federal Court of Appeal • Not plenary jurisdiction Only get jur from federal statutes – Federal Courts Act • Has jur where the relief claimed is against the Crown • Concurrent jurisdiction (bw QB & FC) in:
o Civil matters where the Crown is seeking relief o Navigation and shipping matters o Claims in relation to aeronautics o Works and undertakings connecting a prov w any other prov or terr o Although FC has jur over the above matters, practically you’d go to QB. FC has v diff rules from QB
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• Exclusive jurisdiction over: o Citizenship & immigration matters o To grant non-‐civ remedies against members of Can forces serving outside Can (ex: habeus corpus) o IP/Copyright/trade-‐mark issues (w ltd exceptions) o Grant relief against a federal body, commission or tribunal
PROVINCIAL COURT OF ALBERTA
• Gets jurisdiction from Provincial Court Act (s.9.6(1)) • Can essentially deal with anything the QB can deal with, with some exceptions • Dollar Value Limitation $25,000 maximum (+costs & interest)
o ***As of Aug 1, 2014 max increased to $50,000*** o Can sue in PC if >25K is owing, but must abandon excess amt
• Can hear claims for: o 1. Debts o 2. Damages o 3. Unjust enrichment o 4. Determination of title or rights of poss to personal prop o 5. Specific performance and rescission of K o 6. Equitable remedy (estoppel, trust)
• Exclusive jurisdiction o 7. Costs + interest (prov courts are not bound by Schedule C of the Rules of Court) o 8. Residential tenancy matters (not commercial)
• Regulations can give provincial court to grant up to $50,000 but currently the limit is $25,000. You can abandon the amount of your claim in excess of $25,000
o There may be issues with abandoning a portion of the claim and then trying to convert to QB later on. If you have not abandoned part of your claim, converting to QB later on should not be an issue
o Do not consider the interests + costs when evaluating the claim. So you can have $25,000 in claims plus costs
-‐ Parris v Reber A claim can be made for $4K in debt & $4K in dams as long as they’re 2 distinct claims w no double recovery (limit was 4K at the time)
ADMINISTRATIVE BODIES OR TRIBUNALS
• Zero jur unless given by statute • Judicial review of tribunal decisions are possible • Arbitration Board
o If the matter is dealing w something that involves a true arbitration clause o There is a limitation period for arbitration as well
• For exam: know how to flag the issue (ex: P is driving to work & crashes may be a WCB (tribunal) issue)
PROFESSIONAL RESPONSIBILITY
• The rules below re PR are from the Law Society of Alberta’s Code of Conduct
CH 1: GENERAL RULE
• 1.01: General rule that lawyer has duty to carry on a practice with the utmost integrity
CH2: WITHDRAWING FROM REPRESENTATION / REPRESENTATION
• 2.07(1): A lawyer must not w/draw from rep of a client except for good cause & on reas notice to the client o Reas notice is often dictated by timing
• 2.07(2) If there has been a serious loss of confidence bw the lawyer & client, the lawyer may w/draw o Client is dishonest (have a duty to tell court if client has blatantly lied under oath)
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o Client refuses to accept or act upon your advice on a significant point o Client persistently uncooperative and/or unreasonable o Cannot get instructions from the client o No payment of fees but only if it does not result in serious prejudice against the client
• 2.07(5): A lawyer must withdraw if o discharged by a client; o a client persists in instructing the lawyer to act contrary to professional ethics; or o the lawyer is not competent to continue to handle a matter.
• 4.01: When acting as an advocate, a lawyer must represent the client resolutely & honourably w/in the limits of the law, while treating the tribunal w candour, fairness, courtesy & respect
o No unilateral communication and if giving notice/app of some kind, give notice to all parties involved o No contact w other side if they have a lawyer & don’t take advantage of other ppl’s mistakes o Must make sure not to waive clients’ legal rts w/o their instruction (esp around LPs standstill agrs) o Clients have rt to be served docs in accord. w the rules need client permis to accept service for them
CH 6: UNREP’D LITIGANTS & DISCOVERING A MATERIAL ERROR/OMISSION
• 6.02(11): When a lawyer deals on a client’s behalf with an unrepresented person, the lawyer must: a) advise the unrep’d person to obtain independent legal representation; b) let them know the lawyer does not act for them & their interests will not be protected by the lawyer; and c) make it clear to the unrep’d person that the lawyer is acting exclusively in the interests of the client o Also, must disclose all material facts to the court (don’t need to do this if other side has a lawyer)
• 6.07: When, in conn w a matter for which a lawyer is resp, a lawyer discovers a material error/omission that is or may be damaging to the client regardless of whether it’s capable of rectification, the lawyer must:
a) promptly inform the client of the error or omission; b) recommend that the client obtain independent legal advice concerning the matter, including any rights
the client may have arising from the error or omission; and c) advise the client of the possibility that, in the circs, the lawyer may no longer be able to act for them.
• Practically, seek advice from other lawyers & ALIA on handling the sit o Depending on the mistake: (1) tell client right away or (2) wait as you may be able to solve it
UNDERTAKINGS & TRUST CONDITIONS
-‐ Undertakings where you say I undertake to do something either to the court or another L must honour it -‐ Trust conditions v similar to undertakings (high promise)
Witten, Vogel, Binder & Lyons v Leung • L must honour his prof obls over his clients’ instructions as this is an overriding public interest
o Fulfilling your obls as an officer of the court is more imp than the client-‐lawyer rel • Once you accept a trust cond you are bound
o If you receive a doc w trust conds you must return it immediately or you will be bound by the cond • Trust cond will be judicially enforced in same manner as undertaking (Courts see them as same thing)
LIMITATION PERIODS
Imp: On exam dates always relevant; explain why each of the dates could be the date on which the LP could start
CORE RULES
s 3 – Limitations Act • (1) The D in an action is immune from liability when: (whichever expires first)
o (a) 2 years after the date on which the claimant first knew, or in the circs ought to have known, (i) That the injury for which the claimant seeks a remedial order had occurred, (ii) That the injury was attributable to conduct of the defendant, and
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(iii) That the injury, assuming liab on the part of the D, warrants bringing a proceeding, or o (b) 10 years after the claim arose
-‐ Injury: personal injury, prop damage, economic loss etc (ex: br of K knowledge may not start on br of K)
Bowes v Edmonton • 10 yr rule is uncond’l LP starts to run from when neg act itself occurred (discoverability is irrelevant)
-‐ Note: summary judgement app go to chambers & state this claim should end right now w/o trial bc it’s v clear that it will not succeed If not successful, actions carries on
• LP is one area where this may succeed
Gayton v Lacasse (ACA 2010) – summary j app dismissed by ACA • Feb 2005: D injures P; P goes to ER & diagnosed w concussion; Later suffers another assault & another concuss. • Feb 2007: thinks something is wrong and goes to brain clinic diagnosed w permanent brain injury • April 2007: GP suggests P seek legal advice re first assault and writes report • May 2008: SOC filed • Judge P knew of assault & injuries thus she had discovered/ought to have discovered material facts on
which action based in Feb 2005; therefore statute barred (granted summary j) • ACA There were Qs of fact/law that raised genuine issues for trial; should have proceeded w/o
deciding limitations issue o Possible that sep LP’s will arise w diff injuries arising from same event. o Ex: MVA (knew of phys injury); think you’re okay so go back to work but later realize you can’t
Economic injury might arise at diff time than physical injury (time of accident) fact specific
When Does Injury Warrant Bringing a Proceeding?
Mainstreet Development (sister cases – 2004, 2005) • Deficiencies led to water damage • Issue: what does it mean you “knew or ought to know that it warrants a proceeding”? • Need to compare gravity of the injury to economics of bringing the action look at obj and subj
o You notice the water on day 1 (little pool) – doesn’t seem worth suing for. Then over time it appears that it’s much larger and the balance has shifted – this is huge problem that is worth suing for.
Saver Plumbing (ABQB 2012) • Homeowner contracts w contractor for services • Oct 2008: O discovers leak and calls K’er and problem gets fixed. • Late Jan 2009: discover leak in shower area; O thinks he might be responsible but still contacts K’er • Late Feb 2009: after K’er’s insurer denies liability, O conducts tests and finds he was not responsible • Feb 11, 2011: O sues
o O argued (1) loss was not known/attributable to the K’er until he did the tests (arguing second part of the test); & (2) it didn’t warrant bringing proceeding until end of Feb 2009
o K’er argues (1) there should be constructive knowledge bc he had more than mere suspicion that it was attributable to K’er & should’ve done something sooner & (2) that the loss was large enough that even if K’er was only partly responsible, its responsibility was suff to warrant an action.
• Held: Not statute barred Actual/constructive knowledge that action should be brought requires the court to see what a RP would do (obj) and apply that std against what P actually did o Discovery O conducted testing Feb ‘09 to see if he had liability; that pt he suff knew that procs warranted
Meaning – “ought to have known”
• Reas diligence: perfect knowledge not req’d; at min, P req’d to make reas inquiries & follow up on any suspicions o Hill v Alberta At a min, P is req’d to follow up on any suspicious (where P should inquire, but didn’t)
• Note: always err on side of caution go with most cautious date
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• Test constructive knowledge arises where claimant has not perfectly discovered the claim but where a reas claimant w reas diligence in the circs would have discovered the claim (CNRL v Jensen Resources Ltd (ABCA))
Condo Building Case (from ABCA) • Claim brought May 2001 • Court held P knew building suffered from moisture problems & of potential sequence of events if problem not
fixed before May 1999. P did not have perfect knowledge but this not req. It was obvious there was a problem and damage and this was enough.
o 1st element: knowledge of injury started before May 1999 o 2nd element: court held search for Ds was suspended until P knew/ought to have known that injury
warranted bringing proceeding. o 3rd element: look at seriousness of injury P could have brought an action at end of Feb 1999 o Re identity of Ds it would’ve been reas for any party to be potentially resp and all of those names
were readily avail (knew who engineer was, who architect was etc). • Court satisfied on all elements that there was actual/const knowledge prior to May 1999 (action dismissed) • Appeal dism limitation D is better left to TJ on full ev provided through trial process record (fact driven)
Regarding Breach of Duty – s.3(3)
-‐ Other provisions in the act provide guidance re ultimate LP • 3(3) – for purps of determining ultimate LP
o (a) If it’s a continuing br or a series (something that keeps happening), then for ult LP you look at when the last act or omission occurs. (ex: if T supposed to pay LL for last 10mos, count from last mo)
o (b) Where claim is based on br of duty, then look to when br occurred. o (c) If suing based on demand obl (ex: promissory note or mortgage), clock will start when default in the
performance after the demand is made. (If no req for default, then just when the demand was made) o (d) Re Fatal Accidents Act – starts when conduct that caused the death occurs o (e) Claims for contributions (don’t worry about this for now) o (f) Claim to recover prop, clock will start when you lost poss
Examples • MVA on Jan 7, 2013 – generally, will have to sue w/in 2 years of accident (Jan 7, 2015)
o If other driver is unknown (hit & run) & don’t identify until Feb 20, 2013 but you know about injuries etc then have until Feb 20, 2015
o If don’t identify until Jan 2024 (more than 10 years after claim arose), even though it may be 2 years from discoverability, you would be out of time.
o *This is exactly how to deal with this on exam • July 7, 2012 – your boat is damaged bc somebody threw something wrongfully into the lake that wrecked it
o 2 yrs would start on July 7, 2012 if you identified the damage and if you knew who discarded it. o If you don’t have this knowledge right away, then it won’t start until you know there’s dam or who did it o If don’t have this knowledge after 10 years, then barred
EXCEPTIONS TO S.3
s 11 – Order/Judgement for Payment • Only applies where you've already obtained order or judgment for payment of money.
o If you need to sue on that order/judg then have to do so within 10 years.
s 4 – Concealment (Fraud) • LP suspended during any period of time that the D fraudulently conceals the fact that the injury for
which a remedial order is sought has occurred (very high bar intentionally hiding something) • Applies to both 2 and 10 year rules
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JN v Kozens (2004 ABCA) • P claims assault in high school in 1980/81; turned 18 in April 1981; Oct 15, 1983, she married the teacher • Said abuse continued until yr after they separated in Fall of 1986; divorced in 1987. • 1994 (10 years after assault), she approached head of personnel of school board complaining about him; Board
advised to confront the teacher and file a complaint; she sued teacher and Board May, 2001. • Summary trial Judge held 3(1)(a)(iii) had not been met bc P was not prepared to proceed with complaint • ACA
o She was not time barred this sit seems to only apply to abuse cases o Re whether the P was cognizant about who bore resp for the abuse she suffered:
Appreciation of the nature of the wrong done to P requires understanding D’s blameworthiness for the acts in Q. Absent this, P cannot be expected to appreciate that a proc against D was warranted.
o P’s ind circs were imp in determining whether she discovered the cause of action. Court found there was violent/manipulative rel – prevented her from reporting the abuse
earlier (led to believe it was all her fault) Must look at subj circs and apply the reas person
-‐ SCC: in some circs where the wrongdoer masks the wrongfulness of the conduct, it’ll be fraudulent concealment
s 5 – Persons Under Disability • The LP is suspended during any period of time that the claimant is a person under disability • May include: 1. Ppl with guardian/trusteeship order over them, or
2. Adult unable to make reas judgments in re of matters relating to a claim (pretty broad)
s 5.1 – Minors • The LP is suspended until minor turns 18
o Exception: if you know that minor has claim against you, you can start the clock ticking right away • Serve the public trustee’s office and the minor’s guardian that you want the clock to start right away
s 6 – Claims Added to a Proceeding • As long as a lawsuit is started (& the 3 reqs are met), even if a relevant LP has expired (ex: counter-‐
claims, 3P claims, amending the parties, etc), you can still add the claim you’re trying to add • Try and add the claim using regular process first (ex: amendment to pleadings)
o Only rely on s 6 if otherwise applicable LP to add that claim has expired Ex: P sued D for neg; P wants to add fraud first look at amendment of pleadings rule, if can’t
do it under this then go to s.6 • 3 reqs:
o 1. S.6(2) If the added claim does not add a new party, it must be related to the conduct, trans or events described in the orig pleadings in the proc
“related to” arising from the same facts (very broad) o 2. S.6(3) When the added claim adds/substitutes a claimant (P), or changes the capacity in which P sues,
(1) it must relate to the cond, trans or events described in the orig pleading in the proc, (2) D must receive suff knowledge of the added claim that D will not be prejudiced to maintaining a
defence to it on the merits (D must know about it w/in the 2yrs P had to bring it + service time), and (3) the court must be satisfied that the added claim is necessary/desirable Ex: D hits car; 4 ppl injured but only 3 sue; 4th later decides to sue P added & won’t prejudice D
o 3. S.6(4): When the added claim adds/substitutes a D, or changes the capacity in which D is sued, (1) it must relate to the cond, trans or events described in the orig pleading in the proc, and (2) D must receive suff knowledge of the added claim that D will not be prejudiced to maintaining a
defence to it on the merits (D must know about it w/in the 2yrs P had to bring it + service time), and Ex: P started claim and now wants to add new D but LP has passed look to s 6
Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman SA – amend vs add claim • Amendment = taking the same facts and loss and just characterizing them differently
o Particularizing something already in pleading or adding a cause of action to an existing party
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• Added claim = can be based on diff & distinct events giving rise to diff & distinct loss, when compared to allegations made & loss claimed in the filed pleadings.
o Ask yourself if you’re out of time to add the claim: If not, try and add the claim through an amendment using amendment rules If out of time, still try and make amendment but also go to s.6
• Only go to s.6 when: o 1. You’re truly adding a claim, and o 2. The LP for adding the claim has passed
The Crown (Alberta) v Raillink Canada Ltd – a changed party is an added claim • App to amend SOC after LP expiry; Cr wanted to substitute ‘Raillink Canada Ltd’ for ‘Raillink Ltd’ go to s.6(4) • Changed party is an added claim not nec to add new cause of action (new party is enough) • S.6(4)(a) bc everything arose out of the same fire, they meet the “relating to the conduct” test
Kydd v Abolarin • P sues dr/hospital re neg diagnosis and treatment bw Feb – Apr 2002; SOC filed Feb 2004 • May 2011 (9 yrs after neg), P applies to add estate of Dr. S (died 2005 and never party to the action); P only
aware of Dr. S’s neg after expert report in 2009 • Application heard by Master who allowed it; later affirmed on appeal • Q of fact as to when P acquires suff knowledge of material fact(s) to trigger running of LP must be
more than mere suspicion but absolute knowledge not req o P gained knowledge of claim on Dr. S in 2009 & app to amend brought in 2011 (w/in 2 yrs) thus DON’T
need to resort to s.6 o If P had knowledge before that, then go to s.6
If it wasn’t 2009, it would be when P received Dr. S’s chart in 2005 have 2 yrs + 1 yr for service, which brings us to 2008 (out of time)
s 7 – Agreement (aka tolling agreement/standstill agreement) • Both parties have agreed to extend/suspend the LP; must be:
o 1. In writing, o 2. Signed, and o 3. Expressly provide for extension/suspension of LP
• Cannot shorten a LP by agr but you can shorten it by statute o 1. Rule 3.15: Judicial Review must bring a JR action w/in 6 months of the date of the decision o 2. S.43 Builder's Lien Act 180 days from date of lien registration to file certificate of lis pendens o 3. Insurance Act if suing insurer for loss/dam to a car, you only have 1 yr to sue from date of accident
ss 8, 9 – Acknowledgment and Part Payment • Re claims for debt, if before expiry of the LP, the D makes a part payment or acknowledges the claim in a
signed letter to the P, it starts the clock all over again o Must occur before the LP expires o The new LP starts upon receipt of the part payment o Must be an accrued liquidated sum reasonably ascertainable (not damages)
***on exam, just identify the issue (may be somewhere between a debt and dams) • Acknowledgment (admitting the sum is due & unpaid)
o 1. Must be in writing (Ls must be careful; always use “w/o prej” & be clear that a debt isn’t due) o 2. Signed by person/agent (note: can be email (writing) w name at bottom (signed)) o Not relevant whether they have agreed to pay it o If claim is for principal + interest and you acknowledge one then it’s acknowledgment for both
• Part Payment o If you make PP and don’t say “this is not an acknowledgment…” etc then clock will restart
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CONFLICT OF LAWS – S.12
• S.12 – if lawsuit is in AB, then AB LP applies. But if the action is to be determined by another jur, and the limitation law provides shorter LP, the shorter period applies.
VENUE (ie. where are you going to bring the action?)
Rule 3.2 – must commence your action in the appropriate judicial centre
Rule 3.3 – how to determine appropriate judicial centre • Look to see where the closest judicial centre by road is to the AB residences/place of bus of all parties • If there is a bunch of parties in diff places you can pick on behalf of the P the appropriate judicial centre • If a party is a bus that has many locations in AB pick the office that had a conn w the matters in the suit • Notwithstanding these rules, the parties can agree on an appropriate judicial centre
Rule 3.5 – court can change jud centre • Court can order an action to transfer from one judicial centre to another (change of venue) • Can be done at the request of the parties or if the court is satisfied it’s reas to move the judicial centre
Siver v Siver – changing judicial centres test • P starts divorce matter in Edm & later wants to move it to Fort Mc; both P & D live in Fort Mc and both their
bus’s there too; action started in Edm bc both wanted to access collaborative law services there • Reason not irrational so action kept in Edm: D’s lawyer in Edm, P might be moving to St. Albert, etc • Test for transferring proceedings to another judicial centre:
o Whether it would be unreas for the matter to stay in the present judicial centre “Unreas” is an irrational decision w no logical grounding & not supported by any reasons that
can stand up to probing examination (very high bar)
WHO ARE THE PARTIES?
STYLE OF CAUSE
***Note: don’t use abbreviation on exam! (an estate is not a legal entity; would be a fatal error to use on exam) -‐ Can evolve over the lawsuit amending claims, 3P claims, counter-‐claims, etc -‐ Imp to get it correct at beginning:
• 1. Want to clearly know who is suing who • 2. Once LP passes, may be difficult to alter the parties (unless s.6 of the limitation act applies) • 3. Previously, a mistake was a nullity and end of lawsuit
o Now, it’s a curable irregularity mistakes are fixable & action is not a nullity (Stout Estate) • 4. If name incorrect, a judgment may be useless against the real target of lawsuit • 5. Party causing the amendment bears the financial consequences of the amendment
Parties broken down into 3 categories: • 1. Standard cases • 2. Exceptions so the general rule • 3. Anomalous cases
1. STANDARD CASES
A. Living Adult With Capacity
• Live, natural person, over the age of 17, of full capacity • Use “full first & last name”, w any aliases and use both names if they have changed their name
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• Written in full capitals • No titles (ex: Mrs, Ms, Mr, “III”, “jr”, etc) • Can use initial when matter deals w sexual crime (but not otherwise) • Use full names in divorces • Ex: MARSHALL BRUCE MATHERS, also known as “EMINEM” (or “carrying on bus as ‘EMINEM’”)
Self-‐Represented Litigants • May retain a lawyer for particular services (ie. file app of claim).
o In this case, the lawyer does not become the lawyer of record. • Cannot rep another entity (ex: corp) other than yourself; cannot self-rep your co
Rule 2.22 – ppl may rep themselves (lawyer not req’d)
Rule 2.23 – can have assistance when self rep • You can have assistance in court a friend can give quiet suggestions, take notes, support you, etc. • This assistance cannot violate the Legal Professions Act.
o When self-‐representing, nobody else can speak for you, you are representing yourself as a lawyer
B. The Crown
Don’t have to name the Minister unless you are suing them personally
Provincial Crown • Start with the Interpretation Act. No statute or regulation is binding on the Crown unless the statute
expressly says that it is. • Proceedings Against the Crown Act
o S.8: If you sue the Cr you shall do so in accordance w the ordinary rules governing that court o S.11: Production of Q’ing rules, apply to the Cr in the lawsuit as if the Cr were a corp. Except the
Cr can refuse to produce a doc or answer a Q on the grounds that doing so would be injurious to the public interest. (This exception is only applicable to the Cr, not ordinary parties)
o S.10: Cannot sue the Cr in provincial court o S.14: No jury trials o S.17: Cannot get order for injunction or specific perf against the Cr. Can only get order that is a
declaration of the party's rts o S.25: Cannot get execution or attachment order o S.23: Where you have a judgment for debt, interest is payable the same as if it were bw ord parties o S.12: In proc’s under this Act, the Cr is designated “Her Majesty the Queen in right of Alberta”.
Federal Crown • At CL the fed court is immune to the Rules of Court, unless subj to statute • S.23 Cr Liability & Proceedings Act: when D, Cr may be taken in the AG of Can or name of relevant agency
Canada Deposit Insurance Corp v Crisco • A Min is not an e/ee or the officer of the Cr. A Min will never examined unless they are designated to be the rep
C. Municipalities and the Police
-‐ City “The City of Edmonton” as P or D -‐ Police name of the existing police chief (often see ind officer’s names in the style of cause as well)
D. Corporations
-‐ Do corp name search/get corp info need full corp name (trade name is not a legal entity; but still incl as alias)
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-‐ If it is incorp’d elsewhere, can do a name search in that jur but should also do a search in AB as well. -‐ If a corporation is struck/dissolved:
• S.208 ABCA: can apply to the corp registry/court to have corp revived if < 5 years since dissolution • Practical considerations
o Company may be judgment proof so revival is moot o If corp has insurance though, reviving the corp might be wise as policy may be able to cover o May need to sue the dissolved company to obtain records o Might need to sue for indemnity reasons – to get the indemnity, have to sue the corp
• S.227 ABCA: Any prop that would have been avail to satisfy judgment remains avail to satisfy the judgment o Incls prop that may have been distributed to s/hs in liquidation but must trace the goods. To take
adv of s.227 the suit had to have been started before the co dissolved or w/in 2 yrs after dissolution -‐ s.295 ABCA: extra-prov corps need to be reg’d in AB to sue here (does not apply to corps that you are suing)
E. Proprietorships and Trade Names
Rule 2.5 – can sue/be sued in name of proprietorship or trade name • Can sue/be sued in the name of a sole proprietorship or trade name (of a sole proprietorship) • You may know who the O is and say "JOHN SMITH carrying on bus in the name of ‘SMITH’S AUTO’” • You can serve a notice on the sole propriet and they have to tell you the legal name of the person
carrying on the bus w/in 10 days (Must file SOC first)
F. Partnership
-‐ Not a legal entity
Rule 2.2 – how to sue partnership • To sue a partnership or on behalf of a partnership you have a choice:
o Name the partnership (incl all partners at the time), or o Name all the ind partners of that partnership (difficult if lots of partners)
Rule 2.3 – partner defending • If party intends to enforce a judgment/order personally against a p/er, party must serve the partner w
o (1)(a) The commencement doc, and o (1)(b) A notice stating that the person was a partner at a time specified in the notice.
• (2) The person served is presumed to have been a partner at the time specified in the notice unless the person defends the claim separately by denying that the person was a partner at the specified time.
• (3) An ind p/er whether or not served w a notice under this rule may defend the action sep from p/ship o So there can be a SOD on behalf of: (1) the entire p/ship, (2) each ind p/er, or (3) sub-‐groups of p/ers
Rule 2.4 – how to serve a partnership • Can serve a notice at the address of a p/ship office & they have to tell you the legal names to use w/in 10 days
2. EXCEPTIONS TO THE GENERAL RULE -‐ All of these have to do with lack of capacity, which can arise in several ways.
Rule 2.11 – ppl that require a litig rep • Litigation Representatives (LR) – req’d for:
o Inds under 18 yrs of age; o Inds declared to be a missing person under s.7 of the Public Trustee Act; o Adult who lacks capacity, as defined in the Adult Guardianship & Trusteeship Act, to make decisions; o Ind who’s a rep’d adult under AGTA in re of whom no person is appt’d to make a decision about a claim; o Estate w no personal representative or grant of probate
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Rule 2.12 – 3 types of litig reps • Automatic LRs (Rule 2.13) appointed by enactment – no specific steps req’d • Self-appointed LRs (Rule 2.14) person must apply to court w a form of aff
o Must state that he is personally liable for the costs (and other things 2.14(2)) • Court-appointed LRs (Rule 2.15, 2.16 or 2.21) court can appoint on variety of conds
o Ex: person is exempt from liability for costs or is compensated for costs and expenses
A. Deceased Persons
-‐ Person you are acting for or against is dead not a legal entity thus cannot sue/be sued -‐ Under CL, action died when person die now look to SOAA and FAA -‐ Do probate search
• If an executor/administrator has been appointed to the estate, use this name to sue/be sued o “JASON as Administrator in the Estate of JOHN, Deceased”
• If no one appointed, can have LRs (Rule 2.12): o 1. Canvas inds who may be close to the deceased at either:
1a. Get court to appoint one, or 1b. Self appointment (ask relative to stand in for purp of lawsuit)
o 2. Find a willing lawyer (if appt’d, they must retain counsel & make decisions about settlement, etc) o 3. Ask court to dispense of the req (rare)
-‐ Survival of Actions Act • Starting point when dealing with deceased persons • S.2: If someone dies & they had an action at time of death they still have an action (estate can cont it) • S.3: If a cause of action exists against a person & they die, the rt to cont it against them continues in estate • S.5: Person that died was the P only things person can actually recover are actual financial losses
o Ex: MVA when alive P has a claim for future loss of income (Duncan v Bradley). When P dies P no longer has that claim. Only thing estate can now recover is actual financial loss, such as past lost income or damages for pain/suffering bw the accident and death.
• S.5(2): Non-‐exhaustive list of damages not allowed: o punitive or exemplary damages; o damages for loss of expectation of life, pain and suffering, physical disfigurement or loss of amenities; o damages in relation to future earnings, incl dams for loss of earning capacity, ability to earn or
chance of future earnings. • S.8: In order to bring action for a dead person, it must be brought by the dead person's personal rep
o Determined on wills/estate law. When they bring this lawsuit, they bring it as if they are the P • S.9: Crown is bound by the Survival of Actions Act
-‐ Fatal Accidents Act • S.2: If someone dies as result of wrongful act and that person would’ve had a rt to sue if they were alive, the
rt to sue is still valid after the death of that person • S.3: Executor/administrator can bring action for the benefit of the spouse, AIP, parent, bro, sis of the deceased
o If there is no exec/admin, or there is one and they do not bring an action w/in a yr, those ppl who can bring an action may do so for their own benefit.
• S.4: When you have multiple parties listed under s.3, they must be in 1 action • S.5: If the wrongdoer dies, you can still sue the wrongdoer • S.6: In assessing damages in an action brought under this Act, there shall not be taken into acct a sum paid
or payable on the death of the deceased under a K of insurance • S.7: Damages that can be sought
o expenses incurred for care/well-being of the deceased bw time of injury and death; o travel/accommodation expenses in visiting deceased bw time of the injury and death; o expenses of the funeral & the disposal of the deceased; o fees for grief counselling
• S.8: Bereavement damages
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o Requires no ev of actual damages, but only avail to a spouse, child (not step-child) & parent o Amounts:
82K to spouse/AIP (Not awarded if were living sep from each other at the time of death) 82K to the parent(s) to be divided if action is brought for the benefit of both 49K to each child of deceased Olson case (ACA) Declared some of the age limits unCON and allowed g-‐parents to claim
o Note: an estate of someone who would’ve been entitled but died, cannot claim bereavement dams • If deceased is found to be contributory neg the resulting claims/damages will be reduced accordingly
Hints v Berry – ***possible exam Q!*** • Re nervous shock; wife and family pull off road in trailer; husband/kids outside – killed by car; she watches • Issue: no physical injury but can she claim psychological injury? • She has claim for her H & kids; various claims of the estates (for the kids); her own tort claim etc
o Need to make a list of who has what claim against who Style of cause for these ppl:
• 1. Identify person standing in for person lacking capacity & describe what they’re doing (ex: “JASON, LR of JOHN (a minor)”; or if guardian/trustee: “COBI, the guardian of JON”)
o for minors, typically parents appt’d as LR o public trustee only involved if nobody else is willing/able to do it
• 2. Rule 2.12 and following itemize claims and figure out which survive o Is this a stat claim under FAA? A personal tort claim? (psych injury in form of nervous shock) etc.
• If in AB, many claims taken care of by the estate in 1st yr after death (s.3 FAA). After that one year, then ppl can make claims in their own name (in add’n to the ones they would have in tort for their own injury)
B. Estate of the Dead
Not a legal entity thus cannot sue/be sued (must sue the executor/administrator/LR) – see above
C. Adults that Lack Capacity
• Capacity defined in s.1(d) of Adult Guardianship and Trusteeship Act o Capacity presumed unless proved otherwise
• Need someone to stand in on their behalf o If don’t have someone specified from the Act, then need to appoint LR (usually someone close to the
adult); as last resort, a public trustee might get involved. • Style of cause: name of person, a descr of capacity for which they are there (e.g. X, Guardian of Y) • Quiet Assistance for one person (power of attorney doesn’t trump the Legal Prof Act s.6 (L monopoly))
o Even though lawyers have monopoly, still open to ask court for rep by someone else less then full blown rep and contemplates both ppl there (v common; ex: son speaking for nervous mom)
Rangelander Holding Ltd v Calgary (City) – ind cannot rep co/skills test • Ind wanting to do full blown rep of a company (not a lawyer) but court denies him the right • Judge does a skills test (pg 76) want to ensure the corp being rep’d will not be harmed by the rep
Beacon Hill Service (2000) v Esso Petroleum Canada – lawyer can rep self, but not co he’s a W for • Issue: whether the lawyer could rep himself and also a company • He was a W as well; code of conduct prevents someone from being a W and advocate in the same case • Held: Court let the lawyer represent himself, but not another for whom he’ll being giving ev for
D. Minors
• Anybody younger than 18, and does not have the capacity to instruct counsel (Rule 2.11) • Typically parents are appt’d as LR; public trustee is not involved unless nobody else is willing/able to do it
o “JASON, Litigation Representative of JOHN (a Minor)” or “JASON, the Guardian of JOHN” etc o Guardian is liable for costs and responsible for enforcing court orders if the minor wins
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• LR is officer of the court; steps they take must be in minor’s best interest (can’t have conflict of int) • If a minor turns 18 at some point during the action they can begin acting for themselves
Champagne v Sidorsky – lawyers have monopoly for representing ppl in court • LR should retain a lawyer and not purport to personally rep the person they are standing in place of
lawyers have monopoly for representing ppl in court (s.6 Legal Professions Act) • Some ppl don’t want to be too involved in a lawsuit so they appoint a Power of Attorney – trying to
circumvent the bar against non-‐lawyers representing inds in court. o This case says this strategy does not work now set out in s.106 Legal Profession Act
C(L) v Alberta – strangers can be appt’d LR • A stranger can be appt’d as LR as long as they act in child's best interest (can be any interested party)
o Court has power to assess their suitability o Court has power to exempt the LR from liability for costs (but guardians acting as a LR are liable) o Who pays the costs for LR if court waives liability for stranger LR?
Public trustee can pay since ordinarily they would be the LR but can't bc of conflict of int • Note: initials can be used here: (1) trying to protect themselves and (2) shelter themselves from facts they
don’t want to get into public o Only allow initials if protection element involved (usually w minors); w adults, court must take into
consideration fact that courts are public forums (usually outweigh privacy concerns)
3. ANOMALOUS SITUATIONS
A. Trustee/Beneficiary
Rule 2.1 – can sue personal reps of estate or trustee • Can sue personal reps of the estate or a trustee, w/o naming any of the persons interested in the estate or trust • Trustee can sue on behalf of beneficiary w/o naming the beneficiary whatsoever • Does not have to be an actual trust doc, even a CL trust would be suitable
Rule 2.10 – court may grant app to grant person intervener status • Can apply for leave to intervene on court’s terms • Need to show that (1) you’re interested in the result and (2) have useful contribution to make
B. Representative Actions
Rule 2.6 • Not a class action but somebody suing in representative capacity for others w a common interest • We have a Class Proceedings Act that has for the most part eclipsed this rule, but still some residual
categories where it might be used o Ex: First Nations Band
Status of a band is nebulous; not quite a legal entity Band lawsuits styled as a representative action (bc not quite a legal entity) As P, name the chief on his own behalf and on behalf of the band
o Problem: some cases say you can sue in the band name but no specific rule deals w this situation
C. Class Proceedings
• An action brought by a "leader" on behalf of a whole bunch of other people • You still prepare and file a SOC • "Class leader" put on SOC; mention it’s a class action and "John Doe" is acting on behalf of others
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o Rule 13.11 it must incl “Brought under the Class Proceedings Act” immed below the listed parties Can do this before/after the certif is received; if not received, those words must be removed
• Then file the claim w the D; then make an app to the court w an aff to get the claim certified as a class action o Must make app for certification w/in 90 days after getting the SOD or once the D is in default. o If not certified then just regular lawsuit
• Rule 2.7 After certification order is given, a party may amend a pleading only w Court’s permission -‐ Limitation Periods (Part 5 of the Class Proceedings Act)
• When claim is filed, if you fall w/in this class, the LP w re to that lawsuit is suspended o Thus if it doesn’t get certified, then ppl can sue individually
SUMMARY 1. Don’t rely on index names as they appear in the materials (abbrev forms in reports etc) often incorrect 2. Mistakes in style of cause now treated as curable irregularity (no longer as harsh) 3. If something needs to be fixed and LP expired need to satisfy s.6 of Limitations Act 4. When you want to enforce judgment or collect proceeds, need the right names
• If wrong, any writs you file or enforcement steps may be useless
STATEMENT OF CLAIM VS ORIGINATING APPLICATION
Commencement of lawsuit • Starts w filing SOC/OA (note: every doc filed at courthouse will have action #) • SOC used in most jurs (doc you file that technically starts the lawsuit) • OA looks like a notice of motion; doc is shorter than SOC; accompanied w affidavit Statement of Claim: • SOC is what you use most often as it applies to much more claims • Describes parties, what you are suing for, & tells the court what you are seeking as a remedy • No affidavit req’d with initial filing • Date on which you appear before court depends on the process bc the parties go back and forth for awhile • Transcripts from depositions are not necessarily given to the court • Process
o 1. File SOC o 2. D’s need to file SOD o 3. 3P issues; counterclaims etc (all pleadings need to be filed) o 4. Doc discovery (exchange all relevant info) o 5. Oral discovery (questioning) o 6. Maybe participate in dispute resolution (no longer mandatory) o 7. Expert reports o 8. Trial (usually at least 2 years before trial)
• Advantages full discovery; full trial and time (longer is goes on more likely it will get resolved) • Disadvantages expensive and time consuming Originating Application: • Shorter and less detailed than SOC & not avail for all proceedings • Must file an affidavit (documented ev) • Sometimes referred to as "going first.” You have to show your hand first • You specify a date it will be heard (meant to be heard in Special Chambers). • No defence req’d; no doc discovery; no regular questioning; typically no trial • In Chambers, there is questioning on the affidavit and there might also be undertakings
o No oral ev is given in Special Chambers, it's all based on affidavit ev o D will usually file affidavits on their ev also & P will cross them on it
HOW DO YOU DECIDE?
-‐ How much client knows may determine which way you go if don’t know much, better to use SOC
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-‐ Need to determine which judicial centre to submit (parties usually agree on venue) -‐ If served w OA that is inappropriate, call the lawyer and see if it can be resolved
• If not, can apply under 3.2 to convert OA to SOC -‐ OA used most with (1) judicial review and (2) oppression actions (corp law)
Rule 3.2 – when OA is appropriate • When OA is appropriate: (if you don’t fit into 1 of these categories must use SOC)
o 1. No substantial factual dispute (most common) straightforward matter Ex: 2 parties enter into K and agree on validity/facts – want court to decide re breach
o 2. If no person to serve as defendant (v rare) o 3. If seeking judicial review o 4. Where you're suing or bringing action under statute and it requires an OA o 5. Where you're suing under statute and there is no specific procedure provided by that statute
- Dash Distributors Inc v Powlik if there is a substantial factual dispute, OA should be converted to SOC
Rules 3.26(1) – once SOC filed, have 1 yr to serve • Once you file a SOC, have 1 year to serve it on the D unless you get an extension • Interpretation Act governs in the case where the 1 year falls on a weekend or holiday
Rule 3.26(2) – can renew SOC for 3 months • Renewal of SOC only get it once and for 3 months (must get before SOC expires)
PLEADINGS
• Defined as essentially all the docs that frame the issue in the lawsuit (what the lawsuit is about) • Any doc that is setting out your position w re to the facts and your ultimate position • A lot of the tests & obls in the Rules of Court depend on your pleadings (v imp) • To determine what is relevant material, you need to look at the pleadings • Material facts in pleadings are allegations (not facts until court finds) • Permissible to plead in the alternative (para 1: I wasn’t there; para 2: if I was there, I didn’t do it; etc) • If any doubt re material facts, go to gen source mat (ex: Klar Torts: plead everything that supports your action) • Ex: negligence: MVA where A hits B
o “B suffered grievous bodily harm; caused by neg of A” not enough, need particulars “driving wo due care & attention; failing to apply brakes etc” (usually boilerplate)
Summary: material facts, harm suffered and measure of what you’re claiming
• Rule 13.6(1), (2) and Form 10 provides the skeleton
Rule 13.6(1) – succinct pleadings (but better to put in more) • (a) Pleading must be succinct
o But better to put in more than less (sue everybody for everything) bc there’re conseqs of leaving things out o Risk of putting too little: (1) possible struck out by 3.68 for being significantly defective; (2) if need to amend later to avoid surprise, person amending bears cost (can be sig)
o Caveat: if you put large amt for damages in SOC and you lose, this amt will affect costs awarded! • (b) Must be divided into consecutively numbered paragraphs, w dates and #s expressed in numerals unless
words or a combination of words and numerals makes the meaning clearer.
Rule 13.6(2) – what must be in the pleadings (facts, defences, remedies) • Supposed to plead facts not ev
o Pleadings are not argument but can have persuasive force (don’t cite cases) • Pleading has to state any relevant matter that defeats, or raises a defence to, a claim of another party
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• Your pleading must state what your remedy is (ie. general damages, special damages). o If they are not quantifiable at the time then give an estimate (will not necessarily bind you) o Stating damages is relevant to cost determination o You also have to state whether you are claiming interest
Rule 13.6(3) – claims that you must state in pleadings • If you are going to rely on a provision in legislation or any of the following, than you must state it
o Some facts can give rise to diff types of claims which may have diff defences (avoid surprise) • breach of trust* • duress • estoppel • fraud* • waiver • malice or ill will • misrepresentation* • payment • performance • release • undue influence* • wilful default* • voluntary assumption
of risk • lack of capacity or
authority • a provision of an
enactment • tender of payment
• a limitation period • illegality or invalidity of a K, including the grounds
Rule 13.7 – claims you must give particulars for • A pleading must give particulars of any of the following matters that are included in the pleading:
o breach of trust; fraud; misrepresentation; wilful default; undue influence; defamation (you have to in your pleading use the actual defamatory words)
Rule 13.6(4) – D must say if he’s going to raise ev on P’s reputation • If D is going to produce ev about P’s reputation in mitigation of damages (ie. hasn’t suffered dams from
defamation), D must include in a pleading the facts on which D intends to rely
Rule 13.8 – other things that may be incl’d in pleadings • Things that can be included in a pleading
o alternative claims or defences o a st of a point of law, and if so, the facts that make the point of law applicable; o a matter that arose after the commencement doc was filed.
Rule 13.10 – replies to st’s of defence • In a reply to: (1) A SOD, (2) a SOD to a counterclaim, or (3) a SOD to a 3P claim • The reply may only make admissions or respond to matters raised for the first time in the SOD
Rule 13.12 – silence is not admission • Silence is not an admission. If you don’t specifically state something, it’s assumed that you are denying the fact
Lax Kw’alaams Indian Band v AG Canada -‐ re pleadings • 1. Over course of lengthy lawsuit, the perspective will change as ev is introduced (claim evolves)
o What you’re looking for at end of day may not be same as in the beginning • 2. D must be left in no doubt about what precisely is claimed
o We need to know the issues bw the parties o If the view at end is diff enough from beg, then you should amend o It’s the pleadings that give court reference to give remedy so if evolution of lawsuit is significant, then
best to amend the pleadings to conform to the changes
Rodaro v Royal Bank of Canada • TJ found for P on a ground that was legally sound even though wasn’t raised factually (not pleaded) • ONCA: Overturned TJ fundamental to litig process that lawsuits be decided w/in boundaries of the pleadings • Need to know what is dealt w bc res judicata may be considered after the decision.
o If somebody tries to sue again for something that has been dealt with prior, we go to the pleadings
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• Note: this is an extreme ex Usually if there is a basis for liability but defects in pleadings, CA will overturn the TJ & allow the P to amend. The lawsuit will then return to stage where parties can settle or go to trial.
• Problem: costs to amend borne by party that has to amend (so P may get second chance but costs a lot) • In AB: ABCA would reference s.8 of Judicature Act court must give every legal & equitable remedy properly
brought by the parties in the proceeding. (Rationale: completely determine matters so no multiple proc’s)
SERVICE
-‐ Perfection of action via service v imp have 1 yr from filing date to serve (un-served SOC is dead) (3.26) o This 1 year period can be renewed for 3 months (Rule 3.26(2))
-‐ Serving SOC gives other side notice of claim – D’s option: o 1. Do nothing If D defaults, P can go straight to judgment (D aut loses admitted the allegations) o 2. Challenge the P’s choice of jur Usually lost if D does something to acknowledge the jur o 3. Defend, demand notice, counterclaim, bring others into lawsuit (via 3P proceedings)
-‐ For OA, most of the same things apply o Service nec to perfect the process to secure the D’s attendance in court (fixed date appearance) o Choices: (1) do nothing ; (2) file ev in response (via affidavit); & (3) attend court/argue
-‐ Process: • Draft doc (ex: SOC) using approp form; make several copies; take to courthouse where clerk will stamp and
file; they keep original and give you copes ($200) o Once filed, it’s a public doc & can be searched but content is privileged from defamation lawsuits
(want ppl to be blunt when drafting SOC) • Filing starts clock for service (1 yr from this date to serve)
-‐ Types of service:
• 1. Personal notice Starting pt for service of commencing doc o Physically giving doc to person (usually done via process server); must be true copy of the orig
(don’t have to read to the recipient) • 2. Recorded mail Postal service can track and see if it’s been signed (must be acknowledge in writing)
o Problems: 1. Can’t be 100% sure person has been served 2. Reqs home delivery (ex: PO boxes are useless – needs to be signed)
o Interpretation Act: if sent by non-‐recorded mail (if permissible), service accomplished 7 days after it’s mailed w/in province and 14 days outside or when receipt is acknowledged
Categories of Service: • 1. Commencement doc (CD) [SOC or OA] Reqs higher order of notice than #2 • 2. Non-Commencement docs (docs after action started) (ex: SOD, offers, notice, etc)
o Service is official form of communication bw parties • Note: both sides have address for service (on SOC/SOD)
o Onus on party for correctness; service is good if served to that address
McGillis v Hirtle • Service does 2 things: (1) perfects the action and (2) allows court to assume jur
o In this case, D was passing through jur and court said it’s okay to serve him
INTRODUCTION
Rule 2.30 – if lawyers change, must serve new lawyer • After a L/firm of Ls ceases to be a L of record (LoR), no del of a pleading, affidavit, notice or doc relating to the
action is effective service on the former LoR or at any address for service previously provided by the former LoR
Rule 11.1 – CD must be served accrd to Rules/statute • Subject to a statute a CD must be served in accordance w the method provided by statute or the Rules
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Rule 11.3 – can serve according to parties’ K (or by rules) • Parties to lawsuit may already have a K stating how service can be accomplished (ex: faxing)
o Can either follow contract OR serve according to the Rules
COMMENCEMENT DOCUMENTS
-‐ Part 11 of Rules – what type of litigant being served? Ind? Corp? Pick appropriate rule below and follow • Exceptions: 1. Method of service not specifically contemplated by Rules
2. Service ex juris -‐ Court involvement usually not req’d but things come up (usually for CD) see “Court Involvement” below
Individuals
Rule 11.5 – must effect personal service on inds • If suing an ind, you have to effect personal service hand del or by recorded mail addressed to that ind
o Recorded Mail: delivery by mail/courier in which receipt of doc must be acknowledged in writing • Best method is to use process server • Ev of serving the D may be req’d in the affidavit if the D denies receiving notice
Party’s Lawyer
Rule 11.16 – Lawyers can accept service in writing • Lawyer may in writing accept service on behalf of the person • Should as a matter of courtesy talk to the lawyer to determine if they can receive the service • Problem: lawyers usually not retained until after lawsuit started
Litigation Representative
Rule 11.7 – serve litigation reps in the same method as inds
Rule 2.12(2) – if and ind has a litig rep, you must serve the litig rep (not the ind)
Self-‐Represented Litigant
Rule 11.18 – self-‐rep’d litigant can accept, in writing, service of a CD
Corporation
- s.256 CBCA • Serving a corp: do a corp search & determine the reg’d office & send either by reg’d mail or process courier • Often the reg’d office is not that actual corp address, it is the lawyer's office. L then forwards it to the client • Some corps who do not have offices in Canada may have an attorney for service, you can send it to them
Rule 11.9 – serving corp • You can serve a corp by leaving the docs:
o w an officer of the corp who appears to have mgmt/control responsibilities w re to the corp, or o w an ind who appears to have mgmt/control resps w re to the corp at its principal place of bus or
activity in AB, or at the corp’s place of bus or activity in AB where the claim arose • Or can send by recorded mail, addressed to corp, to the principal place of bus or activity in AB of the corp
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Rule 11.13 – corp w trade name • If co has trade name Can send to reg’d office of the co behind the trade name or the bus office of trade name
Trade Names of a Sole Proprietorship
Rule 11.12 – claim against single ind carrying on bus under a trade name • Can use method of service on ind behind the trade name and can also serve person who has mgmt of the bus
Partnership
Rule 11.10 – service on limited p/ships • When serving a ltd p/ship you can leave it w a gen partner or w an ind who appears to have mgmt/control of
the ltd p/ship at the principal place of bus • If the gen partner is a corp then serve it like you would a corp • If the gen partner is an ind then serve like any ind • You can also send by recorded mail addressed to the ltd partnership
Rule 11.11 – service on p/ships (other than ltd p/ships) • 3 ways to serve a regular partnership
o Serve any ind partner o Personally serve on ind who appears to have mgmt or control duties o By recorded mail addressed to the p/ship at the principal place of bus
Statutory and Other Entities (ex: RCMP, WCB)
Rule 11.14 • Can leave SOC w: (1) officer of the entity; (2) ind who appears to have mgmt/control responsibilities; or (3)
by recorded mail addressed to the place of bus in AB
Business Representative of Absent Party
Rule 11.19 • A CD may be served on a party who is out of AB but who has a representative who resides and carries on the
absent party’s business in AB, if the claim arose in re of that bus (leave w rep or send recorded mail to rep)
NON-‐COMMENCEMENT DOCUMENTS
-‐ Once CD served, Rules 11.15 and 11.16 kick in • Can serve everything personally but not nec (once action started, can rely on address)
-‐ If lawyer w/draws, L must serve client & other side to provide last known address by which party can be reached
Rule 11.15 – can serve to address provided on CD
Rule 11.16 – can serve to lawyer on record
Rule 11.20 – you can still serve according to the rules of commencement documents
Rule 11.21 – can serve by electronic method (usually to lawyer) • Can also serve by electronic method, which is most common and often done to the lawyer
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• May be served by electronic method on a person who has specifically provided an address to which info or data in re of an action may be transmitted, if the doc is sent to the person at the specified address, and: o The electronic agent receiving doc at address receives doc in a form that is usable for subseq reference, & o The sending electronic agent obtains/receives a confirmation that the transmission to the address of the person to be served was successfully completed.
Rule 11.22 – serving via recorded mail • Recorded mail serve it at the address for service provided in the most recently filed doc in the action • Service is effected under this rule on the earlier of (a) date receipt is signed & (b) 7d after rec’d mail is sent
FORECLOSURE ACTIONS
Rule 11.23 – 11.24 – in re of foreclosure actions • You can serve non-‐CD’s the way you normally would. But also you can leave the docs at the address subj to
the foreclosure, or send by recorded mail to that address
COURT INVOLVEMENT
-‐ Court involvement usually not req’d but things come up (this is usually for CD’s) • Ex: emailed someone notice & they responded; technically not service, but can apply to court to say it’s ok • Ex: person moves and no new address
-‐ Need court order to allow you to complete service in a diff way options: • 1. Substitutional service • 2. Validating service • 3. Dispensing with service
SUBSTITUTIONAL SERVICE
Rule 11.28 • If service inside/outside AB is impractical, the Court may, on app, make an order for substitutional service
o Ex parte chambers app for substitutional service o Ex: email, facebook (PM: ‘SOC against you & to contact L’), news ad, post on door, leave it w an adult
• Affidavit should describe: o 1. How the service is impractical o 2. What the alternative method is and how it will be effective o 3. When service will be effective (when notice likely to happen)
Purpose re when the clock starts for a response Ex: email – might say service effected 1 day after emailed (but door posting may be 5 days)
• Usually the Master will then give more than the usual 20 days response time • When the doc is served you also have to attach the order saying that it is an effective alternative
McGillis v Hirtle • D applied to have substitution order set aside • The method used was an adv in newspaper – Master set it aside bc there was no ev that D lived in Edm • P must demonstrate that D would be or is aware of the action, which incls demonstrating that D lives there
VALIDATING SERVICE
Rule 11.27 • P serves the doc and then gets an order after the fact from the court stating that "it was okay" to do that
o Court must be satisfied that the method of service used brought/likely brought the doc to D’s attn
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-‐ Purpose of service is notice so even if you come up w method not in Rules, as long as you achieve the goal it should be okay (ex: leave it w spouse who promises to give it to D) -‐ If D knows the Rules and avoids service, then next step is to let D know that service has been validated
• Provide order via mail – usually states that D has 20 days from deemed receipt to file SOD (7d in AB/14d out) -‐ Can’t validate service ex juris out of country bc need court permission to serve ahead of time (use Rule 11.28) -‐ Can validate service after 1 year SOC expiry date
• Ex: if served w/in the 1yr time per after filing SOC, can go to court after 1yr up & ask for validation of service
DISPENSING WITH SERVICE
Rule 11.29 • If service of doc via Rules is impractical/impossible, the court can make an order dispensing the service req • Must show (in affidavit):
o 1. You have done all reas efforts to serve the doc and that there is no other method avail, and o 2. That there is no/little likelihood that the issue will be disputed
• Very difficult to get such an order; rarely given
SETTING ASIDE SERVICE
Rule 11.31 • (1) A D may apply to the Court to set aside
o (a) service of a CD, o (b) an order for substitutional service of a CD, or o (c) an order dispensing with service of a CD
only before the D files a SOD or a demand for notice. • (2) An app under this rule is not an acknowledgment by D that the Court has jur w re to a claim,
counterclaim or 3P claim in re of which the app is filed • (3) If the Court is satisfied that
o the addressee did not receive a doc, other than a CD, sent by recorded mail w/in 7 days after the date on which the recorded mail was sent,
o the failure of the addressee to receive the doc is not attributable to the addressee’s own efforts to avoid receiving the doc, and
o the addressee would be prejudiced by the app of rule 11.22(2) (service by recorded mail rule), the Court may make any order that the Court considers approp in re of any matter relating to the doc, including setting aside service.
SERVICE EX JURIS
Note: response times for SOC • 1. Within AB 20 days • 2. Outside AB but in Canada 1 month • 3. Outside Canada 2 months
Rule 11.25 – how to serve outside AB but in Canada & outside Canada • (1) A commencement doc may be served outside Alberta and in Canada only if
o (a) A real and sub conn exists bw AB and the facts on which a claim in the action is based, and o (b) The CD discloses the facts in support & specifically refers to the grounds for service of the doc
outside AB and in Canada if reqs satisfied, don’t need leave of the court to serve
• (2) A commencement doc may be served outside Canada only if o (a) A real and sub conn exists bw AB & the facts on which a claim in an action is based and the CD is
accompanied w a doc that sets out the grounds for service of the doc outside Canada,
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o (b) The Court, on app supported by an aff, permits service outside Canada, and o (c) The party is also served w copy of the order permitting this
(3) Factors re “real and substantial conn” (rebuttable presumption) • (a) The claim relates to land in AB • (b) The claim relates to a K or alleged K made, performed or br’d in AB • (c) The claim is governed by the law of AB • (d) The claim relates to a tort committed in AB • (e) The claim relates to the enforcement of a security against prop other than land by the sale, poss or recovery of the prop in AB
• (f) The claim relates to an injunction in which a person is to do or to refrain from doing something in AB • (g) The defendant is resident in AB • (h) The claim relates to the administration of an estate & the deceased died while ordinarily resident in AB • (i) D, although outside AB, is a nec or proper party to the action brought against another person who was served in AB
• (j) The claim is brought against a trustee in relation to the carrying out of a trust in any of the following circs: o (i) The trust assets incl immovable/movable prop in AB and relief claimed is only as to that prop o (ii) The trustee is ordinarily resident in AB o (iii) The administration of the trust is principally carried on in AB o (iv) By the express terms of a trust document, the trust is governed by the law of AB
• (k) The action relates to a br of an equitable duty in AB
Rule 11.26 • (1) Unless Court otherwise orders, if a doc may be served outside AB under these rules, the doc must be served
o (a) By a method provided by these rules for service of the doc in AB, o (b) In accordance w a method of service of docs under the Hague Convention, or o (c) In accordance w the law of the jur in which the person to be served is located.
Club Resorts Ltd v Van Breta • Set out presumptive connective factors to jur; To convince court it should take jur, look to this case & 11.25(3)
RENEWAL (OF SERVICE PERIOD)
2 ways to get renewal: • 1. Rule 3.26 court app w/in the 1 yr period to extend for 3 months • 2. Rule 3.27 court app for renewal outside 1 year period (special circs)
Rule 3.26 – app w/in 1 yr • If you do not serve SOC w/in 1 yr you lose the claim • Can get a renewal though, but only once and for 3 months must get it before the SOC expires
Wardill v Peebles • 6 Ds; 1 was granted an order of renewal for substitutional service given more time to track down • The threshold for applying for renewal is fairly low
o Need some ev in support of app – some explanation for not having served it w/in 1 yr o Master Laycock (another case): purp of renewal is not for delay, need some legit excuse
Rule 3.27 – app outside 1 yr • (1) At any time the court can grant extension in (very special) certain circs:
o (a) If D has caused the P or P’s lawyer to reasonably believe and to rely on the belief that (i) D has been served, (ii) liability is not or will not be contested, or (iii) a time limit or any time per relating to the action will not be relied on or will be waived;
o (b) if an order for sub service, an order dispensing w service, or an order validating service is set aside;
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o (c) Special or extraordinary circs exist resulting solely from the D’s conduct or from the conduct of a person who is not a party to the action.
-‐ Practically the test is of fairness would it not be fair to prevent the P from serving the SOC in the circs? -‐ Ex: lawyer reasonably thinks liability will not be contested
• MVA – L filed SOC, round up all medical info etc and sends all to insurer; lawyer expects case to settle so he does nothing; 1 yr then goes by; L now needs an extension or other side can dismiss
• L needs to swear to subj belief that liability wasn’t being contested and formal action not req’d
Makar v Luedey • D didn’t get notice until 2 months after renewal had expired (17 months after SOC filed) • Insurer knew about it and Master found no prejudice • One of few circs where 3.27 used to serve the SOC again
Rule 3.28 – if 3.26/3.27 don’t apply, action dead • If a SOC is not served on a D w/in the time or extended time for service,
o (a) No further proceeding may be taken in the action against a D who was not served in time, and o (b) A SOC served on any D in time is unaffected by the failure to serve any other D in time.
JOINDER OF CLAIMS AND PARTIES
ADDITION OR SUBSTITUTION AFTER EXPIRY OF LIMITATION
-‐ Concerns s.6 Limitations Act (see page 6)
The Crown (Alberta) v Railink Canada Ltd; Stout Estate v Golinoswski Estate • When you are trying to add a party after expiry of LP you look at the Limitations Act not CL
o After doing the s.3 analysis, if it looks like your LP has expired, go to the s. dealing with knowledge • When adding a claim, irrespective of the LP, you can do so if it:
o 1. Relates to the same conduct of the orig claim o 2. D you are trying to add now, gains suff knowledge of that claim
PARTIES ADDED ON OWN MOTION/INTERVENORS
-‐ Someone who is not a party to an action but wants to be -‐ Courts do have the inherent power to let a non-‐party intervene in an action -‐ Charter cases are the common cases where you see interveners being allowed
Rule 2.10 – allows court to grant intervener status • On app, a Court may grant status to a person to intervene in an action subj to any terms and conds & w the rts
and privileges specified by the Court • Old CL rules re interveners continue to apply
University of Alberta v Alberta (Information and Privacy Commissioner) • Test to determine whether a party should be given intervener status (2 steps):
o A. Court will determine the subj matter of proceeding o B. Determine the intervener's interest in that subj matter which looks at 3 things:
1. Will the intervener be especially affected by issue facing court 2. Does the intervener have special expertise or insight to bring 3. Does the intervener have interests that might not be protected by the main parties
-‐ Note: in appellate matters, interveners are stuck w the issues raised at the first instance
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AMENDMENT OF CLAIMS
-‐ Amendments any time you need to change a filed doc -‐ Practical pts:
• Need to take original copy and make changes on the computer copy (keep track of changes) o If remove entire para put < or > in the para to let ppl know there used to be a para o If adding a word or deleting a sentance underline in red
• If you want to make amendments, call the other lawyer to let them know. If they consent, you can amend by consent need to write “amended by consent” and have both lawyers sign
o If time has passed allowing for free amendment, then need a court order You can amend:
• Any number of times w/o consent/order before pleadings close (Rule 3.62) • Anytime w/ consent of opposing counsel (Rule 3.62) • In response to an amended pleading (Rule 3.62) • After pleadings close (Manson test is applied to both sits below)
o To deal with parties -‐ Court Order (Rules 3.62 + 3.74) o To deal with other amendments -‐ Court Order (Rules 3.62 + 3.65)
• You have 10 days to file a reply from the date you received a SOD (Rule 3.33) o If no reply is filed after 10 days then pleadings are considered closed
• Any time you amend you have to provide the amendment to all parties (3.62)
Rule 3.62 – allows you to amend your pleadings • (1)(a): Can amend pleadings as many times & w/o anyone's permission as long as pleadings haven’t closed • (1)(c): Can always amend with the consent of all other parties
o (2) an amended pleading must be filed and served on each party w/in 10 days after it is filed • (3): Can always amend w/o anyone's permission if you are replying to someone else's amendment.
o (4): a response pleading in (3) must be filed and served on the other parties w/in 10 days after the date that the amended pleading referred to in (3) is served
• (5): If you do not make a change to your pleadings in response then it's assumed you are relying on the most current version of your pleading to defend the amended copy you received
• Ex: if P amends SOC, then D can amend SOD in reply; If D chooses not to then assumed h’s relying on orig D
Rule 3.65 – amendments not related to a party; court has authority to allow amendments • Gives court authority to allow you to make amendments after (or before) pleadings close • 3.65 doesn’t apply to an amendment to a pleading in re to a party covered under Rule 3.74
Rule 3.66 – cost assoc w the amendment borne by the party wanting the amendment
Rule 3.67 – when pleadings close • Pleadings close when a reply is filed & served by the P, or the time for filing and serving a reply
expires, whichever is earlier • Rule 3.33 A P has to file and serve a reply within 10 days after receiving the SOD
o Thus, if there has been no defence filed, pleadings are not closed (usually pleading close quickly) • Note: Court can disallow unilateral amended pleadings (ex: those made before pleadings close) or where
the clerk allows ppl to file when they are not allowed to (ex: clearly out of time) o If you make an amendment as of right (ex: w consent of other side) then you’ll only get it struck if
you did something improper
Rule 3.74 – amendment re a party (adding, removing, substituting) after pleadings close • After pleadings close, no person may be added, removed, or substituted as a party to an action unless… • If you are doing any amendments w re to a party (adding, removing, or substituting), after pleadings close,
you need a court order to amend
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• The following are req’d: o 1. App must be made by a party (if the person to be added/sub’d is a new P, app must incl their consent) o 2. Court must be satisfied that an order should be made o 3. Must be no prejudice that can’t be remedied by allowing the amendment
• All old common law rules apply
Manson Insulation Products Ltd v Crossroads C & I Distributors • Amendments are discretionary • Classic rule any pleading can (not will) be amended at any time (never too late) • Subject to 4 exceptions:
o 1. If amendment would cause serious prejudice to other side & the prej is not compensable w costs Ex: an amendment being sought requires ev from party that is now dead
o 2. If the amendment requested is hopeless Fairly high std; must show that if they put that in an orig pleading you could’ve had it struck Ex: adding claim that would be clearly statute barred
o 3. Adding a party or new cause of action after the expiry of the LP o 4. Some element of bad faith assoc w failure to plead the amendment in first place
Ex: sitting on a claim that you should’ve brought in the first place
Rago Millwork v D Woodhouse Construction • If seeking an amendment you have to be very specific as to the amendment you are making • Make the amendments & attach doc as a schedule to app (set out exactly what amendments you want)
Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman SA • Recites CL test for getting amendments (still applies under new rules) • Granting amendment is discretionary, which means those orders are tough to appeal
EVIDENCE ON AN AFFIDAVIT
If its a trivial amendment, don’t req any ev (ie. aff); if not trivial, req ev but not a lot (ex pleading new cause of action) • Canadian Natural Resources Ltd v Arcelormittal
o Even where ev is req’d, the std is low can use hearsay ev o Test: must show some ev that substantiates the facts the applicant now wants to plead
if court looks at all the ev and it’s clear it’ll fail then amendment will not be allowed • Ex: if you’re acting for the D who’s an engineer
o Engineer obtained to do reconstruction work on condo & there was a fire. It was clear in the report that the engineer needed to review the drawings before anything was installed.
o D is sued by O’s insurer. D says he never got any drawings (& doesn’t know much more). P now gives D the drawings, which D didn’t have before. D now want to bring in 3P who did the drawings but D is passed the 6 mos to bring 3P in (3P notice LP). So, D must file aff ev swearing he never had these drawings, & he received the drawings on this date & then we noticed there was an issue.
o This is all D have to say to bring in the 3P.
Gendreau case • P convicted of sex assault & unlawful confinement; P then sues the Crown/DOJ for malicious prosecution • D applied to strike the claim on grounds that the SOC didn’t plead certain elements to make out the cause of
action; P then applies to amend the errors (to avoid the strike) but instead he focuses on the steps taken by the prosecutor in the crim case
o D argues this amendment is improper bc it’s not a claim recognized in CL • Court held such a claim may be possible (it’s not hopeless).
o But, also held it didn’t contain suff particulars to provide context – app wasn’t supported by suff ev o Recognized std was low but will be higher when amendment seeks fraud/malicious conduct
• App was not dismissed nor allowed had to go back & revise amendment and come back w ev
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JOINING AND SEPARATING CLAIMS AND PARTIES
Rule 3.69 – can have 2 or more claims in 1 lawsuit, unless court orders otherwise • If 2+ Ds in an action, not all matters must relate to each D & not all remedies must be sought against each D
Rule 3.70 – parties can join to bring an action • (1) 2+ parties may join to bring an action against 2+ ppl as Ds if:
o (a) the claim arises out of the same trans or occurrence or series of trans’s or occurrences, o (b) a Q of law or fact common to the parties is likely to arise, or o (c) the Court permits
Rule 3.71 – can separate claims where there has been a joinder of Ds • (1) Court can separate claims if the joined claims or parties, or both may:
o (a) unduly complicate or delay the action or (b) cause undue prejudice to a party
Rule 3.72 – consolidation of claims • (1) Consolidation Court may order one or more of the following
o (a) Full Consolidation: Take the 2 lawsuits, combine them and create a new action number entirely o (b) Partial Consolidation: Have each lawsuit tried together or heard one after another by the same
judge. But each lawsuit maintains its own action number so they are still technically separate o (c) Stay: Lawsuit 1 stays dormant until lawsuit number 2 is done o (d) Counterclaim: the claim is asserted as a counterclaim in another action
• Court has inherent jurisdiction under s.8 Judicature Act (court has power over the process)
Scheidl v Southam Inc • If there are common Q’s of fact and law, they should be tried at the same time; however if the circs of
the parties are so diff that it would lead to prejudice, then the cases should not be consolidated • If consolidation orders can’t be granted, the two actions can be tried simultaneously (discretionary)
-‐ Purp of consolidation: to save expense, avoid multiplicity of proc’s, & to avoid inconsistent verdict
REQUEST FOR PARTICULARS
-‐ Arises when you get a SOC or Counterclaim • When you get a claim and there is not enough info avail to you • Formal process involves serving the party w "Request for Particulars" form before filing SOD
-‐ Involves asking Qs about certain paras of the SOC (can’t ask Qs about everything in SOC) -‐ Ex: neg misrep – who was it made by, when etc
• If making a request: “w re to to para 2 where P alleges neg misrep…[set out Qs] -‐ Possible Responses other side may (1) give full response; (2) state they’re not req’d to give particulars for that; or (3) say that the answer is in the particular knowledge of the D
Rule 13.7 – causes of action where P must plead particulars • P must plead particulars for: br of trust, neg misrep, defamation, undue influence, wilful default & fraud • Usually a request for particulars is not issued unless it’s for one of the above
Rule 3.61 – allows parties to serve request for particulars • The other party has 10 days to file a response If after 10 days, you don’t receive an answer or it’s insuff,
then you can make an app to the court req’ing the party who served the pleading to provide the particulars • Notwithstanding a request for particulars your duties as a defendant still remain (IOW, need to file SOD)
o You can file an extension so that you can delay having to file a defence until you get particulars • When responding to the request carefully consider whether you have a duty to provide them
o Still a pleading so you do not need to provide ev
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Riske v Kittlitz • Typically particulars are only provided before pleadings close, but not an absolute rule
o RfP ordered after pleadings close (after SOD) only in special circs should file an affidavit and why you need particulars at this stage
o Also, if statements in SOC are vague & D later asks Qs in Q’ing, may be able to get RfP if anything was left after Q’ing was done (but not always successful)
• In this case, Court ordered P to provide D w particulars only after Q’ing had occurred
Tomkow v Oldale – court can postpone particulars until after doc productions/Q’ing
PROCEDURE ON DEFAULT
-‐ If your firm is reg’d office of client & receive a SOC: (1) send it to the co & ask if they want you to act for them & (2) write to P’s L & say you’re the reg’d office but haven’t been assigned the claim & ask if they can extend 20 days
-‐ 3 possible responses to SOC: • 1. SOD • 2. Demand for Notice • 3. No response (default) potential for default judgment
o Did not file defence when you were supposed to have a certain period of time to file defence o The timelines in 3.31 and 3.34 are subj to a court order and can be extended
TIMELINES
Rule 3.31 – timeline for filing & serving SOD • (3)(a): You must file & serve it w/in 20 days of being served SOC if you were served in AB • (3)(b): You have 1 month to file SOD if served w/in Canada • (3)(c): You have 2 months if served outside Canada
Rule 3.34 – timeline for filing a demand for notice • Same procedure as outlined in Rule 3.31
Rule 6.02(1) Code of Conduct – Ls should give reas extensions & responses to requests • Lawyer must be courteous and civil and act in good faith in the course of dealings • Lawyer should give reasonable extensions and responses to requests
Errors and Omission Bulletin • Notwithstanding the Code of Conduct, extensions are not automatic need to ask the other side • If you cannot get one from the other side then try and get a court order
DEFAULT JUDGMENT
Rule 3.36 • (1) If D has not filed SOD or demand for notice you can get judgment entered against D bc of their default • The ability to get a default judgment depends on the type of claim 2 processes:
o 1. Liquidated claims Get default judgment [3.36(1)(a) + 3.39] Indicate to clerk that there’s no defence & you have a liquidated claim clerk gives default J Rule 3.38 Suing for recovery of prop is like a liquidated demand (can get default J)
o 2. Unliquidated claims Noting in default (see below) [3.36(1)(b) + 3.37] After D is noted in default you have to get an assessment of your damages go to court, ex
parte, and prove your claim (w affidavit ev) • If simple morning Chambers; if complex afternoon Chambers
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If you have a claim w a combination of liq & unliq claims, the liq claims can still be done through process 1, but it may be easier to lump it in here w the unliq claims
Master in chambers cannot assess damages; have to go to a justice Rule 3.42 where D is active on the file, can’t note them in default
• (2) Cannot get default judgment if defendant has litigation representative
Rule 3.39 – judgment for debt or liquidated demand • Need to have a liquidated demand (includes interests + costs) • (2) Def of a liquidated demand:
o (a) 1. Specific sum payable under an express/implied K for the payment of money, including interest, that is not a penalty or unliq damages, where the amt claimed can be determined by:
the terms of the K, calculation only, or taking an acct bw the P & the D (can use records to figure out what’s owing)
o (b) 2. Specific sum of money whether or not in the nature of a penalty or damages, recoverable under an enactment that contains an express provision that the sum that is the subject of the claim may be recovered as a liq demand or as liq damages. (ie. penalty set by statute that is a liq demand)
LIQUIDATED CLAIMS Examples of liq claims:
• Straight debts are almost always liq claims. Anything else, there could be a risk it is not a liq claim • K for goods seller provides goods and buyer does not pay (the amt owed is the liq claim) • Purchase & sale agr for house & vendor doesn’t close. If all B wants back is the deposit then it’s a liq claim
o If it’s loss of bargain (to get same house but now need to pay more) unliq bc court must assess • Service K for 3-‐yr term & a set amt is agreed upon. K is cancelled before end of term. If you sue for the
monthly amts owed in the future, it is not nec a liq claim bc there might be a duty to mitigate. o But if you have unpaid past bills due, that would be a liq claim
Ex of not unliq claims: General damages for pain/suffering are not liq claims, most tort claims, loss of profits
Standard Oil Company of British Columbia Ltd v Wood • A liq demand is in the nature of a debt, ie. a specific sum of money due/payable under or by virtue of a K • Its amt must either be already ascertained or capable of being ascertained as a mere matter of arithmetic. • If the ascertainment of a sum of money, even though it be specified or named as a definite figure, requires
investigation beyond mere calculation, then the sum is not a 'debt/liq demand’, but constitutes 'damages.'
NOTING IN DEFAULT (aka “praecipe”)
Rule 3.37 – what judge can do • When you have noted them in default, you make app in court to have damages assessed • Must prove your claim to the court (How to prove a claim will be fact dependant; usually need an aff of ev) • (3) What court can do when they hear your app:
o (a) pronounce judgment o (b) make any necessary order o (c) direct a determination of damages o (d) adjourn the app and order add’l ev to be provided o (e) dismiss the claim or a part of it o (f) direct that the claim proceed to trial and that notice be served on every other D o (g) make a costs award in favour of the P
Rule 3.40 – when judgment is entered against some, but not all Ds • If J is entered against some but not all Ds, P may continue action in re of any D against whom J is not entered
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Rule 3.42 – can’t get default judgment if D is taking steps in regards to the claim • Can’t get default J or note D in default where D has filed an app to set aside service or where there is ev that
D has been active on the file (also can get DJ if D has taken out app to strike out claim for sig deficiencies)
SETTING ASIDE DEFAULT JUDGMENT
Rule 9.15(3) • Court can “set aside” (aka “open up”) or vary a default judgment on any terms it considers just.
o Where the judgement was entered before the 20 day deadline to file o Where it was entered by mistake o If default judgment has been entered for unliq claim o If default judgment was inadvertently entered for amount more than the claim o D has a reason for not defending
-‐ Must show 3 things to set aside default judgment (Palin v Duxbury): (by affidavit of ev) • 1. Show arguable ground of defence (not a very high bar what the defence is and some ev it’s arguable) • 2. Show that you didn’t deliberately let the default J go ahead but that you have some excuse for that default
o Ex: illness, tragedy insurance/lawyer inadvertence (but can’t say “I didn’t know it would go to def”) • 3. After learning about default J, you moved promptly to set it aside (or have a reason why it wasn’t prompt) • If these met, likely default judgment will be set aside BUT court still has broad discretion • If setting aside judgment is successful, P will be awarded throwaway costs for having to take the extra steps
-‐ As P’s lawyers, if contacted by other side be practical & reas & set aside the default judgment • Get D’s lawyer to draft a consent order setting aside the def j and for you to get your costs
o Should do this bc if you go to court, they’ll likely get the def j opened up anyways • If never contacted by D’s L, then after time expire P is free to get the def J (but if you know D’s L, call them) • If get contacted by the actual D (not the lawyer), the same rules would apply give them some time but
don’t have the same professional obl to follow up (like you would with a lawyer)
Rizzie v JH Lilley and Associates Ltd • Default judgment set aside due to irregularity • Rule 1.5 deals w irregularities and court has broad discretion to cure it so long as no prejudice is caused
PLEADINGS SUBSEQUENT TO STATEMENT OF CLAIM
-‐ 8 things a D can do after SOC is filed: (1a) nothing; (1b) D counsel can ask for more time; (2) D can apply to strike out a claim; (3) file a demand for notice; (4) defend; (5) defend & counterclaim; (6) defend & issue a notice of contribution; (7) defend & issue a 3P notice; (8) to reply
STATEMENTS OF DEFENCE
-‐ Most common action taken in response to a SOC • Serves to define issues in dispute • Do legal research before drafting so that you know the nec factual ingredients for the specific claim • Even if you expect to negotiate a settlement, a SOD should still be filed to avoid default judgment
-‐ Rules governing pleadings apply to SOD no stories, no ev, don’t say who W’s will be, don’t talk in 1st person, etc -‐ Under new rules, SODs of general denials are no longer accepted (CL v Alberta) Need substantive defence
• Certain causes of action must be specifically pleaded or you can’t rely on them later ex: estoppel, stating a limitations issue (ie. LP has expired), if pleading a spec statute, if a K is illegal/invalid, waiver
TYPES OF STATEMENT OF DEFENCES Admissions
• The D must admit allegations in the claim that are true, even if they entitle the P to a judgment.
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• Admissions are deemed to be true, you don’t need to prove these at trial (P & D have agreed these are true) Denials (must be proven at trial)
• Where the D denies the truth of an allegation, or states if they are uncertain about the truth of an allegation. Affirmative Defences
• A D may admit a fact from a SOC, but may provide further facts that, if true, may allow D to avoid the claim • May also be pleaded as alternative defences; It may be that the P contributed to and/or caused the accident.
Barcellona v Einarson – app to strike claim for delay • Application to strike the claim for delay (P has not moved matter along) • Aug/06 P serves SOC; Feb/10 SOD filed (but not properly served so P didn’t receive) • Sep/11 Application by D’s lawyer to dismiss (based on 5 yr delay rule) • A SOD materially advances an action filing the SOD advanced the action so the action was not struck
o BUT new rules don’t talk about separate delivery must now file and serve w/in 20 days (1 step) Therefore, step for filing a SOD isn’t complete until it’s served
• Note: the current “drop dead rule” (4.33) is if P hasn’t taken a step to materially advance an action in 3 yrs, it’s a mandatory dismissal of the claim
• Note: Inordinate Delay Dismissal Rule (4.31) if there has been an inordinate delay, court can dismiss claim (no time limit [can be less than 3yr rule]; totally discretionary)
DEMAND FOR NOTICE
Rule 3.34 – demand for notice by D -‐ (1) If D files a DFN, the demand must be in Form 13 (says D demands notice of any app/proc in this action) -‐ (4) If D files & serves a DFN, D must be served w notice of any app/proceeding in which D is named as respondent
• Can participate & attend apps, but D does not have a rt to contest liability can only speak to damages -‐ (3) Applicable timeline for filing & serving DFN same that apply to SOD apply here (see Rule 3.31, pg 27) -‐ (5) Once you file a demand for notice, you cannot file a SOD unless you later apply to the court
• Test to overturn a demand for notice [Bell]: o 1. Arguable ground of defence? (a good defence on the merits) o 2. Was not filing SOD unintentional? o 3. App to w/draw demand for notice & submit SOD brought as soon as possible?
Bell v Grande Mountain Apartments • Demand for notice is like a partially defended action • D can cross on damages and give ev themselves on damages • 9 months in this case (bw DFN & SOD) was not prompt
COUNTERCLAIM
-‐ You can have set-‐off applied w/o having a counterclaim (CC), but, if you want more money back then you have to file a CC at the same time as your SOD (SOD & CC are separate docs) -‐ CC is its own action but still under the main action #; resolving main action does not auto resolve the CC
Rule 3.56 – D’s right to counterclaim • Allows CC to be filed against the P or the P and other persons (whether a party to the action or not) • A 3P D may by CC, file a claim against P, D, &/or 3P P, whether the other person is a party to the action or not
Rule 3.57 – CC must be filed same time as SOD -‐ contents -‐ time period • CC must be (a) in Form 21 & (c) filed/served w/in the same time per that D has to file a SOD (under 3.31) • (b) CC is a pleading & governed by all the rules and reqs that apply to pleadings in Part 13, Division 3 • Has to be filed at same time frame as SOD
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Rule 3.58 – CC is an independent action
Rule 3.59 – claiming set-‐off • A matter that might be claimed by set-‐off may be claimed by CC or by pleading set‑off as a defence
Rule 3.60 – where rules state "D" it also applies to "D-‐by-‐CC" (“P” also applies to “P-‐by-‐CC”) • (2) If D-‐by-‐CC doesn’t file a SOD/DFN in re of the CC, can only get default judgment on CC after a notice of
app has been served on D-by-CC
Limitations Act -‐ s 6(2) • Can have CC if the added claim is related to the conduct, trans or events described in the orig proceeding
-‐ Must consider CC when filing a claim. If there’s risk of CC, may want to wait until it expires (limitations) if possible -‐ Can also possibly use CC as threat for defence
SET-‐OFF -‐ SO can be raised in a defence (not just in CC) if raising it in D, it must be a defence (some forms of SO are not Ds)
• If it’s a defence, it must be less than the orig claim, otherwise need CC to get add’l amt
Holt v Telford • T & C (a corp) swapped land & mortgages; C assigns its rts to H; H then sues T under rts that C gave to H • Issue: can T SO against H the money that was owed to T by C? • Legal SO applies where you have same parties with same right (v narrow right)
o H is an assignee so don’t have same party with same right doesn’t apply • Equitable SO more flexible; avail when there’s ass (don’t need orig parties) & can SO dams against a debt
o Applies in this case (could enforce the orig deal) o Ex: I buy a car for 5,000 and don’t pay; the vendor sues me for price
But there is a warranty and also deficiencies with the car; I want to claim against the V whatever the deficiencies are worth (to make good on the warranty)
The claim against me is a K’al claim, the CC for deficiencies are damages equitable SO applies
Aboussafy v Abacus Cities Ltd • Procedural SO setting off one unrelated claim against another & the court giving a net judgment
o Authority for this from this case + s.8 Judicature Act
NOTICE TO CO-‐DEFENDANT & THIRD PARTY NOTICE
-‐ For Notice to co-D and 3P notice, you need a right of contribution • 2 grounds for contribution:
o 1. Statutory right out of the Tortfeasors Act or Contributory Negligence Act TF Act is ltd only used when 2 ppl have committed torts and caused same damage to P
o 2. CL right Comes from Law of Unjust Enrichment (ACA case of Peterson v Pontiac) • Notice to co-‐D only through TF Act & Contr Neg Act • 3P notice either (1) or (2)
NOTICE TO CO-‐DEFENDANT -‐Notice to Co-‐D can only be used on existing co-Ds says to take notice that D is claiming contribution against them
• Limited remedy must be based on a remedy claim under Tortfeasors Act or Contributory Neg Act o Limited to claim of contribution or indemnity o If the basis of the claim is K’al then need 3P notice (next section)
-‐ The notice can be filed to some or all of the co-‐D’s
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-‐ Need to make sure you are adverse in interest against co-‐D just being a co-‐D does not make you adverse in int -‐ P can settle w co-‐D at any time, so filing this notice makes it difficult for the P to do so w/o including you
Rule 3.43 • (1) If a D claims a contribution or indemnity or both against a co-‐D under the TF Act or the CN Act
o (a) D may file and serve on co-‐D a notice in Form 15 claiming a remedy under either/both Act(s) o (b) Neither the D nor co-‐D need to file a pleading in re of a claim or defence under those Acts, and
So, it relies entirely on the pleading of the P bc you’re not adding anything So, the co-‐D does not defend when a notice is served upon them
o (c) A 3P claim need not be filed and served on the co-‐D • (2) Notice do co-‐D claiming contribution must be filed/served on co-‐D w/in 20 days of filing the SOD/DFN
Tortfeasors Act -‐ s.3(1)(c) any tortfeasor liable for the damage, may recover contribution from any other tortfeasor who is or
would be liable for the same damage this gives you a statutory right of contribution Can be separate torts, but they must be torts Note: if LP against one is expired (but not the other) then can’t use this
Contributory Negligence Act • S.2(1) – when dam or loss has been caused by fault of 2+ ppl, the court shall determine the degree of fault • S.2(2) – when 2+ are found at fault, they’re jointly & severally liable to the party suffering the loss, but as bw
them, they can recover damages from one another to the degree that they are each at fault • S.6 a person that may be wholly/partially resp for the damages can be added as a D if considered just
-‐ As a D, just need SOD and notice of contribution (that you’ll seek contribution from the other D) -‐ Rt of contribution is imp bc P will go after the D w bigger pockets (so rt of contrib lets that D recover)
THIRD PARTY NOTICE -‐ Recall: no issues when both are co-‐D’s Issues arise when (1) P sues only 1 of 2 ppl expected to be liable or (2) when P only sues one party at last moment (limitation issues arise for other contributor) -‐ Thus 3P notice more flexible can issue notice against existing D or used to bring new ppl into the lawsuit
• Does not have to be based on TF/CN Act, but can be based on anything that can give you rt of contrib: o 1. Joint tortfeasors o 2. K’al rt of indemnity bw D and 3P o 3. CL right of contribution (Peterson v Pontiac (ABCA))
a) Person seeking right of contrib and the other person both must be liable to P b) P cannot recover against both c) But P can choose to recover in full from either d) Some or all of burden of paying existing D should be borne by the other person Note: if LP expired against 1 but not the other, then CL rt of contrib lost (just like w TF Act)
• Imp bc (1) P may not sue all ppl resp & (2) claimant may settle w P but then seek contrib from others
Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman (ABCA) • CL states that you could have a right of contrib bw tortfeasors if one owes a duty to the other
o But if both TFs only owe a duty to the P, the CL doesn’t provide a remedy • This is where TF Act comes in [s.3(1)(c)] rt of contrib where 3P also owed a duty to P but not D;
o 2 conds: both TFs must be (1) liable to P (2) in tort (can’t be one in K and other in tort) • Issues arise w 2nd req re LP:
o Both must be liable to P thus if the LP on one has expired, the rt of contrib is lost o E.g. P brings claim against A 9 yrs after event but doesn’t sue B and the 10 yr cap expires; when A
wants to bring B in to the lawsuit, it’s now too late as the P has no action against B
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Note: s.3(3)(e) Limitations Act makes it possible to issue a 3P notice on B (the LP to name a 3P doesn’t begin until A has been named a D) but this case says B must still be liable to P pursuant to 3(1)(c) of Tortfeasors Act
• IOW, LA doesn’t extinguish the right, but it’s an unenforceable right
Rule 3.44 – when Ds/3P Ds can file a 3P claim against someone • D or 3P D may file a 3P claim against another person who:
o (a) is liable to the party filing the 3P claim for all or part of the claim against that party, o (b) is liable to the party filing the 3P claim for an independent claim arising out of
(i) a trans/occurrence involved in the action bw P & D, or (ii) a related trans/occurrence, or • ex: file 3P notice for something that’s unrel’d to P but an obl to indemnify does exist
o (c) should be bound by a decision about an issue bw P & D
Rule 3.45 – form of 3P claim/have 6 months from SOD to file 3P claim • (a) & (b): 3P claims must be in Form 16 & comply w the rules about pleadings in Part 13, Division 3 • (c): Must be filed/served on P & 3P D (i) w/in 6 mos after D filed SOD/DFN & (ii) before judgment is entered
against D or the D is noted in default o This is a procedural rule if you miss the 6mos, you can still apply to serve a 3P claim, but very rarely will you be able to get consent from other parties to do this. (this is where most issues arise)
o Practice pt: may want to get longest extension possible for SOD so can decide whether to file 3P claim • (d): When you serve the 3P claim, you serve them with a copy of a SOC
-‐ If the 3P does not defend, then you can only "note in default” You cannot get default judgment
Rule 13.5 – extension for 3P claims • (2) Court can extend time for filing of app for 3P claim • Looks at 3 things: (1) Length of delay; (2) Explanation for delay; & (3) Relative prejudice to the parties • Court will definitely not let you file the claim if it is clear you are statute barred through a LP
Rule 3.46 – once joined as a 3P D, the 3P has the same rts as any other party
Rule 3.47 – 3P D options • (a) 3P D can apply to Court to set aside service (Rule 11.31, pg 21), • (b) apply to Court for an order under 3.68 (court options to deal w sig deficiencies) w re to the 3P claim • (c) apply to Court for an order under 3.68 w re to the P’s SOC • (d) file a SOD or demand for notice
Rule 3.48 – Ps options w re to 3P claims (can apply to strike out a 3P claim) • P in an action where a 3P claim is filed may apply to Court for an order under 3.68 w re to the 3P claim
Rule 3.49 – 3P SOD & add’l options • (1)(a) & (b): 3P claims must be in Form 17 & comply w the rules about pleadings in Part 13, Division 3 • (1)(c): 3P may dispute either or both of the following:
o (i) the D’s liability to P (bc rt to contribute is contingent of being liable to P) Imp to do this bc 3P now has 2 defences: (1) can team up w D (D wins no liability of 3P to
D) & (2) if 3P defence doesn’t deny D’s liability to P, then 3P admits it (Rule 3.52(1)) o (ii) the 3P D’s liability described in the 3P claim (if it doesn’t 3.52(2) deems 3P to admit liability)
• (3) Applicable time for 3P D filing/serving SOD same that apply to SOD apply here (see Rule 3.31, pg 27) • (4): 3P D can (a) make a 3P claim against a 3P co-‐D in accrd w 3.43 &/or make a CC in accrd w 3.56(2)
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Rule 3.50 – 3P D may file a demand for notice using Form 18 (same timeline as rule 3.49)
Rule 3.52 – consequences of 3P D not filing 3P SOD • (1) If 3P D doesn’t file SOD disputing liability of D to P 3P D admits it • (2) If 3P D doesn’t file SOD disputing 3P D’s liability described in 3P claim D admits liab to extent of 3P claim
Rule 3.53 – judgment against 3P D • (1) Court may give judgement against a 3P D if 3P D doesn’t file a SOD (D must serve Form 19 on P & 3P D) • (2) P must satisfy judgment against D before judgment can be enforced against 3P D
Rule 3.54 – P’s reply to 3P defence • (2) if P or 3P P files a reply, it must be in Form 20, comply w rules about pleadings & be filed/served on all
parties w/in 10 days after service of SOD by 3P D on the P
Rule 3.55 – application of rules to 3P claims • (a) a rule that applies to a P, applies to 3P Ps; (b) a rule that applies to a D, applies to 3P Ds • (c) a pleading related to a claim made by a SOC applies to a pleading related to a 3P claim
LIMITATIONS
• Regular LP rules apply to 3P claims LP is applied exactly the same way as any other context • What's the ‘injury’ in context of a 3P claim? When the D is served with SOC
Dean v Kociniak • Jun 25/95: P’s accident • Mar 19/97: P sues Kociniak (K) et al. • June 5/97: K filed SOD • Dec 5/97: 6 month period to file/serve 3P claim expired • Dec 11/97: Questioning – K suspects possible 3P claim against Creative Carriage (CC) • May/99: K retains expert • Oct 15/99: Expert tests and inspects • Nov 27/99: Expert report received by K (court relied upon this to approve adding 3P) • Dec 14/99: Applied to add CC as 3P filed by K • Notes: court did not punish K for not getting expert right away; no longer a late suing P problem; court will
decide when the 2 yr period should have started (could have easily been Dec 11/97) • Ratio injury referred to in s.3 Limitations Act is not the injury to the P, but rather the injury to the
D, in which case the running of the LP does not begin until the P obtains judgment against the D
Pagnucco v Sears Canada Inc • Jan/99: Pride issues warning about defect plus a service bulletin • May 28/99: P’s accident • May 18/01: SOC filed • Dec 12/03: SOD filed • May 20/04: P acknowledges • May 25/04 + Oct 6/04: D’s AOR + Plaintiff's AOR • Oct 7/04: P’s examination • Oct 7/04 + Oct 12/05: Examination of D’s corporate representative • Dec 16/04: 3P notice against manufacturer (deficient) • 2005: Sears (D) "discovers" claim against Pride • Aug 2006: Sears files app to add Pride as 3P • Dec 2010: D settles w P • Notes:
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o After settlement they wanted to add Pride as a 3P but court said no. It would give serious prejudice to Pride bc they cannot dispute the liability bw the P & D w the settlement in place.
Plus, adding Pride would unwind the lawsuit and require re-‐tracing a bunch of steps o LP has passed, court did not accept that they discovered the claim in 2005. Court is probably relying
on the Jan/99 warning. Even then, there would have been lots of things along the way to raise the "ought to know" req. There was no expert report or anything.
DISCLOSURE OF RECORDS/EVIDENCE
-‐ 3 kinds of disclosure: (1) discl of documentary ev (AOR), (2) discl of oral ev (Q’ing), (3) expert ev -‐ Purpose to show other side what, and how strong, your case is
• Once you inspect docs & Q other side, can evaluate prospect of success opportune time to settle -‐ Steps: (1) Disclosure of Records then (2) Q’ing -‐ Have an obl to produce records that are "relevant and material" (defined in 5.2) [also applies to Q’ing]
o 5.2 “r&m” = (1) if it can reasonably be expected (a) to significantly help determine 1+ issues raised in pleadings, or (b) to ascertain ev that could be reas expected to sig help determine issues raised in pleadings
-‐ “Record” the representation of, or a record of, any info, data or other thing that is or is capable of being rep’d or reproduced visually or by sound, or both -‐ No obl to create a record – if it exists than you have to produce it. (ex: creating a table from a database isn’t nec) -‐ Must be under your client's control Any sit in which you can demand a doc is under your control
AFFIDAVIT OF RECORDS
-‐ A sworn list of records that each side has re the lawsuit (to be made avail to other side for use/inspection) -‐ Must gather all the records (electronic, photo, videos, voice messages, anything that can be heard/reproduced) -‐ The AoR are served, not filed (you don't attach all the copies of the actual records, just describe them)
• Most likely afterwards, the other party will then ask for production of the records • AOR may raise things other side didn’t think of before & results in an undertaking to produce other docs
-‐ The description must be adequate: • Test if the record was produced at trial, could it be referred to by the description?
-‐ If you get records from the other side, you can only use them in that specific lawsuit -‐ Rules related to production of records don't really apply to provincial courts (makes it quicker/cheaper)
Rule 5.1 – starting pt (purpose & scope) • (1) Applies to disclosure of records and disclosure of Q’ing purpose of disclosure of records/oral ev is to:
o (a) Obtain ev relied upon in the action o (b) Narrow and define issues bw parties’ o (c) Facilitate evaluation of the parties positions o (d) Encourage early disclosure of facts & records o (e) Discourage conduct that unnecessarily delays proceedings or increases the costs of them
• (2) The Court may give directions or make any order nec to achieve the purpose of this Part.
Rule 5.5 – when AOR must be served • (2) P must serve AOR w/in 3 months after being served first SOD • (3) D must serve AOR w/in 2 month after getting the P's AOR • (4) 3P D who has filed a SOD must serve AOR w/in 3 months after filing SOD
Rule 5.6 – form and content of AORs • (1) AOR must (a) be in Form 26 & (b) disclose all records that (i) are relevant & material to the issues in the
action & (ii) are or have been under the party’s control • (2) AOR must specify:
o (a) which records are under their control that they don’t object to giving the other side,
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o (b) which records, if any, the party objects to produce and the grounds for objection, and ex: need to (1) identify the objection (ex: privilege) and (2) why it is you object
o (d) records party previously had under its control, but doesn’t have any more (& where they went) • (2)(e) must incl aff saying they don’t have/never had any other relevant & mat record under their control
Rule 5.7 – producible records (may be bundled) • (1) Each producible record in AOR must be (a) numbered in a convenient order & (b) be briefly described • (2) A group of records may be bundled & treated as a single record if (a) they are all of the same nature, and
(b) the bundle is described in suff detail to enable another party to understand what it contains
Rule 5.8 – records for which there is an objection to produce • Each record in an AOR that a party objects to produce must be numbered in a convenient order, and the
AOR must identify the grounds for the objection (ex: privilege) in re of each record o Can be bundled # them individually & describe them generically in a category
Rule 5.9 – AOR must be sworn by parties • (1) AOR must be sworn by (a) the party, (b) corp rep (if a corp), or (c) litig rep if one is appt’d for a party • (2) a suitable person, other than the L of record of the party, may swear the AOR if: (a) it’s inconvenient for
the party (or corp rep/LR), and the parties agree or the Court so orders • Lawyer cannot swear an affidavit of records
Rule 5.10 – duty to disclose new records (it’s a continuing obl to disclose) • Parties have a duty to disclose any new relevant & material records that come into their control • (c) Supplemental AOR Just before trial, can file all new AOR discovered at once, instead of piece by piece
Rule 5.11 – court can order for record to be produced • (1) On app, Court may order a record be produced if it’s satisfied that (a) a relevant & mat record under the
party’s control has been omitted from AOR, or (b) a claim of privilege has been incorrectly/improperly made • (2) Court may (a) inspect the record, and (b) permit cross-‐examination on the orig & on any subseq AOR
Rule 5.13 – court can order production of records from a non-‐party • (1) On app & after notice of app is served on person affected by it, Court may order production of record if:
o (a) the records is under the control of the non-‐party o (b) there is reason to believe that the record is relevant and material, o (c) the non-‐party might be req’d to produce it at trial
• (2) The person requesting the record must pay the non-‐party an amt determined by the Court • Common sit patient’s med file is his prop (dr must provide copy when requested)
o In personal injury, file is relevant; drs sometimes not cooperative this rule orders production • Must know what you’re looking for or Court won’t grant the app (no phishing expeditions allowed)
Rule 5.14 – inspection and copying of records (not incl privileged records) • (1)(a) If there is a written request to inspect the records must accommodate to allow them to do that • (1)(b) If they ask for copies, upon payment of a reas cost of photocopying, you supply them w copies • (3) They are entitled to electronic copies of records
Rule 5.15 – admissions of authenticity of records • (2) Parties who serve an AOR are presumed to admit that a record is authentic (true copy of orig or orig) • (3) sub(2) doesn’t prejudice the rt of a party to object to admission of record in ev & doesn’t constitute an
agr/acknowledgement that the record is relevant & material • (4) sub(2) doesn’t apply if the maker/recipient of AOR w/in 3 mos of AOR production, serves notice on the
other party that the authenticity is disputed & that it must be proved at trial
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IF YOU DON’T SWEAR/SERVE THE AOR, WHAT ARE THE CONSEQS?
Rule 5.12 – penalty for not serving AOR • (1) Court can grant a cost penalty which is twice the amt of whatever column applies to you in Schedule C • (1)(b) Penalties only apply if you miss the deadline (5.5) & you don't have suff cause for not filing on time • (3) This penalty is paid out regardless of the outcome of the lawsuit
Sun Life Assurance Company of Canada v Tom 2003-‐1 Limited Partnership #2 – “suff cause” • "Suff cause" in rule 5.12 is a very high bar just forgetting is never "suff cause" • "Suff case" covers excusable neglect but again it's high bar (ex: fire, flood, sudden med emerg, tech glitch) • "Suff cause" will be neglect that is excusable on suff grounds based on the circs of that party
Chevalier v Sunshine Village Corp – rule 3.68 is a suff excuse • Rule 3.68 app (strike pleadings for sig deficiency) is a suff excuse for failure to produce AOR
o Party wanted one month extension to make app to strike records from AOR o Court granted bc it would save time/money to hear the motion to strike, which was not frivolous
• Not suff to refuse producing records on grounds it might be matter of public comment
Wagner v Petryga Estate – need reas excuse beyond control of the party • Need some reas excuse usually beyond the control of the party – cause is case specific
Rule 5.16 – undisclosed records not to be used w/o permission • Undisclosed records cannot later be used at trial • If material was privileged & disclosed, you can waive privilege & later produce it at trial.
o But, there’s a diff bw disclosure & production privileged items that are disclosed can be used later on
Rule 5.11 – court can order a record to be produced (see above)
WHEN DRAFTING AOR, THERE ARE CHOICES RE WHAT RECORDS APPLY
1. Records Which are Relevant and Material
Rule 5.2 – what is relevant/material • Applies to AOR and Qing • “R&M” a Q, record or info is rel & mat only if the answer to the Q, record, or info, could reas be expected to:
o (1)(a) to significantly help determine 1+ issues raised in pleadings, or o (b) to ascertain ev that could reas be expected to sig help determine 1+ issues raised in pleadings
• (2) The disclosure/production of a record under this Division is not, by reason of that fact alone, to be considered as an agr/acknowledgment that the record is admissible or relevant and material
Boxer v Reesor • Client likely to mistake relevant w exculpatory even if doc tends to show liability, still must be produced if
it’s relevant or material (lawyer’s job is to oversee this)
Canadian Natural Resources Ltd v Shawcor Ltd – something relevant may not be material • Something that might be relevant may not be material & therefore does not have to be produced • 2-Part Test:
o Relevant a record is relevant if it elicits facts of primary relevance or facts of secondary relevance (facts from which primary facts may be inferred)
o Material if reasonably expected to help determine one or more issues in the pleadings
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• Should err on side of caution & produce just bc you say it’s rel/mat doesn’t automatically make it admissible at trial and doesn’t mean it’s determining anything (this is court’s job)
o Also have an obl of good faith to produce the records
Lazin v Ciba-‐Geigy Canada Ltd, Jacobs and McClure – a diary is producible • A diary is producible may illustrate person’s state of mind • Problem: may have mix of relevant & irrelevant stuff solution is to redact irrelevant things
Leduc v Roman – facebook stuff is producible • Facebook stuff is producible not just public stuff but also stuff only friends can see • Litigant has obl to preserve the pages & potentially produce them and make them avail
M(A) v Matthews – prior lawsuits are certainly relevant, probably material • Issue: whether the details of a settlement of a previous lawsuit were producible • The settlement was relevant but not material and thus didn’t have to be produced until current lawsuit was
concluded IOW, the only aspect of its materiality was to prevent double recovery • Caveat: conflicting authorities some cases state settlement details should be produced before
determination of damages • Summary: details of settlement from previous lawsuit is certainly relevant, probably material
2. Records Under a Party’s Control
-‐ Obl to disclose isn’t ltd to physical docs but also to things you have ability to get from other sources -‐ Test if the person had the legal right to access the record (IOW, control)
Western Union Insurance Company v Nihill • Post accident blood sample is in the power of the P to produce; since P could require the hospital to give it
to him, it’s in his power Based on this, the existence of this record need to be disclosed • You are to disclose it subj to objection about production
McInerney v Macdonald (SCC) – patient’s file is his prop (dr obliged to give copy if requested) • A patient’s file is his prop; dr doesn’t have to provide orig but obliged to give copy if requested • Patient has obl to disclose under lawsuit • Rule 5.13 Court can order dr to produce
McAllister v Calgary (City) (ABCA) • Right to access record from non-‐party can arise in diff ways (ex: K, statute, CL, equity) • Old CL test still applies in AB under new rules
3. The Exception for Privileged Records
-‐ Recall: if you refuse to give to other side, then need to see describe it and give reasons for the objection -‐ Categories of non-production:
Ordinary Privilege -‐ Privilege is really the only grounds for objecting to producing a record -‐Most common is solicitor-‐client priv (don’t have to apply Wigmore for this) Belongs to client so he can give it up -‐ Wigmore Test if all apply, then it’s privileged
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• 1. Communications must originate in confidence • 2. Element of confidentiality must be essential to the rel bw the parties • 3. Rel must be one which ought to be fostered • 4. Injury by the disclosure of the comms must be greater than benefit gained for the correct disposal of litig
-‐ Some sits are borderline that don’t always meet the test (dr/patient, journalist/source, etc)
AM v Ryan (SCC) – ltd production of psychiatrist notes • P suffered sex assault and sued D; P had counselling after assault; D wanted psych’s notes produced • Court ordered ltd production not protected but to safeguard P, it was only given to lawyers/experts
Litigation Privilege (aka In Contemplation of Litigation Privilege) -‐ Covers records that are created for the dominant purpose of litigation -‐ Onus of proving the privilege belongs to the party asserting the claim for privilege -‐ Test (from Mosley and summarized in Ernst & Young Inc v Central Guaranty Trust Co)
• The party claiming privilege must establish that at the time of creation, the dominant use was for litig (reasonably contemplated or pending) strict test
o Look at doc at time of creation need to keep in mind that dominant purp can change over time and there can be multiple purps attached to the record
Without Prejudice Communications -‐ Intention of that st is to enable yourself to fall under the category of not producing the record but the words "w/o prejudice" really mean nothing look to the test
• Test can the correspondence/communication have been reasonably held to be made in contemplation of settlement or in the course of settlement
• Content matters more than claiming it's w/o prej o If you are unsure as to whether it falls under this category, err on the side of saying it's privileged
• Formal offers in settlement are w/o prej communications (rule 4.27) o If it's not really a formal offer, but you are giving up something then that would qualify o If it’s a formal offer, both sides have to agree to have it produced otherwise it cannot (4.27)
-‐ Bellatrix Exploration Ltd v Penn West Petroleum Ltd purp of this type of priv is that parties should be encouraged to make offers & counter-‐offers and discuss settlement w/o it being revealed to the court
Procedural Issues -‐ Re ordinary and litigation privilege can be waived by party who owns the privilege -‐ Re w/o prejudice communications need consent of both parties for priv to be waived
Canadian Natural Resources Ltd v Shawcor Ltd – litig privilege can be waived 4 ways • Litig priv can be waived:(1)expressly; (2) inadvertently; (3) by implication; (4) if req’d for fairness & consistency
Syncrude Canada Ltd Babcock & Wilcox Canada Ltd – waiving privilege • Waiver of privilege once waived it no longer becomes privileged and it is producible • If you give a privileged record to 3P, not for the purposes of litig but some other reason then you have
arguably lost your privilege over it • Only the party whose privilege it is can waive it, or the privilege can be waived by the party's agent
o There must be explicit authorization, mere loss of control is not enough an unequivocal waiver • If there is an inadvertent disclosure of privileged info, then acting immed by notifying the other side to
destroy that doc is advised o The other side has an obl to do so under law society rules o If they have already seen it, they will not be able to use it in a case
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QUESTIONING
-‐ Where you sit down with the other party and ask questions (vice versa) only parties adverse in interest • Test for adverse interest [Turta v CPR]:
o Look at the pleadings as a whole to determine the issues as bw the parties Are the claims of the parties diametrically opposed on the pleadings 3P’s, co-‐D’s can be adverse to each other and other parties in the lawsuit
o The minute a 3P is added they may choose to dispute P's claim they are then adverse in interest • Need to look behind actual/immed parties to figure out who you can examine (Golden Estate v Neilson)
-‐ Rule 5.2 (pg 37) can only ask Q’s that are relevant and material (this is the new test; Rozak Estate v Demas) • Old rules were more broad bc they said anything that touches on the case (not the case anymore)
-‐ In the presence of a court recorder and you will be given a transcript afterwards -‐ Same ppl involved as those swearing AOR (somebody must answer Qs and be examined)
• If ind, then it’s the P; if corp rep, then officer, former e/ee, etc
Procedure/Goals for Q’ing: 1. Find the facts Asking Q’s to elicit oral ev for your client (investigative process) 2. Fixing the facts You’re setting the facts so it’s difficult for ppl to change their pos later (creating ev under oath) 3. Opportunity to see other side See what kind of W they will make 4. Give you option/encourage settlement
• Ls can discuss whether the issues can be reconciled • Ls often able to gauge success at trial (most matters settled after Q’ing)
-‐ But main purp is to get admissions from other side against their interest • Must see what you need to prove your case then get ev and admissions via Q’ing
-‐ Only the person asking the Qs can use the resulting ev • So whatever a W says can be used against him but not in his favour (so best not to volunteer info)
Lawyer’s role during Q’ing: • Beforehand, can give W a sense of what to expect, but can’t coach • Can’t assist, but listen and object if not proper (ex: can’t say to your W “aren’t you forgetting this?”)
o Rule 5.25 grounds for objection • Code of Professional Conduct – Rule 4.04
o Lawyers can't obstruct the examination & can't talk to their client while they are being Q’d • Things to keep in mind:
o ***1. Begin by identifying W on the record (“are you the person who is the D in the QB act # ___?”) o 2. Ask warm up Qs (ex: what W does for a living) o 3. Non-‐verbal or ambivalent responses don’t make it on transcript
Need to state answer (nods are no good); need to describe pictures, etc
Landes v Royal Bank of Canada • No undue interruptions • Inappropriate to object to Qs that the lawyer doesn't understand (for W to decide) • You can't feed an answer to your W
-‐ Rule 7.2 can apply for summary judgment based on Q’ing (if it goes well for you & other side won’t settle) -‐ Special cases (lacking capacity or Crown):
• Rule 5.17 if person lacks capacity, you can Q litig rep o Can also Q person himself but not useful if he is a dependent adult (incapable of giving ev) o W children, covered by s.19 of AEA can examine if they understand duty of truth o Ev is of ltd value in these cases, really Q’ing for the info
• S.11 Proceedings Against the Crown Act can examine the Crown (treat it like a corp) o S.7 Crown has add’l grounds for refusing to answer Qs based on public interest
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SCOPE AND PURPOSE OF QUESTIONING
Rule 5.1 – purps and scope of Q’ing (see page 35)
Quality Investments Ltd v Curtis Engineering & Testing Ltd – Q’ing expert Ws on their opinions • W who is qualified in the area of expertise can't be compelled to answer Qs in regards to their opinion
o They can only give answers relating to facts o Exception: Ws will be allowed to be compelled to answer a Q in an area of their expertise if that
person's expertise is at issue
Can-‐Air Services Ltd v British Aviation Insurance Co Ltd – Q’ing is about eliciting facts, not law • Q’ing is about eliciting facts, not law W is not to give legal opinion • Can’t ask W to make fact selection by asking what facts the W relies on for certain allegations in the
pleadings the Q of reliance would require applying a legal test & selecting certain facts from others
Rule 5.19 – limiting or cancellation of Q’ing • On app, Court may (a) limit # of ppl subj to Q’ing &/or cancel a Q’ing that’s unnec, improper, or vexatious
Rule 5.20 – must serve AOR before Q’ing / when Q’ing is to take place • Party cannot apply or try to Q another party unless they have served AOR on that party (subj to agr bw parties) • D can be Q’d even if SOD hasn’t been filed (P can Q anytime after SOD has been served or service time has expired) • P can be Q’d any time after SOD has been served
Rule 5.21 – appt for Q’ing (serve notice 20+ days before Q’ing) • Party wanting to Q, must serve a “notice of appt for Q’ing” in Form 29, 20 days or more before the appt date
Rule 5.22 – Q’ing may be done orally, under oath, or by written Qs, answered under oath
Rule 5.23 – person to be Q’d must reas prepare for Q’ing and must bring relevant records
Rule 5.26 – oral transcript and exhibits • If you do oral questioning, you must have a transcript made by a court reporter • Reporter marks docs as exhibits & attaches to transcript (doesn’t mean they’re adm at trial; for ID purps)
Rule 5.27 – continuing duty to disclose • A person who has been Q’d must, by affidavit, correct an answer if it was incorrect/misleading or becomes
incorrect/misleading as a result of new info
PARTIES ADVERSE IN INTEREST
Turta v CPR • T sued CP and IO; CP in turn 3P’d MT • Issue: who can examine who? Can IO & MT examine each other?
o No. Nothing bw them that would cause them to be adverse in interest • Things that would allow examination of other side:
o (1) 3P notice (if IO & MT were co-‐Ds & notice of contib under TF/CN Act) or (2) SOC • Parties who can’t examine each other: (1) Co-‐Ps bc not adverse & (2) Co-‐Ds if nothing bw them • Parties who can examine each other: (1) P and D & (2) 3Ps and Ps if pleadings suggest adverse in interest
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Golden Estate v Neilson • Public trustee sued 2 Ds for funeral expenses & stat benefits for the deceased’s spouse/mom • Issue: whether the spouse & mom could be examined • Yes. They were true parties & thus adverse to Ds (not named bc action brought on their behalf) would
have action in their own rt for stat benefits under SOAA & FAA had trustee not brought it for them
OBJECTIONS IN Q’ING
Rule 5.25 – appropriate Qs and objections • (1) W only has to answer Qs that are (a) relevant & material & (b) are not properly objected to • (2) A party/W may object to Qs for one or more of the following reasons:
o (a) Privileged o (b) Not relevant or material o (c) Unreasonable or unnecessary o (d) Any other ground recognized at law
Only going to credibility Similar fact E Q’s (e.g. Haven't you sued every insurer you ever had?) Steps taken after the incident in question Asking names of other Ws
• (3) A corp rep may object to an oral/written Q on the basis that it would be unduly onerous for the corp rep to inform himself in the circs
• (4) If an objection to a Q cannot be resolved the Court must decide its validity • (5) After the Q’ing party has finished, that person may be Q’d by the party for whom the person is or may
be a W to explain, elaborate or provide context for an answer initially given o (6) Following this, the person may be Q’d again about the person’s answers
-‐ In practice: put the Q and objection on record & then 5.25(4) says you can apply to have court decide it’s validity • can still argue the objection at trial just bc it’s on the transcript, doesn’t necessarily make it admissible
EMPLOYEES AND OFFICERS
-‐ Corp will select corp rep to speak on its behalf only rep can bind the co (e/ees cannot) • So if we examine e/ee, how do we use it?
o Examine e/ee first, then put that ev to corp rep corp rep needs to acknowledge whether ev is info of that co then need to know what co’s position is – Accept? Reject? [Rule 5.29]
Rule 5.4 – appointment of corporate reps • (2) Corp reps must inform themselves of rel & mat records & mat info before Q’ing, bring records likely to be
req’d to Q’ing (unless claim of privilege), & give approp ev of the rel & mat records & rel & mat info • (3) The corp rep’s ev is ev given by the corp • (5) If the other party has not appointed a suitable rep, one can be appointed by the Court
Rule 5.17 – who you can examine • (1) Parties are entitled to examine others on relevant material records and info (not restricted to records) • Applies to every party who is adverse in interest to you, including:
o If corp Can examine all corp officers (based on role, not title) & the corp rep (ev is binding) (2) If you decide to Q >1 officer, you’re obligated to bear the cost of add’l Q’ing above 1 officer
o A litig rep & the party they are representing (if court permits & they’re competent to give ev) o One or more current or former e/ees of a corp party (ev isn’t binding on the corp) o An auditor can also be examined, but only if they acted in the normal course of bus for the party o If a p/ship a partner or former partner
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Rule 5.18 – can examine someone who provided services to corp • (1) Can examine someone who provided services to corp if: (3 conds)
o 1. you can't obtain relevant info from an officer/e/ee o 2. it would be unfair to require you to go to trial w/o Q’ing the person, and o 3. the Q’ing will not cause unfair hardship, delay, or unfairness to any other party or person being Q’d
• (2) A person described in sub(1) can only be Q’d (a) by written agr bw parties or (b) w the Courts permission • (3) Cannot examine expert engaged for the purps of the lawsuit • (4) Ev from a person Q’d under this rule is treated as if it were ev on an e/ee of the corp (not binding) • (5) Unless parties agree otherwise, any costs associated w Q’ing is borne by the Q’er
Rule 5.29 – only corp reps can bind a corp • (1) The ev given by a corp W during Q’ing may not be read in as ev at trial unless a corp rep, under oath,
acknowledges that the ev forms some of the info of the corp • (2) The corp rep may refuse to acknowledge some or all of the ev of the corp W (must state why)
o But not entitled to refuse to acknowledge it just bc the corp rep disbelieves/disagrees w it • (3) If the corp rep does disbelieve/disagree w some/all of corp W’s ev, he:
o (a) must acknowledge the ev as info of the corp unless it is inadmissible under the laws of ev, and o (b) may then qualify the acknowledgment w further ev that is contrary to or inconsistent w the corp
W’s ev if the further ev is based on either or both of the following: a) The corp rep’s personal knowledge; b) A record prepared by the corp rep or provided to him by a person having personal
knowledge of the issue in Q
Cogent Group Inc v EnCana Leasehold Ltd Partnership – a service provider can be examined • Someone who is a service provider to the corp can be examined under 5.17 and 5.18
o This person must have knowledge relevant and material to the case o Service provider producible by the corp for Q’ing o If just a W neither side can produce (W not obliged) (can still meet w W but don’t get transcript)
• It’s the provision of services in relation to the matter in Q (an issue in the action) that transforms W to SP
CANA Construction Co Ltd v Calgary Centre for Performing Arts – an unpaid vol can be an officer • Officer is not limited to a higher or governing position
o Unpaid volunteer that performed key exec role was producible under 5.18 • The person will be an officer if he is the one person conn’d w the co on the relevant matters • Consideration of who is an officer in terms of applying the rules, should be given wide application
Tremco Inc v Gienow Building Products Ltd – former e/ee can be Q’d about info gained prior to e/ent • You can ask a former e/ee Qs about info they obtained after their e/ent ended • Not ltd to asking Qs about info from during their e/ent rel, you can go outside that scope • Corp rep still has the opp to say if they accept or reject the ev & give their position in relation to it
Petro-‐Canada Products Inc v Dresser-‐Rand Canada Inc – who is an e/ee for purposes of Q’ing • Who's going to be considered an e/ee for purps of Q’ing not the strict legal def
o There must be a rel w indicia of e/ent o “e/ee” must have acquired relevant knowledge through the nature of their e/ent rel
• Determined on a case by case basis Person wanting to examine the e/ee has burden of est’ing e/ent rel • Rules (rules 5.17 & 5.18) should be given wide application • Can Q somebody outside jur that qualifies as an e/ee, but they’re not compellable
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UNDERTAKINGS
Rule 5.30 – undertakings • (1) If during Q’ing, a person answering Qs (a) doesn’t know the A to a Q but would’ve known it if he had
reasonably prepared for Q’ing, or (b) has under their control a rel & mat record that’s not privileged, the person must undertake to inform himself & provide an answer, or produce the record w/in a reas time
• Must ask if info w/in person’s control if not, he only has to give best efforts • (2) Possible to have another round of Q’ing on undertakings (new Q’s are ltd to those undertakings)
Psychologists Association of Alberta v Schepanovich – test for w/drawing from an undertaking • You cannot unilaterally deny an undertaking • You can be relieved of an undertaking if it is shown:
o 1. To be given inadvertently, o 2. That it should not have been given, and o 3. That there’s no prejudice is caused to the other side (or if it can be repaired by costs)
• Should qualify undertaking by saying “I’ll make reasonable efforts” so won’t be guilty of breach
USE OF QUESTIONING
-‐ Uses of the transcript: • P use transcript to read into the record before you close your case at trial (ex: use D’s admissions in Q’ing)
o Must prove your case to avoid a non-‐suit so read in good admissions from the D • D used in cross of P and Ws Use transcript to put PISs to them
Rule 5.31 – can’t use your client’s transcript unless… • (2) You can't use the transcript of Qs being asked of your client • You can use a transcript taken from discovery for interlocutory apps • (3) Exception to using transcript for Qs of your client
o If only a portion of a transcript or a portion of the As to the written Q’s is used, the Court may, on app, direct that all or each others portion of the transcript/answers also be used if all or any other portion is so connected w the portion used that it would/might be misleading otherwise
PROCEDURE TO READ IN
410675 Alberta Ltd v Trail South Developments Inc • P objected to read-‐ins that were proposed and/or made bc: (1) read-‐ins were not complete & (2) rather
than reading in, the L should have put Qs to the W so he could address the issues related to the read-‐ins • Test only add to half an answer or one which is misleading or out of context Q of fairness
o W cannot insist that everything he said on a certain subj be read in • Court acknowledged that you are not restricted to putting Qs to the W but certain circs may require it
o If the W does not give any info on a subject you don't have an obl to put the Q to the W o If the W did provide info and you can cross examine, reading in may not be appropriate
• If in doubt put Q’s to the W (beware of rule in Brown v Dunn – must put it to W before you use it)
IMPROPER OR COLLATERAL PURPOSE
Rule 5.33 – confidentiality and use of information (from AOR or Q’ing) • (1) Any info/records you get as a result of current litig can only be used for that litig (implied undertaking)
o This is the rule unless (a) court orders otherwise; (b) parties agree to otherwise; (c) otherwise permitted by law
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Juman v Doucette (SCC) – implied undertaking not to use for ulterior/collateral purpose • There’s an implied undertaking not to use ev for an ulterior or collateral purpose (codified by Rule 5.33)
o If you breach this rule there are a variety of remedies that can be granted (serious offence) • SCC sharing of info will only occur in exceptional circs
o Test show court there is a big public interest (weighed against principles of privacy & efficiency) • In this case, prosecuting D for child abuse was not enough of a public interest to use the prior info
o The rt of a D not to incriminate himself was more compelling to maintain • Continuing duty even when litig ends, records must be kept in same regard as if lawsuit was still ongoing
Hall v Wilcox – implied undertaking in 5.33 does not apply to cross exam on an aff • Rule 5.33 does not apply to cross-‐exam on affidavit (only applies to the Q’ing)
o Cross exam on an aff is like a cross on the stand the ev can be used by either side o But w Q’ing, what goes on the record can’t harm the person asking the Q
L(P) v Alberta – the implied undertaking in 5.33 can be lifted • On app, the implied undertaking can be lifted if: (3 conds)
o 1. Party seeking to lift it bears the burden to demonstrate why it should be lifted o 2. Info sought to be used must relevant and material to the app or action o 3. The public interest outweighs the privacy interest of the ppl involved in the other litig
Kent v Martin – info gathered at Q’ing used to add new Ds • K sues journalist for defam; at Q’ing, K finds out other parties may have been resp & wants to add them as Ds • Issue: can you use info gathered during Q’ing for that purp?
o Yes, bc not using ev for ulterior reason outside the lawsuit but for purps of the lawsuit (adding ppl to action) • Can use this info outside suit to form the basis for a law society complaint (person sought to be added was a L)
o Public interest in being able to complain to the law society outweighs obls to the client
APPOINTMENTS
-‐ Recall: Rule 1.2 says we must act cooperatively in a lawsuit
Rule 6.16 – contents of notice of appt (req to set time, date, etc for appt) • (1) A notice of appt for Q’ing must (a) specify a reas date, time & place, (b) describe any records the person
is req’d to bring, and (c) ask if there are any specific needs that need to be accommodated • (2) NOAFQ must be served 5+ days before the appt date on the person being Q’d & on each other party • Practically speaking, where people are rep by counsel you don't go through the formal appt process.
o But practices may vary in reality. Often lawyers just agree to a date over the phone.
Rule 5.21 – appt for Q’ing (serve notice 20+ days before Q’ing) • 6.16 applies w 1 modification: unless parties agree otherwise, NOAFW must be served 20+ days before appt
Rule 6.17 – payment of allowance • When serving a notice for appt, you must provide an allowance (if not served w allowance not valid service) • The allowance is the amt of money estimated for that person to attend (payable to the person you are Q’ing)
Rule 6.18 – lawyer’s responsibilities • If you are the lawyer being served w the appt notice, let your client know about it as soon as practical • The allowance can only be used for the client to get to the Q’ing. Can’t be used as payment for lawyer fees • If person doesn't show up, return the allowance
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Rule 6.19 – interpreter • (1) If person needs an interpreter, they must give you reas notice of that • (1) Q’ing party must let other lawyers know that an interpreter will be attending • (2) & (3) Q’ing lawyer has to arrange for interpreter & pay for the costs (may be able to get the costs back) • (2) The court reporter will give the interpreter an oath as well, this way the interpreter is fair and neutral
EXPERTS
-‐ Used by parties to strengthen the merits of their lawsuit -‐ Want to get expert as early as possible may help you draft SOC/SOD (but unlikely bc usually get EX later on)
• Want expert before Q’ing helps you interpret ev, etc -‐ Best to give expert everything for review so they can give you informed opinion (ex: transcripts of Q’ing)
• But don’t give expert things your client has been Q’d on not improper but bad idea since expert may just base his opinion on client’s transcripts (risk is that client may not say the same thing at trial)
• Better to take client’s transcripts and summarize then tell the expert to assume the following -‐ Up until the time you call the expert as a W, all conversations are subj to litig priv
• Once you call that expert at trial, their entire file (not just report) becomes producible • So at beginning, don’t have them prepare anything in writing (only conversations)
o Later on, ask them to produce report • Prior to trial, need to ask other side for this file/report • Once trial starts, must tell them that he can no longer send you draft reports
Rule 5.34 – service of expert’s report (serve Form 25 on other side) • If intend to call an EX at trial, you must serve the EX’s report to opposing counsel w std Form 25 • Form discloses: expert's name, qualifications, & substance of their opinion (just attach copy of report) • Not filed, only served (bc don’t want it on record; filing a report doesn’t make it admissible at trial)
Rule 5.35 – sequence of exchange of experts’ reports and timing • (2)(a) Party w initial onus of proof, serves their expert reports first report of first instance • (b) If opposing party has a rebuttal EX report they can provide it to you rebuttal report
o It need not be a true rebuttal report (not ltd to issues raised in the first parties report) • (c) Then first party can serve a surrebuttal EX report in response to the rebuttal report
o The surrebuttal report is ltd to issues raised in the rebuttal report • Timing worked out bw the parties via pre-trial conference (not in rule)
Rule 5.36 – objecting to expert’s report • If you object to the admissibility (not substance) of an expert report you must let the other side
know and the reasons for the objection (ex: person is not an EX, their report is not matter of EX opinion) • If you don't object to the expert report after being served, you cannot go and object at trial
Rule 5.37 – can Q expert before trial (not common) • You can only do this if all the parties agree or the court directs (only exceptional circs) • Q’ing is ltd to expert’s report • The court can impose conds on that Q’ing & direct costs • If you’re allowed to Q an adverse party's expert, the ev is treated as if they’re an officer/e/ee of that party
o So, it’s not ev of that party unless that party adopts it
Rule 6.40 – the court may appoint its own court expert to give ev on a matter (rarely used)
Rule 5.38 -‐ continuing obl on the expert • If EX changes opinion after serving the report, the change must be disclosed in writing & served on other parties
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Rule 5.39 – use of expert’s report at trial w/o expert • (1) When you serve the EX report, you can also serve a notice of intention to have the report admitted
as ev w/o calling the EX as a W • (2) The other side, w/in 2 months of receiving the notice, can:
o 1. Do nothing (then the EX report is entered as ev at trial & can’t object) o 2. Serve notice that he will object to certain parts of the report o 3. Serve notice that he wants the EX at trial so he can cross examine
• Agreeing to have the EX report entered as ev w/o calling EX as a W (either explicitly or via sub(2)) is not an admission of the truth or correctness of the EX’s report (can still call contradicting ev)
• Ex: personal injury P sees many GPs/specialists; want EX report in but don’t need to call every dr
Rule 5.40 – you must pay cost of other side’s expert to attend trial • (2) EX whose entire report is to be entered at trial must not give oral ev unless (a) a request that the expert
attend for cross-‐examination has been served, or (b) the Court permits • (3) Party who requests the EX’s attendance, must pay the costs unless the court is satisfied that the cross-‐
exam is of suff assistance to warrant a diff order about who is to pay those costs (costs in Schedule B) • (4) If you served notice of intention to not call expert & other side requests attendance, you still get to
perform direct examination on the W
Rule 8.16 – one side can’t use >1 expert for same subject • Unless Court permits, no more than 1 EX is permitted to give ev on any one subj on behalf of a party
Henderson (Estate) v Arnett – when expert reports can be on the court file • P filed EX report then served; intended to call Ws at trial; D applied to have reports purged from court file bc
by filing them, P had tainted the court file w ev that hadn’t been proven • P argued filing/serving was permitted by rule & routine (not true) & file not tainted bc ev still needs to get in • Rule 5.32 says certain docs must not be filed (transcripts of Q’ing, AOR) but nothing about EX reports • Held: EX report should only be on court file: (1) w consent of both parties or (2) court’s approval
o Should also let trial coordinator know who experts are so no conflict of interest w judge • Court granted removal of report winner of app gets costs rules weren’t clear here so both sides paid
EXPERT REPORTS BY MEDICAL PROFESSIONALS
• Often apply to Ds in personal injury matters & tort claims where the mental/physical cond of P is at issue • Adverse party can compel P to be examined by their health care professional (HCP) (Rule 5.41) • “Health care profs” v broad: dr, surgeon, dentist, OT, RMT, RN, etc (all must be certified under its leg)
Rule 5.41 – medical examinations (starting pt) • Parties can agree that the mental/physical cond is at issue & agree to have a health care prof conduct the exam • On app, Court may order that a person submit to a mental/phys med exam, &/or appoint a HCP to conduct exam • Court may order a 2nd or further medical examination by a health care professional • Even if P has already been subj of medical exam by HCP of their own choice, the court can order an
exam by 1+ of the D's choice
Rule 5.42 – what P can do while being examined • (1)Unless Court orders otherwise, person who is subj to a medical exam may elect to do 1+ of the following:
o (a) nominate a HCP to be present during the med exam; (can’t have non-‐prof chaperone attend; ie. L) o (b) videotape the med exam; o (c) make a word-‐for-‐word recording of the med exam
• There are rules for getting an order for this, but in practice, an arrangement is just made
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Rule 5.43 – D must pay for P to see his health care professional • Unless Court orders otherwise, the party applying for an order for med exam, must pay the cost of the exam • If you are the party having the med exam, if you choose to do anything in 5.42, you have to pay the costs
o If a video/transcript is made, you have to distribute it to the other parties as soon as it’s ready • The videotape or recording: (a) may be shown or played at trial only w the Court’s permission, and may only
be used to verify events at the ME
Rule 5.44 – what the examining health care professional can do • A health care prof conducting a ME may
o 1. Ask Qs relating to that person’s mental/physical cond & medical history (person must answer) o 2. Obtain samples and analyze them only if P agrees in writing/court orders o 3. Perform any test recognized by medical science only if P agrees in writing/court orders
• ***V imp (3)(a) Party causing the med exam must prepare a report that must be provided to other parties o This is diff from a typical expert report no litigation priv here so may be risky
• ***(3)(b) Party causing med exam, on request, is entitled to receive from the person examined a report of every med exam prev or subseq made of the phys/mental cond resulting from the injuries sustained or the phys/mental cond that’s in issue (beneficial to D bc now entitled to reports that would have litig priv)
• (4) If a party refuses to provide a report in the manner in sub(3), Court may order the report provided o If HCP refuses to make report in writing, Court may exclude HCP’s ev if HCP’s ev is offered at trial
• (5) On app, the Court may make any order it considers nec to limit or curtail a med exam
Nystrom v Ranson – factors in considering reasonableness of medical exam • MVA; re Rule 5.41 and scope of D’s ability to have P examined by health care prof • SOC makes no mention of psychological harm suffered & P was not calling a psychologist/psychiatrist • P had agreed to be examined by D’s OT & vocational counsellor but wants to limit the length and scope
o OT said he needed 9 hours for the exam, P said 2-‐4 hours at most • Court considers following factors:
o 1. P must establish real risk of personal injury o 2. The degree of competence of the proposed tester o 3. Ev of reliability and usefulness of the test o 4. Importance of the test for diagnosis o 5. Degree of relevance to the lawsuit o 6. Reasonableness of the time and effort o 7. Health risks to the P o 8. Degree of intrusion into the privacy of the P o 9. Balancing a potential expense against the good achieved (ie. will P miss tons of work?)
• Med exams should be left to be conducted as HCPs see fit unless there are compelling reasons against it • 9 hrs not excessive Preferable to give D’s HCP more time bc may take more time to develop rapport w P • P asked to have exam by a vocational therapist that was also a psychologist (& VT wanted to do psych tests)
o Although P did not intend to call psychologist, court allowed it took judicial notice of the fact that physical health of inds may be affected by psych & psychiatric health
o P was also always free to reply w a rebuttal report
Drapaka v Patel – P in PI action must disclose EX reports 1st before D elects to conduct med exams • 2 sister decisions from Masters appealed to QB related to MVA and personal injury • 1st action D was making an app for an order directing a litig plan that would say the P would produce
their EX reports they intended to rely on in trial prior to D scheduling any med exams of the P o Litig plan just a map and schedule of dates of things that will happen o Dismissed app & directed D to schedule whatever the D wants (don’t need EX reports to schedule)
• 2nd action instead of dealing w litig plan, the P wanted a procedural order so D would have to either (1) proceed w med exam on a deadline or (2) waive his rt to order one
o D ordered to advise the P w/in 2 months whether he waived his rt to have a med exam or must set an appt w/in that time frame; if D didn’t do either, then P was to provide their expert reports
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• Standard of review is correctness for appealing Masters to QB • Expert reports sought by Ds are covered by litig privilege, but
o Rule 5.35 says party w onus of proof must send report first this is stat exception to litig priv o Rule 5.44 P must disclose all prior/subseq reports another exception to litig priv
• These two rules should be able to work together • Masters were incorrect in failing to order P’s experts to produce report before D elected to conduct med exam
o Court ordered P to disclose EX reports they wanted to rely on trial w/in 90 days o P in personal injury claim (or party w/ onus of proof) must disclose report first
COMMISSION EVIDENCE
• Allows you to take ev of W now (Rules 6.21-‐6.27) • Traditionally used w ppl abroad since difficult to bring them here no longer the case (travel easy) • Usually see this now with v sick ppl & v old ppl that may die before trial • Can do this via: (1) Agr bw parties OR (2) Apply to court if parties can’t agree
o For court app, must file app w supporting affidavit re why you need to preserve this ev • When you take this ev, it’s like trial ev (conducted in same setting as Q’ing, but w a couple differences)
o You also have video taken (in add’n to being transcribed) o Party calling the W examines in direct 1st, then the opposing side cross-‐examines (like in trial)
• Then when trial time comes, if person is able to attend court, they will (and video, etc not used) o If person can’t attend, then you apply to court to have that ev admitted as ev
ADMISSIONS
• Where one party serves on the other a “notice to admit” something • When you want the other side to admit certain facts or opinions (like receiving a doc, or saying X to
John Doe on this date, that we met on X day and these things were agreed to) • Idea is to get them to admit something so you do not have to prove it at trial • If they don’t admit it and you prove it at trial, there may be cost conseqs against them • Rules state you don’t have to file, just serve
o In practice, some ppl file (makes sense bc it will serve as evidentiary basis at some pt)
Rule 6.37 • (1) Serve Form 33 on all other parties asking them to admit either a fact/written opinion (attach op to notice)
o Can serve notice to admit for purpose of an OA, summary trial, trial, or interlocutory application • (3) If you receive a notice to admit, must respond w/in 20 days (can get extension but must be in writing)
o When you respond you can: (1) deny a fact or opinion but have to give a reason or (2) object on ground that some/all matters requested are privileged or irrelevant, improper or unnec
May be asking you to admit an opinion (inappropriate) ex: if seeking adm that D is a bad driver “D denies he’s a bad driver. Moreover, P is not seeking an adm of fact”
o If you do not respond w/in 20 days you are deemed to have admitted those facts • (6) Can only amend / w/draw deemed/express adm or denial if parties agree or w court permission (v hard) • (7)Where you made the admission, it can only be used against you for the specific purp for which it was made
o Ex: if was for summary j, they cannot rely on the adm for trial (must submit new notice for amd) • An admission can only be used against the party that agreed to it
o E.g. can't be used against a co-‐D • Can apply to set aside a notice to admit instead of responding
o When you respond, make sure you actually address what they are asking you to admit o You can admit to only some of the facts, don't have to admit to everything in the notice
Rule 10.33 – failure to admit may lead to costs against you if fact proven in court • Failure to admit something that should’ve been admitted is a matter Court can consider in making a costs award
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Davies v Edmonton (City) (ABQB) – unintentional no response to notice to admit (granting extension) • Served w notice to admit; no response as lawyer forgot • Where you failed to respond inadvertently (not intentionally) and there is a deemed admission the court
will grant an extension to reply if you file material in support of your app that shows there is triable issue o IOW, must show the fact isn’t necessarily true
• Court will look at: (1) Prejudice to your client if those adms were allowed to stand & (2) Prej to other side o Court weighs imp of the deemed facts on the case & result to other side if those were taken away
Dwyer v Fox (ABCA) – care more about finding the truth than simply following procedure • Reiterates Davies and adds:
o 1. Pursuit of truth should take priority over the discipline of imprudence Care more about finding the truth than simply following procedure
o 2. Where error is inadvertent, the other side should have their thrown away costs (what they spent) But where error not inadv, penalty must “bite hard” substantial pens (immed payment)
Andriuk v Merrill Lynch Canada Inc – can have notice to admit at any time • Re class action; P files SOC and D wants to put off defence for now and wait for P to get certified as class
action; P then serves notice to admit on D for purps of certification • D took exception to these brings app to set aside the notice to admit citing that it’s premature • Court said no can have notice to admit at any time (app not ltd to trial; can be used to support app, etc)
o These should actually be used more often bc then need to ask less Qs in Q’ing • Will only be struck if there is a good reason and is inconsistent w foundational rules
o It will have to be something that amts to abuse of process before it will strike notice to admit • Ds were also complaining about the nature of the st’s (ex: some were ambiguous)
o Can just respond by saying it’s ambiguous – this is substantive response (don’t need to go to court) o Just have to meet the substance of what you’re being asked
• Court didn’t set anything aside but gave extension of time to respond
CHAMBERS PRACTICE – INTERLOCUTORY APPLICATIONS
-‐ Major litig stages: pleadings, info gathering (Q’ing etc), trial, but along the way there’s parallel proc’d of Chambers -‐ Chambers courtroom where apps heard
• Less formal, use affidavits (no Ws) • 2 divisions of Chambers (1) Family and (2) everything else • Ordinary Chambers (morning) simple orders (<20 mins), ex parte – usually heard by Master
o Start out by asking if there are any consent matters, adjournments, or ex parte apps o Then get to matters on the list o Process: state name; indicate what you want; background; why you want it; terms of the order; then
other side responds; then you get to respond • Special Chambers (afternoon) complex matters (>20 mins), need appt w trial coordinator
o Include briefs (written argument of what you want, etc) If applicant doesn’t file in time off the list; if resp doesn’t can be costs
o Booking: w Masters (M) phone secretary to get dates; w Justices call trial coordinator Practical tips:
• Ordinary Chambers o Nobody reads over the court files before the app (Ms going in cold) o 2 conseqs: (1) Don’t expect M to be up to speed on the file
(2) Bc the stuff may not be part of court file yet, imp to bring extra copies o On the bench, v ltd # of mats if going to cite something, make copy & highlight & pass up to J/M
If more than a handful of cases, go to Special Chambers • Special Chambers
o M/J read over briefs in advance and form impression (briefs are 80% of the game) o Need to be prepared to discuss major issues
-‐ Rule 6.13 for ex parte apps, proc’s must be recorded in case transcript must be made (Court can waive this)
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-‐ Chambers used for: • 1. Interlocutory matters (most common)
o Where you need an order from court to give some direction to litig prior to the trial o Anything that reqs bringing an app (app to amend an action, consolidate matters, w/draw adms, etc) o Do not involve final resolutions (parties need something decided right away)
But may practically bring matter to an end (ex: if party is trying to get conclusive ev in; if rejected then this is v close to being determinative of the issue)
o Rule 6.9 can also be done by phone possible if J/M orders or parties agree & J/M consents (6.10) • 2. OA matter brought to Chambers where entire matter adjudicated • 3. Summary proceedings
o Apps for summary j & summary trial determination of matter on affidavit ev o To determine the proceeding entirely & the J/M will adjudicate the party’s rights.
• (2) and (3) are not interlocutory as they end the matter
Masters
-‐ An officer of the court who has some of the powers of a QB judge (but not a judge) -‐ Derive jur from: (1) s.9 Court QB Act; (2) Judicature Act and (3) Rules of Court -‐ Odd constitutional issue 92(14) of Const Act allows prov to establish PC
• Ms are a s.92(14) judge sitting in s.96 court provinces interpreted s.96 to mean they can appt Ms -‐ Ms can rely on many things re ev aff’s, admission, examinations on aff’s, formal admissions in pleading -‐ M’s jur theoretically spelt out in the rules can figure out what needs to be done by a judge/master
• Summary trial apps need to be brought before a ‘judge’ • Summary judgment rules say you apply to the ‘court’ this can be heard by M or J
-‐ But, this diff bw apps to a court and apps to a judge is not determinative actually set out in s.9 Court of QB Act: • M can do anything a J in Chambers can except for a few things:
o 1. M can’t hear appeals from PC (or anything similar) o 2. M can’t hear apps to vary/rescind the order of a Justice
South Side Woodwork (1979) v RC Contracting Ltd (1989) Ms can’t overrule judges o 3. M can’t hear apps for stay of proceeding after a verdict that was held before a Justice o 4. M can’t hear trials of actions (this is why summary trial must be brought before a J (still a trial)) o 5. M can’t decide disputed or contentious Qs of fact
Unless the parties agree and it’s done in Chambers (on aff ev, not oral) o 6. M can’t hear apps for injunctions (no equitable authority) o 7. M can’t hear apps for old CL writs o 8. M can’t hear anything that must be done by a judge
- Ms currently able to hear summary j apps (not summary trial) no issue to be tried or only issue is dmgs • But this involves deciding Qs of fact (dmgs are Qs of fact) esp if it’s unliq or contested amt
o This is allowed bc s.9 Court QB Act allows M to decide Qs of fact based on aff ev if parties agree • J Brown even if Court QB Act allows it, Ms should not weigh ev (there’s a constitutional problem)
o Purely a judicial fiction only s.96 judges appointed by feds can weigh ev (M’s appoint by prov) o Orr v Fort McKay First Nation if there is disputed Q of fact and cross renders one side
unbelievable, a M can can draw an inference if v obvious BUT J Brown says this is still fact finding
HOW TO MAKE AN APPLICATION
Rule 6.2 – person may make an app to Court that the Court exercise its auth (starting pt)
Rule 6.3 – starting pt: for app to the court & notice of application • (2) Unless the Court otherwise permits, an app to the Court must
o (a) be in the appropriate form, o (b) state the grounds for filing the app, o (c) identify the material or ev intended to be relied on,
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o (d) refer to any provision of an enactment or rule relied on, o (e) specify any irregularity complained of or objection relied on, o (f) state the remedy claimed or sought, and o (g) state how the app is proposed to be heard/considered under these rules.
• (3) Unless court says otherwise, applicant must file & serve on all parties and every other person affected by the app, 5+ days before the app is to be heard/considered, notice of app & any aff/ev in support
-‐ Re (3) court can decide when notice period will be (Rule 13.5) so when you slip up, 13.5 is your friend • Rules can say otherwise as well Rule 7.5: w summary trials, need to give 1 month notice (not 5 days) • Giving notice is also a professional matter in Code of Conduct
Rule 6.6 – respondent’s response • (2) Other side has reas amt of time to provide you w responding material what is ‘reas time’ depends
o Responding ev is usually an aff court can grant leave to hear oral ev but not common
Rule 6.4 – apps w/o notice (aka “apps on no notice”) – eg: ex parte • (1) Despite any other rule to the contrary, notice of an app is not req’d to be served on a party if an
enactment so provides/permits or the Court is satisfied that o (a) no notice is nec, or (b) serving notice of the app might cause undue prej to the applicant
-‐ Ex: to renew SOC, serve ex juris, or Anton Pillar remedy (allows applicant to enter respondent’s prop & seize ev) -‐ Imp w ex parte apps, you must give both sides of the story (good & bad) bc other side isn’t there -‐ General rule is if you can go to the Masters on something, you go to them (Ms matters are appealed to a justice)
Rule 13.3 – how to count the period in days • When counting to/from an event/activity in days, the date on which the event/activity occurs is not counted • Ex: want app heard on Dec 15 Dec 10 is last day you can give notice
Rule 13.4 – how to count the period in months/yrs • (1) When counting to or from a date in months, time is calculated from the date on which the event or
activity occurs in the month to the same-numbered day in a subseq/prev month o (2) If the count ends on the 29th, 30th or 31st and there is no same-numbered date in the
subseq/prev month, the count ends on the last day of the subseq/prev month • (3) When counting to or from an event or activity in years, time is calculated from the date on which the
activity or event occurs in a year to the same-numbered date in a subseq/prev yr o (4) If the count starts on Feb 29th and ends in a yr that is not a leap yr, it ends on Feb 28th of that yr
-‐ Ex: want summary trial heard on May 15 last day to serve is April 15 -‐ Ex: want summary trial heard on Oct 31 last day to serve is Nov 30
Interpretation Act (s.22) – holidays, weekends, & court closures -‐ If the courthouse is closed on date you were intending to have it heard, then you schedule for next day it’s open
• Ex: if Dec 15 is Sat, then schedule for Monday the 17 (not Friday the 14th) -‐ Also count holidays
• Ex: if I serve on Thur Apr 9, app is heard on Tues Apr 14th (we count Good Fri & Easter Mon (13th) as days) • Ex: if I serve on Wed Apr 8, app heard on Tues Apr 14 (bc of Easter Mon)
Rule 6.14 – appealing master’s judgment/order • Don’t have to give reason for the appeal (v easy) appeal to a judge • (2) A notice of appeal in Form 28 must be filed & served w/in 10 days after the judgment/order is
entered & served & returnable w/in a reas time, not exceeding 2 mos, after date the notice of appeal is filed • (3) An appeal from a M’s judgment/order is an appeal on the record of proceedings before the M and may
also be based on add’l ev that is, in the opinion of the judge hearing the appeal, relevant and material • Kelly case the std of review is correctness (lowest std) (note: Ms hear many cases & # of appeals are low)
o Judge hearing the appeal owes the M no deference – entire free hand in determining the appeal
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AFFIDAVITS
-‐ Most apps will require affidavit ev affidavits are ev, so they’re facts, not law or arguments -‐ Must be careful re what legal assistants can swear to -‐ If lawyer swears aff: (1) Risk of being examined on aff
(2) Risk of being disqualified from continuing on case (can’t be both W & advocate on 1 case)
Rule 13.18 – types of affidavits • (1) An affidavit may be sworn on the basis of:
o (a) personal knowledge, or (b) info known to the person swearing the aff and that person’s belief • (2) If an aff is sworn on the basis of info & belief, the source of the info must be disclosed in the aff • (3) If an aff is used in support of an app that may dispose of all or part of a claim, the aff must be sworn
on the basis of the personal knowledge of the person swearing the aff o so must be firsthand ev (otherwise, if it’s not to dispose of all/part of claim, can put in hearsay ev)
Rule 13.19 – lists requirements for affidavits • Aff must be in Form 49, state name of person swearing aff & place of res, written in 1st person, & signed & sworn
Byer's Transport v Terra Mining – for aff on info/belief, no source, no grounds, no good • Comments on an aff based on info or belief must set out the source & the grounds (or else worthless)
Barker v Budget Rent-‐A-‐Car – test for whether something is interlocutory or final • Court found the amendment was interlocutory in nature and was not caught by the hearsay rule in 13.18 • Test for whether it’s interlocutory or not: Does the judgment or order finally dispose of the parties rts • Key: know test for whether something is final or interlocutory if final, not allowed to have hearsay
QUESTIONING ON AFFIDAVIT -‐ If you swear an aff, you may be examined on it by other side (virtually a right)
Rule 6.20 – every party adverse in interest gets to cross-‐examine on aff • (2) Questioning under this rule by adverse parties may take the form of cross examination
Rozak Estate v Demas – scope of what can be examined on aff • Scope of examination on aff can be anything related to app itself
o Ex: if app for summary j, then anything related to the lawsuit is fair game • Qs that are relevant & material to the underlying app will be permitted (if refused, you must answer them) • Undertakings on Q’ing no general prohibition against undertakings during cross examination • Same Q may be asked more than once in different ways
Ray v Rural Municipality of Meota – whole transcript of exam on aff goes in (be careful what you ask)
Ed Miller Service v Caterpillar Tractor – scope for exam is whether it relates to Qs in issue on the app • Re disputed Qs the scope for examinations is whether it relates to Qs in issue on the app
o Like cross-‐exam where you’re not ltd to asking Q in one way – can ask same Q over in diff ways o So saying you’ve answered the Q already isn’t grounds for preventing a lawyer from asking again
CRC-‐Evans Pipeline International Inc v OJ Pipelines Corp – if person swearing aff isn’t a party • If the person swearing the aff is not a party to the app, Court can narrow the scope of examination
Miller J Case – must give a W conduct money to secure attendance • Need to give a W, either w an appt or a court order, conduct money to secure their attendance
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• Re Student loans: aff in support of loan collection was sworn in Que & student wanted to examine W on aff o Must pay her to come to Edmonton from Quebec
• Held: since the student loans office has office in Calgary and the aff was sworn on review, it could’ve been just as easily reviewed by someone in Calgary so can pay conduct money for that
ORDERS
-‐ Result of app in Chambers is an order summarizes the decision -‐ Rule 9.2(1) unless court directs otherwise, the successful party is responsible for preparing the draft -‐ Std app can prepare std form order in advance & bring to court (J/M will sign on spot) -‐ Custom order:
• Need to circulate the draft order to other side for their approval, then submit it to the court for signature o The clerk takes notes at what happens at the app o If the order has been approved by other side then it can be sent to clerk who can sign on behalf of
the J/M (only if the order isn’t signed on the spot) (Rule 9.2) • You can ask for approval of the form of order to be dispensed with (Rule 9.4(2)(c))
o The successful applicant can draft order, submit to court & if court likes the form and it reflects the decision, etc, they’ll sign it w/o any other formality (often used w self-‐reps)
MANAGING LITIGATION
Rule 1.2 – starting pt for parties’ obls in lawsuit (objectives of the rules)
Rule 4.1 – parties resp for managing their dispute & resolution in a timely & cost-‐eff manner
Rule 4.2 – litigants are to act in accordance w Rule 1.2 • Standard cases you are responsible for dealing w it in a reas time • Complex cases need a litigation plan
Rule 4.3 – factors in deciding bw standard or complex case • Factors: claim amt; # of claims; complexity; # of parties; # of docs involved; if EX reports or MEs req’d, 3P claims?
Rule 4.4 – obls of parties in standard cases • Should have mandatory dispute resolution before trial (been suspended for now) • No req for litig plan but can still create one & send to other side; if they don’t agree, you can apply to court
for a procedural order setting time for events (a proc order in std case is a step that moves action forward) o Rules are supposed to be self-‐governing this helps reinforce that
Rule 4.5 – obligs of parties in complex cases • Must w/in 4 months after the parties agree to the categorization, agree on a litig plan • Steps litig plan should set out: date that issues will be identified, & discl of records & Q’ing will be completed, date where all EX reports are served & health care professionals will be obtained, & estimated trial date
• No req for mandatory dispute resolution (presumption it will go to trial)
Rule 4.6 – court can establish/amend a complex case litig plan if there are disputes
Rule 4.7 – monitoring & adjusting dates • (1) The parties must monitor progress in their action & adjust the dates by which a stage or step in the action
is expected to be completed if a party is added to the action or as circs require • (2) On app, Court may adjust/set dates by which a stage or a step in the action is expected to be completed
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Rule 4.8 – court may categorize actions as std or complex • (1) On app, the Court may direct whether an action is to be categorized as a std or complex case • (2) The Court may change the categorization of an action to complex or std at any time
Rule 4.9 -‐ 4.15 (Div 2 in Part 4) – re case management • If a lawsuit needs constant supervision, 4.12 says we can write to Chief Justice & ask that a case
management judge be appointed o This involves meeting this judge on regular basis who will set series of tasks to be accomplished o Can also hear apps over course of lawsuit (v useful to keep litig going & resolve stuff along the way)
• Div 2 in Part 4 also deals with judicial dispute resolution (JDR) o Successful in solving lawsuits (>80%) o Parties will agree on the process & go to court in conference room w their Lawyers o Briefs given to JDR judge & parties say what they can prove & why they should win & get dams o If there are factual disputes,
Rule 4.16 – dispute resolution (currently suspended) • Judicial Dispute Resolution (JDR) v good at resolving lawsuits (>80% success rate) • Meet with JDR judge & parties will agree on process
o Parties show up at court house in conference room (lawyers and clients) o Briefs given to JDR judge & parties say what they can prove & why they should win & get dams o If there are factual disputes, typically JDR judge will say what they think the outcome will be o Gives parties opp to meet face to face in an informal setting
• This judge will not hear the trial (so stuff in JDR won’t carry to trial and cause prejudice) • Normally need discovery & production etc so everyone has good pic of other side’s case
ENTRY FOR TRIAL AND TRIAL
ENTRY FOR TRIAL
-‐ When you want matter scheduled for trial, diff ways of doing it depending on your facts (all done w forms) • 1. Rule 8.4(1) Ask the Court (clerk) to schedule by submitting Form 37
o 8.4(2) Form 37 includes: how many Ws you’ll call, trial dates you need; attach pleadings & relevant orders; & any potential conflicts of interest the judge may have
o Rule 8.4(3) lawyer must certify that: (b) Q’ing is done (c) Expert reports have been exchanged (d) All med exams have been completed (e) Any undertakings done (f) They will be ready for trial by certain date (ex: in 6 months) (g) Any deposits paid (h) All amendments to pleading filed and served (i) Any apps related to the action have been disposed of & no other pre-‐trial steps are req’d
o 8.4(4) If both sides have done (2) & (3), then the clerk must schedule a trial date (6) Usually both parties can’t clerk can make judgement call if L can convince clerk it’ll be
done shortly If clerk is unsure, then clerk must refer to a justice who decides • 2. Rule 8.5 can make app to court for judge to decide on a trial date (use Form 38)
o Attach copy of the form showing what is outstanding (same as above but diff route) o Judge must be satisfied w same things clerk above should be satisfied of then schedules trial date
Rule 8.6 – when you want to cancel/adjourn trial • (1) Once a trial date is set, clerk must send out a notice to every party • (2) A trial that has been scheduled may not be adjourned or abandoned unless:
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o (a) a notice of discontinuance of the action has been filed, o (b) a memorandum of settlement of the action, signed by the parties, has been filed, or o (c) the judge permits.
• (3) A trial date & period of time schedule for the trial may be changed only w the judge’s permission o Shorter days is ok, so always err on the side of more days
• (4) Even if the parties agree you can't change the trial date w/o one of the above (sub (2) or (3))
Rule 8.7 – preparation for trial and changes to date • (1) 3 months or more before the scheduled trial date, each party must:
o (a) confirm to the judge, in Form 39, that the party will be ready to proceed w trial on the date, and o (b) verify or modify the estimated # of Ws and the estimated duration of trial
• (2) If a party proposes an increase in the per of time, the court may allow it or confirm the orig trial dates • (3) If only 1 party confirms readiness, the sched’d date for the trial remains unless judge otherwise orders • (4) If no party confirms trial readiness, the trial date is cancelled • Dispute resolution (DR) matters can’t be set for trial unless parties do mandatory DR (JDR or mediat)
o Last yr, Chief Justice suspended this req (still suspended, but may be back in the future sometime) o JDR v similar to mediator but w a justice at the court house (problem: JDR’s were very hard to get)
Tan v Swyrd – won’t get costs for EX reports served after certifying Form 37 • Personal injury claim; issue relates to certification • Parties fill out form 37 & everyone certifies; part of certification is that they’ve exchanged all EX reports but
they hadn’t at time of signing the cert. They do exchange the reports after signing, and then settle the claim. Part of settlement is paying 63K + interests + costs.
• Issue raised by D: what constitutes costs? • Normally paying someone’s costs means indemnifying them for whatever they paid their EXs
o But D didn’t want to pay for the EX reports bc they were exchanged after Form 37 was submitted • Court Held P is not getting indemnified for EX reports served after certifying From 37
o Lawyers are officers of the court; if you certify something to be true and it’s not, it’s a br of the high std you’re held to so make sure whatever you certify is always true
JURY TRIALS
Rule 8.1 – app must be made to Chief Justice for jury trial • Unless the Chief Justice directs that the mode of trial be by jury, or in part by jury & in part by judge alone,
the trial must be by judge alone (jury trials are very uncommon)
Jury Act – s.17 • What civil matters can be heard by a jury:
o 1. Defamation, false imprisonment, malicious prosecution o 2. Actions founded on any tort or K in which the amt claimed > amount prescribed by Regs (10,000) o 3. Action for the recovery of prop the value of which > amt prescribed by Regs (75,000)
• Test if it might involve a prolonged examination of docs or accts that in opinion of justice cannot be made by a jury then even if matter had been directed to be made by jury, it will be tried by justice (no abs rt to jury)
Rule 8.3 – must pay a deposit for a jury trial • (almost identical to s.18 of Jury Act) • If you get a jury trial, you have 10 days from when it was granted to pay a deposit to cover jury costs • If deposit for jury expenses is not paid, trial must proceed w/o a jury unless Chief Justice otherwise orders
Shaw v Standard Life Assurance Co (ABQB) – granting a civil jury trial is an exercise of discretion • If you pass test in s.17 of Jury Act have prima facie rt to jury trial
o If don’t pass, you don't have a prima facie right but court still has discretion to give you one
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• Other side then has the burden of proving the matter should not be heard by a jury (BOP) • Re inconvenience ability of a jury to record, comprehend, collate the ev and make reas determination
o Fact specific, in some cases meeting one of the following criteria might be enough • 5 factors for considering inconvenience
o 1. Prolonged examination of docs (amt of time it would take jury to study the docs & complexity) o 2. Prolonged examination of accts (complex accounting info (ex: earning capacity issues) o 3. Scientific or technical info (where EX ev is beyond competence of the average juror) o 4. Long investigation (length of trial, # of Ws, etc) o 5. Complexity (must establish ev of actual complexity; ex: formation of K, privity of K, econ loss, etc)
ATTENDANCE OF WITNESSES AT TRIAL
-‐ If W doesn’t attend & has no lawful or reas impediment, W can be subj to all kinds of things • Penalty or fine; liable to an action from whoever subpoenaed you
-‐ If serving outside juris Interprovincial Subpoena Act
Rule 8.8 – notice to attend as W at trial • (3) Must serve notice to attend (in Form 40) 20 days or more before the trial date (can serve on parties too) • (2) If W has lawyer, you must serve the lawyer as well; also serve your own client • (4) Serve by personal service (same method as serving commencement docs see pg. 18) • (5) Must also provide allowance ($100/day + travel, hotel & meals) service no good w/o allowance
Rule 8.9 – if W does not attend, court has broad authority to do whatever it wants
JUDGMENTS AND ORDERS
-‐ Usually you will not prepare any form of judgment until it has been granted • Judgment final determination of a matter that is written
-‐ But if it's an order (arising from interloc matters), you’d likely draft before going to chambers and have it ready -‐ Morning Chambers (must be >20mins) can just show up (as long as you give proper notice – Rule 6.3, p.51)
• If ex parte, then you’ll always have a form of order sets out what you want order to say o Ex: extend time to serve SOC for 3 mos o Bring to chambers; say I’m bringing up a form of order; M then signs; bring downstairs & get it filed
• If contested matter or in special chambers, o Go back to office & draft the order then circulate to other side who’ll approve the form/content o Other side then has to “approve as to form & content” & sign; then send to court house to get filed
• Note: Rules use “enter” – this just means “file”
Rule 9.1 – what judgment/order should look like • Judgments/order should incl date & location it was pronounced, name of M/J who made it, & date of entry
Rule 9.2 – drafting the judgment/order • (1) Successful party is resp for drafting the j/o unless court directs otherwise (parties can agree otherwise) • (2) 10 days to draft & file the order after announcement • When you get the order from the other side, you can either accept or object (but provide reasons) • If a party does not accept/reject w/in 10 days then the successful party can get the form entered auto
Rule 9.3 – court can settle terms of judgment/order if there’s a dispute about the contents
Rule 9.4 – a judge can sign the order or the clerk can enter it (stamped and filed) • Entering the order is what triggers any appeal periods that might apply for the filing party
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Rule 9.5 – must enter judg/order w/in 3 mos (except w Court’s perm w app & notice to all)
Rule 9.6 – judgment/order takes effect when it’s pronounced • Regardless of when j/o might be entered, it takes effect when it's pronounced unless court says otherwise
Rule 9.7 – certified copy of a judgment/order has same effect as orig • On entry of a j/o, the clerk must, w/o add’l charge, certify a copy of it for the party who enters the j/o
Rule 9.8 – once order filed, must serve on other party • After order has been filed you must serve it again on the appropriate parties • Imp bc service trigger LP for appeal (if not served right away, you’re extending LP)
Rule 9.12 – court can correct a mistake in a j/o arising from accident/omission
Rule 9.13 – a judge can vary a judgment/order any time BEFORE it’s entered • Any time before the j/o is entered, the court can (a) vary the j/o, or (b) on app, and if the Court is satisfied
that there’s good reason to do so, hear more ev & modify the j/o • Court can change reasons for an order after hearing more ev, which may help w appeals
Rule 9.14 – further or other order after judgment/order is entered • On app, the Court may, after a j/o has been entered, make any further or other order that’s req’d, if:
o (a) doing so does not require the orig judgment/order to be varied, and o (b) the further/other order is needed to provide a remedy to which a party is entitled in conn w the j/o
Rule 9.15(4) – court may set aside, vary or discharge interloc order • (4) The Court may set aside, vary or discharge an interlocutory order
o (a) bc info arose or was discovered after the order was made, o (b) w the agr of every party, or o (c) on other grounds that the Court considers just.
• Often used with Anton Pillar orders or interlocutory orders where something needs to be frozen
Rule 9.22 – satisfaction of judgments/orders • On app (using Form 41, filed & served on parties), Court may make an order that a j/o has been satisfied • This satisfaction of judgment is incl’d on the court file (proof that a judgment has been fully paid/satisfied)
COSTS
-‐ Gen rule: when we say “costs” it refers to your taxable costs – these are tariff fees (in schedule C) • Ex: you file SOC; it cost the client 7.5K but on schedule C they may only get 1.5K ($ the further along)
-‐ This is not an indemnity • Solicitor-‐client costs are full indemnity (get back what you paid the lawyer – rare) • Ex: alleging fraud may lead to court giving solicitor-‐client costs
-‐ Winner usually gets costs Court has lots of discretion (don’t have to use schedule C) -‐ Court considers settlement offers when dealing w costs (privileged -‐ not to be disclosed until after trial judgment)
INTEREST
1. Governed by the Judgment Interest Act (JIA) • 2 options for pleadings:
o 1. Interest pursuant to Judgment Interest Act o 2. Interest pursuant to K’al provision (see #3) o Always plead the Act in alternative just in case there is a problem w the K’al provision
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2. Successful party gets it (almost universally) • Interest runs from the accrual of the cause of action to judgment
o Ex: neg interest would accrue from the br of duty; Ks starts from the br • Depends on the nature of the claim – 2 categories:
o 1. If claim is debt or liquidated demand s.4(2) JIA The interest you get is the interest set by the Regulations (1.1% presently) Intended to mirror commercial rates
o 2. If claim is damages s.4(1) JIA 4% flat • Often will have more than one type of claim interest rate may be diff for the 2 types of claims
o Ex: tort – will have gen dmgs & monetary claims (special dmgs) 3. The interest from the date of judgment to date it’s satisfied is the same interest as set by the Regulations 4. JIA governs sits where there aren’t agr’s (ex: Visa sues for debt; int governed by the cardholder agr (10%)
• Lending agr’s (Ks) can cover the field and govern instead of JIA • Once they sue you, they’re entitled to card rate until they get judgment; then the Regulation rate kicks in.
5. Have to claim interest in the pleadings (even though it’s automatic) • Rule 13.6(2)(c)(iii) Put in the ‘Relief Claimed’ part of the SOC/OA • If asking for interest not assoc w damages just apply JIA (don’t need to state anything further) • If asking for interest assoc with damages must put material facts in pleadings that give rise to claim
(just asking for interest isn’t enough) 6. Exceptions [s.2(2) Judgment Interest Act when the court shall not order interest]
• A. 2(2)(h) Act doesn’t apply to K’al interest (agr bw the parties) • B. 2(2)(b) It’s simple interest, not compounded interest (don’t get interest on interest)
o But residual discretion of court to compound if appropriate to cure the harm • C. 2(2)(d) Don’t get interest on cost award • D. 2(2)(c) No interest on punitive or exemplary damages
-‐ Both the empowering section [2(1)] and the exceptions section [2(2)] use mandatory type language • 2(1) Court shall award interest in accordance with this part • 2(2) Court shall not award interest in these circs • 2(3) Preserves a discretion in the court to shorten/lengthen the time for interest or give no interest
o So this opens up the door for discretion despite mandatory language
Aetna Insurance Co v Canadian Surety Co (ABCA) – CA will not usually alter TJ’s interest award • CA will not interfere w TJ’s decision on interest award unless there was an error of law, but if they
make a substantial change then they will reconsider interest
Meehan v Holt – if faced w interest claim, try to argue opposing interest for the full time • Personal injury action took 11 years to get to trial; judge said it should’ve gone sooner
o Used discretion in 2(3) and gave 7 years interest instead • Note: If you’re D & faced w interest claim, think about P’s conduct in the action & make an argument
opposing interest for the full time
SETTLEMENT OFFERS
-‐ These are privileged & not disclosed until after judgment issued at trial (judge doesn’t know about them) -‐ 2 types:
• 1. Informal Offers a letter to other side (ex: over the phone/letter saying “will you take this?”) o Don’t have to follow the Rules (but can still use them re enforcement etc)
• 2. Formal Offers (FO) take the format of the court form (fill in blanks & governed by the rules) o Not filed, just exchanged
Rule 3.10 – formal offer rules don’t apply to OA unless parties agree otherwise • Formal offers rules don't apply to proceedings started by OA unless parties agree otherwise
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Rule 4.24 – when you can serve/withdraw a formal offer • (1) You can serve a formal offer anytime after SOC filed but 10 days or more before whatever proceeding
your offer relates to (ex: trial, summary trial, app, etc) • (2) To be valid, a formal offer must be in Form 22 and:
o Deal w interests & costs in your offer o Say how the offer can be accepted (although the rules provide for that) o Notice of the cost consequences specified in Rule 4.29
• (3) A valid formal offer must stay open for acceptance for 2 months after serving it (but can be longer) o If you served it prior to summary or trial, it's w/drawn at the start of the trial (so 2 mos or trial)
• (4) A valid formal offer to settle may not be w/drawn unless o the Court first gives permission for the w/drawal, which may be given only if the Court is satisfied
that there are special circs that justify w/drawal, and o the party who made the offer serves written notice of w/drawal on every party who received it
Rule 4.25 – acceptance of the offer • (1) A FO to settle an action or a claim in an action may only be accepted in accordance w this rule • (2) At any time a FO to settle remains open for acceptance or before it’s w/drawn, a party to whom the
offer has been made may accept the offer by o (a) filing the offer & the acceptance of it, and o (b) serving on the party who made the offer notice that
(i) the offer’s been accepted, & (ii) the terms of any judg/ord in the offer have been agreed to • (3) After the filing and service, a party may
o (a) apply to Court for j/o in accordance w the terms of the FO to settle [can also be used for inf offers] o (b) continue the action in re of any matter not covered by the judgment/order, and o (c) continue the action against any party who is not a party to the settlement.
Rule 4.26 – can apply to court re costs • If FO to settle & acceptance filed under rule 4.25 do not deal w costs, either party may apply to the Court for
an order under rule 10.31 (“court-‐ordered cost awards”)
Rule 4.27 – a FO is made w/o prej & is not an admission of anything, unless agr’d otherwise
Rule 4.28 – FO is kept confidential… • (1) Subj to rule 4.24(4), a FO to settle is kept confidential and not disclosed to the Court until
o (a) it is accepted, or (b) the remedy for the claim has been decided (judgment issued)
Rule 4.29 – cost consequences of FOs • If Plaintiff makes FO & D doesn’t accept it:
o If P’s judgment at trial beats their own offer D must pay P double their costs from all the steps taken from the date they served the FO
• If Defendant makes FO & P doesn’t accept it: o If P wins, but wins less than D was willing to pay in FO, D gets costs incurred from date FO was served o If P loses at trial, D gets double costs from date D served the offer
-‐ If you give an informal offer, the outcome is very similar to FOs if you can show the court that you were willing to make a fair offer, the court may give you more costs
Davis v Caproco Corrosion Prevention Ltd – formal offer rules apply to appeals • If your matter gets appealed, you can give FO to try & avoid appeal cost consequences are the same
The following cases are inconsistent w each other: (we don’t know what the answer is) • Key issues: whether or not FO cost conseqs will apply where you served a FO for the full amt of the claim • Must there be a true element of compromise in order for the offer to be a FO in order for cost conseqs to apply? • To reconcile these, try and look at whether a true compromise is being made (go beyond the cost conseqs)
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Jones v Trans America Life Insurance Co of Canada – FO for full value of claim & cost conseqs apply • Full value of claim is allowed, and the cost conseqs can still apply
o Nothing in the rules that req offer to be less than full amt (doesn’t have to be compromise)
Allen (Next Friend of) v University Hospitals Board – FO for full value not a genuine offer • Full value of claim plus costs cannot be considered a genuine offer bc there is no compromise • Giving up interests and costs as a term of the offer is not enough either
ALTERNATIVE ROUTES TO TRIAL
-‐ Now the most imp jur of the court bc not everyone is entitled to their day in court (Ls are expensive, etc) -‐ These give the court discretion to decide which cases need to go to trial
• 7 ways to do this: o 1. Striking out pleadings (strike for significant deficiencies) o 2. Summary judgment o 3. Summary trial o 4. Trial of particular Qs or issues o 5. Delay o 6. Security for Costs o 7. Discontinuance of Action
STRIKING OUT PLEADINGS
-‐ App to strike part or all of pleadings for significant deficiencies • If court strikes out entire pleading, then no action against you • Test a claim will be struck if it’s plain and obvious, assuming the facts pleaded to be true, that the pleading
discloses no reas cause of action [R v Imperial Tobacco Canada Ltd] o Must have strong, clear cut case to succeed on this (v difficult) – something must’ve happened to
make amendment to pleadings futile (ex: past LP) o Other approaches for success facts pleaded don’t disclose cause of action known to law
-‐ This is not commonly used
Rule 3.68 – court options to deal w significant deficiencies • (1) If the circs warrant & a cond under sub (2) applies, the Court may order one or more of the following:
o (a) that all or any part of a claim or defence be struck out; o (b) that a commencement doc or pleading be amended or set aside; o (c) that judgment or an order be entered; o (d) that an action, an app or a proceeding be stayed.
• (2) The conds for the order are one or more of the following: o (a) the Court has no jur; o (b) a commencement doc (CD) or pleading discloses no reas claim or defence to a claim; o (c) a CD or pleading is frivolous, irrelevant or improper; o (d) a CD or pleading constitutes an abuse of process; o (e) an irregularity in a CD or pleading is so prejudicial to the claim that it is suff to defeat the claim
• (4) The Court may o (a) strike out all or part of an affidavit that contains frivolous, irrelevant or improper info; o (b) strike out all or any pleadings if a party w/o suff cause does not
(i) serve an affidavit of records in accordance w rule 5.5 (p.35), (ii) comply w rule 5.10 (p.36), or (iii) comply w an order under rule 5.11 (p.36).
Reece v Edmonton (City) – claim can be struck as being an abuse of process • Some ppl brought an action stating the city was in br of Animal Protection Act
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• Issue: could the claim be struck for abuse of process • Rule 3.68 abuse of process is an avail grounds (2) lists things court can consider as a basis for striking • Held: it was struck as being an abuse of process • Dissent: It wasn’t plain/obv that the claimant could not succeed (but he was using old test, not new test)
Joly v Pelletier • Court will dismiss action as being frivolous/vexatious, only where it’s plain/obv that the claim won’t proceed • Actions were struck and dismissed because:
o Neither of the pleadings disclose an action (Joly is not a person bc he claims he is a Martian) o Claims were frivolous and constituted an abuse of process:
No claim for damages, patently ridiculous claims, & many of the Ds were not parties
SUMMARY JUDGMENT
-‐ Bc this app is disposing all/part of the claim, Rule 13.18 says the aff ev used to support claim must be firsthand knowledge (can’t be hearsay) -‐ Litigants must put “best foot forward”
• No defence to say the ev may develop in my favour as lawsuit unfolds • Can’t imagine what ev will be, but must decide on what the ev is • Ev that can support the app [Rule 6.11] aff ev, admissions, oral ev (w court’s permission), etc (options
widened by Windsor) o Note: Masters prohibited from hearing oral ev pursuant to Court of QB Act
Old Pre-‐Windsor test was it plain and obvious that there isn’t a lawsuit (high threshold – crim std) • Now use Windsor test (see below) can a disp that’s fair to both parties be made on the existing record?
Rule 7.3 – key summary judgment rule • (1) Party may apply to Court for SJ in re of all or part of a claim on one or more of the following grounds:
o (a) there is no defence to a claim or part of it; o (b) there is no merit to a claim or part of it; o (c) the only real issue is the amt to be awarded.
• (2) The app must be supported by an aff swearing positively that 1+ of the grounds described in sub(1) have been met or by other ev to the effect that the grounds have been met.
o App must be supported based on actual knowledge, not just belief • (3) If the app is successful the Court may, w re to all or part of a claim, & whether or not the claim is for a
single & undivided debt, do one or more of the following: o (a) dismiss 1+ claims in the action or give judgment for/in re of all/part of the claim or for a lesser amt; o (b) if the only real issue to be tried is the amt of the award, determine the amt or refer the amt for determination by a referee;
o (c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circs require
- As a respondent for SJ issue, you just need to show conflicting ev (why this needs to go to trial)
Hyreniuk v Mauldin (2004 SCC)*** • Consideration of ON Rule 20 that gives judges ability to weigh ev to summarily deal w lawsuits • Some Ls said this meant Masters couldn’t do summary j apps bc can’t weigh facts AB C. Justice said they can
Windsor v CP Railway (2014 ABCA)*** • Based on Hyreniuk has significantly changed the law of summary j
o ABCA didn’t have to follow it bc was ON rule but chose to fundamental idea re the rules is the same • When summary j first came out, it used same test as striking pleadings so v high bar • As result of this case, no longer as hard encourages courts to grant summary j if possible • Test for summary j if there is no genuine issue for trial (same lang under old test but now diff meaning)
o Examine the record to see if a disposition that is fair & just to both parties can be made on the existing record
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o Can make a fair determination if: 1. Allows judge to make nec findings of fact 2. Allows judge to apply the law to the facts 3. Where it’s a more proper & expeditious and less expensive means to achieve a just result
o Wide test that gives court more discretion • As a result, now more emphasis on respondent for app for summary j essentially must respond • From a Master’s perspective, it raises a CON issue (see pg. 51)
Leeds v Alberta (Minister of the Environment) – no summary j if matters raise any Q of fact or law • Court should not summarily dispose of matters that raise any real Q of fact or law. • Presence of any triable issue dictates that the matter should be heard at trial
BA Capital Inc v Stream Oil & Gas Ltd • Summary j should not be granted if there is conflicting affs/ev on known facts
o If court has to assess quality & weight of ev then it has to go to trial • There may be a CON prohibition to Masters weighing ev Note: this may be diff now w the new test • Note: Masters can make decision on contentious matters of fact on aff ev if parties agree (Court of QB Act)
SUMMARY TRIAL
• Most summary trials have viva voce ev • Idea it is that instead of having the expense of a full trial, it is focused on specific issues and the ev
can be weighed (issues are tried); as opposed to summary j where issues are not tried • Burden of proof in a summary trial, is the same as a trial • You must apply for summary trial (ST) under Rule 7.5
Rule 7.5 – application for judgment by way of ST • Use Form 36, specify issues TBD or claim as a whole TBD, incl reasons why it’s suitable for ST, incl aff of ev,
& incl a hearing date scheduled by the clerk (1+ mos after service of notice of the app on the respondent)
Rule 7.6 – respondent must file/serve ev • The respondent to an app for ST must reply 10+ days before the scheduled date • R must file & serve on applicant any aff or other ev on which they intend to rely at the hearing of the app
Rule 7.7 – expert reports are allowed unless agreed otherwise or judge orders otherwise
Rule 7.8 – objecting to app for judgment by way of ST • (1) An objection to an app for judgment by way of ST may be made on the following grounds:
o (a) the issue or Q raised in the claim, or the claim generally, is not suitable for a ST; o (b) a ST will not facilitate resolution of the claim or any part of it.
• (2) Respondent must file & serve applicant a notice of objection & anything they will rely on 5+ days before objection is scheduled to be heard
• (3) The judge must dismiss the objection if, in the judge’s opinion, o (a) the issue or Q raised in the claim, or the claim generally, is suitable for a ST, and o (b) the ST will facilitate resolution of the claim or a part of it
Rule 7.9 – what happens after ST • (1) Judge can (a) dismiss app for judgment, or (b) grant judgment (either on an issue or generally) • (2) Judgment must be granted after a ST unless:
o (a) the app is dismissed, o (b) on the ev before the judge, judge is unable to find the facts nec to decide the issues of fact/law, o or (c) the judge is of the opinion that it would be unjust to decide the issues on the basis of the ST
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Rule 7.11 – order for trial • A judge, at any stage of a ST app, may (a) order the trial of the action generally or on a Q or issue, and give
directions w re to preparation for trial & a trial date, or (b) give any procedural order that the circs require
Bonsma v Tesco Corporation • Court says new rules have not made old case law inapplicable to ST’s • Foundational rules should be taken as encouraging summary trial • No reason why self reps can’t participate in STs • Principles case should have type of facts w/in which a judge can prefer one set of facts over the other
and come to factual findings • Duff - Test for Suitability for ST
o 1. Amt involved in the lawsuit o 2. Complexity of the matter (broad overview of facts, issues, etc) o 3. Urgency o 4. Any prejudice likely to arise due to delay o 5. Cost of taking the case to full trial in relation to the amt involved (this factor usually favours STs) o 6. The course of the proceeding o 7. How many Ws will be cross examined o 8. Whether there is a real possibility that one party can bolster its ev by discovery of the other
parties docs and Ws o 9. Whether the resolution will depend on assessing credibility
Islam v Mozumder – best procedure is to get the parties to agree to hold a ST 1st before the hearing
TRIAL OF PARTICULAR QUESTIONS OR ISSUES
-‐ Rarely used but usually w/ sits where parties want to separate liability & quantum • Hold a liability trial bc D is confident P can’t establish liability prevents court from having to sit through
long ev re quantum of dams • The usual obstacle is an overlap bw the 2 issues that a party wants to split
Rule 7.1 – app to resolve particular Qs or issues • (1) On app, the Court may
o (a) order a Q or an issue to be heard or tried before, at or after a trial for the purpose of (i) disposing of all or part of a claim, (ii) substantially shortening a trial, or (iii) saving expense
• (2) If the Q is a Q of law, the parties may agree o (a) on the Q of law for the Court to decide, o (b) on the remedy resulting from the Court’s opinion on the Q of law, or o (c) on the facts or that the facts are not in issue.
• (3) If the Court is satisfied that its determination of a Q or issue substantially disposes of a claim or makes the trial of the issue unnec, it may
o (a) strike out a claim or order a commencement doc or pleading to be amended, o (b) give judgment on all or part of a claim and make any order it considers nec, o (c) make a determination on a Q of law, or o (d) make a finding of fact
Bailey v Guaranty Trust Co of Canada – decision made at this type of app becomes res judicata • If judge makes determination of fact or law under this rule, it is binding as if it were made at trial (res jud) • Issue cannot be retried at trial
Gallant (Litigation Guardian of) v Farries – can’t split if overlapping issues • Party wanted to split liability & quantum court held no as there were overlapping issues • 2 considerations: judicial economy & consistent results
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Edmonton Flying Club v Edmonton Regional Airport Authority (ABCA) • Pt 1 was re injunction & pt 2 re dams – wanted to split can’t bc overlap (needed to deal w inj to deal w dams)
DELAY
-‐ 2 rules for app to strike for delay: (1) Rule 4.33 and (2) Rule 4.31 -‐ No positive obl on the P to advance the D’s action
Rule 4.33 – mandatory rule (no discretion) • (1) If 3+ yrs has passed w/o a significant advance in an action, the Court, on app, MUST dismiss the
action as against the applicant, unless o (a) Parties to app expressly agreed to the delay, o (b) The action has been stayed or adjourned by order, an order has extended the time for advancing
the action, or the delay is provided for in a litig plan, o (c) The applicant did not provide a substantive response w/in 2 mos after receiving a written proposal
by the respondent that the action not be advanced until >3 yrs after the last sig advance in the action, o (d) An app has been filed or proc’d have been taken since the delay and the applicant has participated
in them for a purp and to the extent that warrant the action continuing • (2) If Court refuses app to dismiss action for delay, it may still make whatever order appropriate • (3) The following pers of time are not used in calculating the 3+ yrs in (1): (a) max 1yr bw service of SOC on
applicant & service of SOD, & (b) max 1yr bw written proposal in (1)(c) & a subst response by applicant -‐ If successful, get costs of the app and action -‐ What advances the action?
• 1. If the event in the lawsuit is mandated in the rules (ex: filing SOD, filing AOR, etc) • 2. If the event in the lawsuit is contemplated but not req’d by Rules then court looks at quality of the step
and see if it brought it closer to trial o Ex: one step may not bring closer to trial; but a whole bunch together might have effect of advancing
Rule 4.31 – wider and more discretionary • Highly discretionary no fixed amt of time • (1) If delay occurs in an action, on app the Court may
o (a) dismiss all/any part of a claim if Court is satisfied that the delay has resulted in sig prej to a party, o or (b) make a procedural order or any other order provided for by these rules
-‐ Old test [Raven v Airdrie (City)] had to show: (1) delay is inordinate; (2) inexcusable & (3) results in serious prej not curable by costs award or procedural order (but 4.31 was amended July 1 2013 have a new test) • New test sub(2) if you have an inordinate & inexcusable delay, court can infer serious prej (rebuttable pres)
-‐ “Prej” = loss of docs, death of a W, etc, that has resulted during the period of delay (prej must be tied to delay) -‐ Given short period of time in 4.33, this rule is of less use (need extreme circs to rely on this)
Sucker Creek First Nation v Canada (AG) • Forbearance agr or standstill agr can stop the clock but it must be express (not inferred)
SECURITY FOR COSTS
-‐ 2 grounds (1) s.254 ABCA & (2) Rule 4.22 -‐ ABCA usually the starting pt & 4.22 are factors the Court considers -‐ Needs to be made promptly and early in litigation
• Prepare a pro forma bill of costs look at Schedule C and estimate the steps you’ll take & the costs • Then get other side to post that amt (may end the suit by est’ing an obstacle the other side can’t overcome)
-‐ The court has flexibility • If there are inds behind the corp that know they won’t be liable (corp will be liable), court may lift veil • If it’s a shell corp & court thinks lawsuit should go ahead, can order s/h’s to put up the money
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AB Business Corps Act (s 254) – starting pt • In any action or other legal proceeding in which the P is a body corporate, if it appears to the court on
app of a D that the body corporate will be unable to pay the costs of a successful D, the court may order it to furnish security for costs on any terms it thinks fit
Rule 4.22 – factors the court considers for security for costs order • Court may order party to provide sec for payment of a costs award if it considers it just & reas, taking into acct:
o (a) Whether it’s likely the applicant will be able to enforce an order/judgment against assets in AB o (b) Ability of respondent to pay the costs award o (c) Merits of the action o (d)Whether an order to give sec for payment of a costs award would prej respondent’s ability to cont action o (e) Any other matter Court considers appropriate
Amex Electrical Ltd v 726934 AB Ltd • Disagreement about how ABCA & 4.22 co-‐exist held: ABCA is self-‐contained • Court holds that s.254 ABCA is discretionary since it uses “may”
o Comes up w factors that mirror, and add to, 4.22 • Court says technically the 2 are sep but practically it’s the factors in 4.22 that prevail
Autoweld Systems Ltd v CRC-‐Evans Pipeline International Inc • P should show they can pay to avoid sec for costs
Koerner v Capital Health Authority – sec for costs can be awarded on appeal • Sec for costs can be awarded on appeal but it’s an injunctive effect court can adjust the amt that’s approp
VOLUNTARY SETTLEMENT & DISCONTINUANCE OF ACTION
-‐ When P decides no longer proceeding, P files a discontinuance of action usually done when suit settled • Discontinuance is filed at courthouse, once done the lawsuit is over
-‐ Settlement usually consists of: • 1. A Release K that states you won’t pursue this in the future (informal/private) • 2. Filing a Discontinuance of Action can do this voluntarily up to trial
o If P does that, other side can have costs assessed (4.36(4)) releases prevent this from happening
Rule 4.36 – main rule for discontinuances • When can you get a discontinuance
o (1) If no trial date is set o (2) If trial date has been set, only w court permission and approval of parties o (3) If trial has started can only get it w court's permission
• (4) A discontinuance under this rule must be in Form 23 and must be filed & served on all parties &, after the P serves notice of discontinuance, the D is entitled to a costs award against the P for having defended against the discontinued claim
• (5) The discontinuance of the action may not be raised as a defence to any subseq action for the same or substantially the same claim IOW, a discontinuance is not the same as a dismissal
Rule 4.37 – D filing discontinuance of SOD • (1) A D may discontinue the whole of a SOD by filing a notice of discontinuance in Form 24 & serving it on P • (2) On filing the notice of discontinuance,
o (a) the D is in default of defence, and o (b) the P is entitled to a costs award against the D for having responded to the discontinued defence
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CIVIL CONTEMPT
-‐ Where you as lawyer, anybody else in courtroom, or anyone involved in action, do something they were ordered not to do or failed to do something they were supposed to do or ordered to do
Schitthelm v Kelemen • If granted an order re the other side, must serve them (won’t get contempt order if can’t prove service) • To get contempt, need:
o 1. An existing req of the court o 2. Notice of the req to the person o 3. An intentional act (or failure to act) that constitutes a br of the req w/o an adequate excuse
• Ex: refused to answer undertaking go to court first to get an order to compel them to answer the undertaking and if they don’t, then get an order for contempt of that order
-‐ Proceedings • Bc contempt is quasi-‐criminal, the onus of proof is BRD accuser must prove the 3 elements BRD • The court will always attempt to purge contempt
o Party should first rectify whatever they were supposed to do (before appearing in court) o If purged, then you’ll get nothing/slap on wrist
Contempt can arise in diff ways: • 1. Might arise in courtroom (less common) • 2. You obtain order from court and person breaches it (more common) (ex: not following an injunction) • 3. Someone refuses to answer an undertaking or fails to attend at Q’ing (see undertaking ex above) • 4. Failure of lawyer to make full disclosure on ex parte app • 5. Publishing criticisms on the honesty and motivations of the court
o You can disagree and say it’s stupid but can’t Q the motive and honesty of the court • 6. If you deter a W from testifying • 7. If you try to deter a party from defending a lawsuit and your motives are inappropriate
o Fine to dissuade if you think lawsuit will fail, etc
Rule 10.51 – gives court auth re contempt • Court may grant an order in Form 47 that requires a person to appear before it, or may order a peace officer
to take a person into custody and to bring the person before the Court, to show cause why that person should not be declared to be in civil contempt of Court.
Rule 10.52 – process of how to get someone held in contempt • (1) Before an order declaring a person in contempt of Court is made, notice of the app in Form 27 for a
declaration of contempt must be served on the person in the same manner as a commencement doc (pg.18) • (2) If a L accepts service of a notice for app to declare client in civ contempt, must pass it on ASA practicable • Only a judge can find someone in contempt, a Master cannot (sub (3)) • (3) A judge may declare a person to be in civil contempt of Court if
o (a) the person, w/o reas excuse, (i) does not comply with an order, other than an order to pay money, that has been served in accordance w the rules for service of CD’s or of which the person has actual knowledge,
(ii) is before the Court and engages in conduct that warrants a declaration of contempt, (iii) does not comply with an order served on the person, or has actual knowledge of, to appear before the Court to show cause why the person should not be declared to be in contempt,
(iv) does not comply with an order served on the person, or has actual knowledge of, to attend for Q’ing under these rules or to answer Qs the person is ordered by the Court to answer,
(v) is a W in an app /trial and refuses to be sworn or refuses to answer proper Qs, or (vi) does not perform or observe the terms of an undertaking given to the Court,
o (b) or an enactment so provides.
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Rule 10.53 – punishment for being held in contempt • Prison, fines, action struck etc (v wide discretion)
RES JUDICATA (“already been judged”)
-‐ Re-litigating the same Q or issue • If there is potential for res judicata you make an app to the court to have the claim struck out.
-‐ If you can meet one of the estoppel categories [(1) issue estoppel & (2) cause of action estoppel] then the matter is considered an abuse of process and the matter can be struck out • res judicata are abuse of processes, however you can have an abuse of process w/o being res judicata if the
first matter has not yet been decided (ie. two concurrent matters for the same issue) • Abuse of process is about preventing people from taking advantage of the system
CAUSE OF ACTION ESTOPPEL
-‐ There can only be one judgment per cause of action, thus must incl all claims in a single cause of action • An amendment that adds a cause of action to an existing claim cannot be permitted if the Limitations Act
would restrict that action from being made independently • Ex: MVA – P brings action in PC for damage to car dealt w at trial or there was settlement
o P then sues in QB for personal injury this 2nd action barred o Can only have 1 cause of action for this accident neg (can’t be split into 2 diff actions)
Cahoon v Franks (leading case) – dams from a single tort must be assessed in 1 proceeding • No cause of action for injury & then sep action for dam to goods dams from single tort must be assessed in 1 proc • Thus, must be aware of all damages from a tort before commencing action (esp imp for insurance clams)
ISSUE ESTOPPEL
-‐ Broader than cause of action estoppel and easier to establish specific Q raised by a matter • Essentially asks if this is a repeat of an earlier dispute
Angle v Minister of National Revenue – test for issue estoppel • 3 element test re whether issue estoppel applies:
o 1. If the same issue/Q was decided in the earlier case, o 2. If the first decision was final, & o 3. If the parties are the same o Court still has discretion if IE raised (based on fairness)
Penner v Niagara • Penner arrested; he filed complaint under Police Services Act alleging misconduct hearing officer found
cops not guilty; ON Civilian Commission reversed (cops guilty); then on appeal the Divisional Court restored first decision (cop not guilty)
• Penner also commenced civil action in ON Superior Court seeking damages o Following Divisional Court’s decision, cops wanted action dismissed based on IE.
• Held: Ont Sup Court & OCA o Motions judge found 3 reqs of IE met IE applied (judge declined to exercise discretion to refuse IE) o OCA affirmed IE would not work; an injustice in circs
• Held: SCC Maj o Appeal allowed IE should not apply in circs (slim maj) o IE can be unfair in 2 ways:
1. A prior proceeding may itself be unfair 2. May be unfair to bar re-‐litigation of a Q, even if prior proceeding was fair, such as when there are significant diff in purps, processes and stakes in the 2 types of proceedings
• OCA failed to consider sig diffs bw purp of disciplinary proceeding and purp of civil proc
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It’s open for the court to find IE in a lawsuit where the issues had been determined in a disciplinary hearing (non-‐court proceeding).
ABUSE OF PROCESS
-‐ No clear legal test exercise of court’s discretion based on facts (diff than the 2 types of estoppel) -‐ Focus: integrity of the judicial system not looking at prejudice to the parties as much
• Can use this to strike down claims that don’t meet strict reqs of the 2 estoppels -‐ Ex: John sues court 50 times in last 4 years and none successful -‐ Can bring app to court to have claim struck, not based on merits, but bc it’s AoP rely on 3.68
Rule 3.68 – used to strike for abuse of process (see pg.61) • When seeking a claim to be struck due to abuse of process you will rely on this rule • If court thinks action is AoP, frivolous or for improper purp (3.68(2)(d))
Sears Canada Inc v C & S Interior Designs Ltd • Franchise rel bw Sears & C&S Designs (C); S filed identical lawsuits in AB & ON and C applied to have AB
action dismissed/stayed. • Agr specified ON as venue for litig; despite this, court did not dismiss AB action. • The mere fact that there are 2 proc’s will not automatically result in a stay/dismissal particularly if there
are separate jurs. o AoP is not an absolute rule court will look at forum and convenience
