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OVERVIEW
There are four key reasons for the renewed importance and timeliness of topic of system of civil justice.
1. Exponential rise in self-represented litigants:

The National Judicial Institute says that it’s not worth suing for less than $56,000. Self-reps are often
people who ‘have’ to be in court (ie. For family or criminal matters) but who don’t qualify for legal aid.

Self-reps also reflect a lack of confidence in the legal profession.

Procedures are complex and legal language is too complicated. There is a movement away from latin
maxims toward common language and a simplification of procedures and a warmer atmosphere
2. Increase in alternative methods of resolving disputes: If parties are dissatisfied of length of time it takes
to go to court, length of time, uncertainty of results etc., they are increasingly trying other methods, e.g.
mediation, arbitration, ADR, and JDR (judicial dispute resolution)  settlement conferencing

This will change the way we as lawyers interact with the judiciary

Judges retain moral authority, even though people hate lawyers

When an issue is adjudicated, you get all or nothing. If you do JDR, you can get 50%, 50%, etc. This
also makes the court system more efficient. Anybody can do JDR, as long as your case is inscribed/on
the rules in the court, and both parties agree.
3. Increased use of technology in the courts: e-discovery, e-filing etc. – there are large policy and
administrative changes to the way the courts run
4. Widespread reforms in civil procedure: large-scale reform in England in 1999 influenced many reform
projects esp. in Quebec (i.e. with the Lord Woolf report.)

Three major reforms:
i. Judge has active powers in managing a case
ii. Judges are being asked specifically to tell parties about possibility of settling, offering parties
CRA, encouraging parties to settle differences
iii. Judges have control over proportionality. Lawyers don’t get to abuse the system.
What, exactly, is procedural law?:

Civil procedure is the procedural software, while judicial institutions are the procedural hardware.

Procedural law provides the means by which decisions of substantive law are obtained

Provides two types of elements:
o
Plumbing: rules of conduct and proceedings through which we try to enforce substantive legal rights
o
Procedural rights: i.e. the right to appeal

The CCP mandates a broad, liberal, and holistic interpretation of civil procedure rules, in a way that facilitates
rather than delays the advancement of cases.
J.A. Jolowicz, “On the Nature and Purpose of Procedural Law”

The supremacy of procedure is the practical way of securing the rule of law. Procedure is the means through
which proceedings are brought before the courts and the law thereby determined.

Procedural law is the law which governs the conduct of proceedings before the court  mode of proceeding by
which a legal right is enforced, as distinguished from the law which gives or defines the right. Procedural law also
governs “procedural rights” including right of appeal and right to invoke the jurisdiction of the court.
Action
o
o
o
English def’n  civil proceedings commenced by writ (or any other manner prescribed by rules of court.)
French def’n  the action is the right, for the person making a claim, to be heard on the substance of
the claim so that the judge can pronounce it well- or ill-founded.
There are thus three possible results of civil proceedings:

Pleading is struck out (plaintiff has no right and no action)

Proceedings run course, plaintiff wins (plaintiff has right and action)

Proceedings run course, plaintiff loses
Substantive vs. Procedural Law can be distinguished with two principles:



Subjection to civil procedural law is voluntary while subjection to substantive law is involuntary.
o
Procedural: If you have a claim, you pursue it if you want to; if someone has a claim against you, you
can theoretically just let them win.
o
Substantive: subjection to substantive law generally derives from the fact of living in society.
Substantive law is self-executing, procedural law is not.
o
Procedural: rules of procedure create choices.
o
Substantive: We speak and act on the assumption that the legal consequences of our actions are
determined directly by self-executing law, not by judicial decisions.
Purposes of civil procedural law:
o
Civil litigation is a process for the resolution of disputes  procedural law sets out rules designed for the
fair/economical/expeditious adjudication of those disputes
o
Procedural law ensures the effectiveness of the law.
J.A. Jolowicz, “On the Nature and Purpose of Procedural Law”
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We must strike the right balance between accessible litigation and ensuring that only valid
claims enter the court system.

Courts send messages, which are resources which parties use in envisioning, devising,
negotiating and vindicating claims (and in avoiding, defending and defeating them)
o
Procedural law aids in the interpretation, clarification, development and application of the law.

Courts can only fulfill their role if the question of law at issue is well-defined, researched &
presented and judges have time to reflect & formulate judgments.

Courts must have the opportunity to pronounce on questions of law of general importance.
Conclusions
o
Procedural law, which provides the necessary institutions and which regulates the actual process of
litigation must start from the proposition that civil litigation is voluntary.
o
Sometimes, we want to be able to deny the jurisdiction of the court.
o
We don’t want a person to ever be compelled to invoke jurisdiction of court

CCP, Art. 2
2. The rules of procedure in this Code are intended to render effective the substantive law and to ensure that it is
carried out; and failing a provision to the contrary, failure to observe the rules which are not of public order can only
affect a proceeding if the defect has not been remedied when it was possible to do so. The provisions of this Code
must be interpreted the one by the other, and, so far as possible, in such a way as to facilitate rather than to delay
or to end prematurely the normal advancement of cases.
Transnationality
The recent explosion in transnational commerce puts raises the issue of whether procedural law and rules should be
confined to individual nation-states/jurisdictions.
The ALI-Unidroit principles are a creation of the American Law Institute and the International Institute for Unification
of Private Law. They provide principles of transnational civil procedure; however, the ambit of the principles is not
that large – they apply only to international transactions that are commercial, not to torts/civil wrongs or family
matters. The principles are supposed to help reduce the impact between different legal systems to help create a
convergence of the rules. It is soft law, not hard law.
What is the good of these transnational attempts at codification?

Gives people leverage power: Parties can stipulate in their contracts that if they go to arbitration, the
arbitrator will be subject to the Unidroit rules. Courts can refer to the rules for interpretive purposes, but
if parties want to use the rules to settle a dispute, it has to be in arbitration.

Intent is that they will actually influence law reform in civil procedure (e.g. Mexico)
ALI/Unidroit Principles of Transnational Civil Procedure: Introduction
These Principles are standards for adjudication of transnational commercial disputes. These Principles may be equally
appropriate for the resolution of most other kinds of civil disputes and may be the basis for future initiatives in
reforming civil procedure.
Comments:

A national system seeking to implement Unidroit principles could do so by a legal measure (e.g. statute, treaty)

Adoptive document may include a definition of “commercial” and “transnational,” that reflects local legal tradition

These principles are not applicable to group litigation (ie. class actions) without modification.

Transnational disputes do not arise wholly within a state and involve disputing parties who are both from the
same state. An individual is a national both of the state of their citizenship and the state of their residence; a
jural entity (ie. Corporation) is considered to be from the state from which it has received its charter of
organization, and the state in which it has its principal place of business.
REFORM – COSTS OF LITIGATION AND ACCESS TO JUSTICE
What are the differences in civil procedure between civil law and common law?
Role of the Judge
CML: The judge is umpire. She leaves it up to parties and their lawyers to develop evidence, to find proof, etc.
CVL: judge has a more active role in terms of case management. She is less passive and removed. The judge
has the primary responsibility for the development of the evidence and the articulation of the legal concepts.
She leads the inquisitorial process.
Origin of the Judge
CML: Judges are picked/appointed from the practicing bar. In Canada, you can’t be named a judge unless you
have been a member of the bar of a Canadian province for 10 years. Judges are historically from the
litigation bar although this is changing (e.g. Judges now include securities experts, family law experts etc.).
The National Judicial Institute offers courses, but nothing is compulsory.
CVL: In France, you decide at a young age that you want to be a judge. They go to Ecole de la Magistrature to
learn to be a judge, how to write judgments, how to run a proceeding, etc. They start in their 20s.
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Jurisdiction & Ambit of Review of Appellate Courts
CML: The ambit of review is limited to questions of law. The court of appeal’s task is to state and develop the
law; determining facts is left to the trial judge.
CVL: The facts are more subject to appellate review. Witnesses can appear in the court of appeal.
N.B. These differences don’t really apply in Canada. Civil procedure in Quebec has been very influenced by the
common law tradition, as have been the style of judgments. Quebec judgments generally have facts/decision/reason,
and read like a story, whereas French decisions are much shorter, terse, with no dissents and no explanations.
Goals and Underlying Values of the Civil Procedure System:
1. Fairness: We want every litigant to have the right to participate, and we want like cases to be treated alike.
2. Trustworthiness: we want arbiters to be free of bias and corruption and neutral. We want to see the judiciary
as independent, impartial, and competent. (See questions of open courts vs. publication bans.)
3. Efficiency: Generally it takes 8 months for a case to go to trial after it’s been inscribed. Efficiency refers to both
speed and costs. We want costs to be proportionate to the amount of money involved, the complexity of case,
importance of issues, etc.
4. Accessibility: The judiciary is concerned about how they are perceived as treating members of groups that
have traditionally not come before the court. The judiciary is aware of obstacles keeping people from coming into
court. This includes costs, complexity and length of proceedings, delay, lost opportunity costs, and anxiety.
What are the problems with the civil justice system?
1. Cost: expert fees, lawyer fees, judicial costs of procedures/filings/stamps etc., opportunity costs, time costs,
emotional costs, travel costs, service costs (i.e. bailiff, stenography), and cost to taxpayer
2. Delay: Once case is inscribed, it usually takes 8 months for it to be heard. It’s not the number of cases that’s
important but the number of ‘judge days.’ Litigants and their lawyers can also resort to adversarial tactics,
including excessive discoveries, multiplicity of procedures, and postponement.
3. Complexity: procedural law should be simplified/expedited; legal/everyday language should help layperson
demystify the process and mitigate against confusion and mistrust.
N.B. These factors are relevant to the issue of proportionality. Sometimes, costs are disproportionate to the nature,
complexity, or value of a particular case. Interestingly, self-reps often increase the cost, because they take a long
time to cross-examine, to make their case etc. They often need help from the judge or from the other party’s lawyer.
What are some of the solutions and how can such solutions be enacted?

Speed up civil justice

Render it more accessible to ordinary people
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Simplify the language of civil procedure
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Promote swift settlement

Make litigation more efficient and less costly; avoid excessive/disproportionate resort to procedural devices.
1.
2.
3.
REFORMS
Judges are no longer restricted to a passive role: Idea of the ‘juge gestionnaire’ is more popular. Judges
can set a timetable for the case, not let lawyers use every argument, less patience for postponements

CCP 413.1: The judge can bring in opposing experts and have them reconcile their opinions.
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CCP 110.1: Every case must be inscribed within 180-days of the motion to institute proceedings.
Judges have the power to, at every juncture, encourage parties to settle. In some cases judges even
have a duty to encourage settlement i.e. In family and small claims matters.
Judges are allowed to consider the proportionality of costs: Judges are given power over discoveries and
can encourage proportionalit. Judges are not only adjudicators, they are managers, conciliators and supervisors.
Quebec Committee on the Reform of Civil Procedure, “La revision de la procedure civile – Une nouvelle
culture judiciaire”, 2001
The report of the Committee is divided into three main parts. The first part deals with the six findings used by the
Committee to understand the current situation and direct its focus. The second part proposes a new vision of the civil
procedure. The third part contains an analysis of the current rules of civil procedure, an examination of the principal
problems identified by the Committee, as well as the recommendations put forth for a solution when reviewing the
civil procedure and drawing up a new Code.
FINDINGS
DECREASED NUMBER OF PROCEEDINGS BROUGHT BEFORE THE COURTS
There has been a 44% decrease in cases opened from 1977 to 1999 at the QCSC and CQ.
THE COSTS OF JUSTICE
Quebec Committee on the Reform of Civil Procedure
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Added to judicial costs, generally paid by the losing party, a litigant may be required to pay other related costs when
he institutes legal action. Trials can cause significant social and human costs such as incertitude and anxiety.
THE COMPLEXITY OF PROCEEDINGS
The multiplicity of rules, as well as the technical and obscure language used in civil law contributes to give a complex
and impenetrable image of the justice system.
SELF-REPRESENTED LITIGANTS
There has been a slight decrease in self-represented litigants at the Civil Divisions of the QCSC and the CQ over the
past few years. For the judge, maintaining and preserving his impartiality can be difficult, especially when he needs
to intervene to assist the inexperienced self-represented litigants. There is also an additional burden on the lawyer
who has to explain every step to the self-represented litigant. Court personnel must be careful not inadvertently
cross the line between legal information and advice. The self-represented litigant has a huge responsibility to
produce evidence and cross-examine at the risk of prolonging and proceedings costing the represented party more.
THE SLOWNESS OF JUSTICE
There have been improvements in terms of delays between the institution of an action and the final judgment.
THE ADMINISTRATION OF JUSTICE
The growth and increased use of information technologies in the administration of justice is a major challenge that
cannot be avoided. These technologies can be used to ensure accessibility.
A NEW VISION OF PROCEDURE
Ensure quality public service promoting accessibility to civil justice, promptness of the process, balance between the
rights and obligations of all the participants and respect of public order and social harmony.
RESPECT OF PERSONS
Access to justice must be facilitated by the simplest and most accessible procedures. There should be information
provided and the adaptation of forms to the various stages of the proceedings. The possibility of limiting the number
of witness summons and greeting the justiciables in the courthouses should also be considered.
ACCOUNTABILITY OF THE PARTIES
The justiciable must be aware of the primordial place he holds in the judicial system and be more accountable as to
his choice of the dispute resolution process and the processes he initiates.
INCREASED INTERVENTION OF THE JUDGE
We should allow a greater intervention of the judge by allowing him, in addition to the pre-trial conferences, to hold
case management conferences and settlement conferences.
PROPORTIONALITY OF THE PROCEDURE
We can reduce costs through incentives to conclude proceedings, increased judicial control over proceedings, and
improving the match between the nature/purpose of a legal action and the means to carry it out.
INFORMATION TECHNOLOGIES
The Committee encourages the admission and the use of information technologies to increase the accessibility and
quality of services provided by the justice system, to save time and avoid costly travel.
Effects of reform in Quebec
Fewer cases before the courts

Some changes in jurisdiction: the government raised the monetary limit for the CQ (both in Petit Creances
and the Chambre civile). The report says that these have had little effect.

There have been fewer cases in the QCSC (except in family matters); however, QCSC proceedings are
becoming more complicated and lasting longer, so there are more judges in the QCSC than the CQ.
o
Changes in consumer habits (e.g. debt consolidation); more credit available
o
Financial institutions trying to solve consumer problems in-house, with ombudspeople etc.
o
Increased media role in defending consumer rights (discourages bad behaviour by banks)
o
More public indemnity regimes (e.g. insurance) reviewed by administrative tribunals, not courts.
Costs

Judicial fees (frais judiciaries): The court charges to receive/deliver an action (to offset the costs of the
justice system.)
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Service: e.g. mailing, bailiff, etc.)

Witness fees
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Stenographer fees
Costs
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Judicial honoraria: is paid to the winning lawyers by the losing party, and is fixed by statute.
Extra-judicial costs:
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Lawyer’s fees
Other costs: e.g. time off work, travel, lost opportunity, etc.
Self-Reps

The right to represent yourself is a natural right (art. 61 CCP)

In the last three years, 20% of files had at least one-person self-representing at the SCC. In Ontario, selfreps have increased 500% in family court since 1995. In Quebec, family court saw a 12% increase; now
43% are self-repping.
o
Cost of justice: no one can get legal aid.
o
Lack of public confidence in lawyers:
o
Public legal information: DIY and Judge Judy. Law for dummies. Etc.

Even though the consequences suck, self-reps are taking the law into their own hands, which we should
encourage in democratic citizens.
Delays

Cases usually have four steps: (1) serving actions and getting information from each party (2) delay
between the time when the case ready to proceed and it actually comes to court (3) judge’s deliberation
and (4) execution of judgement

Average delays: 18 months at Superior Court – about the same at the C.Q.
Administration of Justice

Parties: have no interest in the law. Just themselves

Witness: are essential. We should take care of them and ensure their expenses paid

Judge: has a changing role, and is becoming more geared towards conciliation
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Clerk: has an administrative role and a judicial role. They can intervene and even render some decisions.
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Special clerk: has become important. They can rule on any demand. (CCP 564.2)

Lawyer: gives advice, negotiates contracts, wins

Notary: writes and receives juridical acts
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Bailiff: auxiliary of justice
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Sheriff: is like the bailiff, but is responsible for the forced sales of immovables

Stenographer: writes stuff down
Modernization

We should use more technology (e.g. video, internet, electronic filing systems like they have in Singapore,
videoconferences like they use in Sweden and the U.S.). The CCP was amended in 2000 to allow e-factums.

We must nevertheless make sure that any technology we use protects people’s information.

In Quebec, we’ve seen more public registries.
Recommendations
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Articulate values of justice in the preliminary disposition, guiding principles, and general rules.

Preliminary disposition: should establish that the administration of justice is a shared social responsibility,
that litigants have freedom of choice regarding the solution they want, and that the court must respect of
fundamental rights of parties and witnesses.

Guiding Principles: The code should be interpreted to facilitate the process, not to retard it. The principles
should ensure that all procedures be proportional, and affirm Art. 5 CCP (that parties are masters of their
files and can do whatever they want as long as it’s in good faith, doesn’t harm people, and not excessive.)
They should also affirm the responsibility of court to ensure things run smoothly.

Judicial function: Courts cannot pronounce more than has been demanded. A judge cannot refuse to judge
under the pretext of silence/confusion/insufficiency of law. In family matters and small claims, the judge
must favour conciliation. Judges can always try to conciliate parties with their consent.

Openness: The Code should affirm that civil justice is public. However, courts can order some publication
bans, and publication bans exist on all family proceedings. These powers should be integrated into the CCP
rules of practice ensuring confidentiality of medical documents and expert reports. The CCP should invite
public authorities to a public consultation on restrictions in terms of TV/radio presence in courtroom.
Lord Woolf’s Report, “Access to Justice – Interim Report to the Lord Chancellor”
A civil justice system should:
1. Be just in the results it delivers
2. Be fair and be seen to be so by:

Ensuring equal opportunity to litigants, no matter their resources, to assert/defend their legal rights

Providing each litigant with a chance to state their case and answer their opponents

Treating like cases alike
3. Make sure procedures and costs are proportionate to the nature of the issues involved.
Lord Woolf’s Report, “Access to Justice
4. Deal with cases with reasonable speed.
5. Be understandable to those who use it.
6. Be responsive to the needs of its users.
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7.
8.
Provide as much certainty as the nature of the particular case allows.
Be effective in its organization and use of resources to give effect to the above principles.

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“The process is too expensive, too slow, and too complex.” (523)
There should be encouragement for early settlement of disputes.
Litigants/lawyers should be obligated to settle disputes efficiently
Civil procedures should be simple and easily comprehensible to all.
The Adversarial Environment
Individuals in each case initiate/conduct proceedings, and the plaintiff tends to set the pace. The judge is
just there to adjudicate on the issues the parties choose to put forward.
There is “no effective control of [conduct, pace, and extent of litigation]’s worst excesses.” (524)
Without “effective judicial control,” the process encourages an adversarial culture in which “expense, delay,
compromise, and fairness may have only a low priority”, and the litigation process itself as “a battlefield
where nor rules apply.” (524) Sophisticated litigators use delays to serve their clients.
The existing rules are “flouted on a vast scale” (timetables ignored, etc.) (524)
Expense of litigation
Excessive cost deters people from making or defending claims. It is often cheaper to pay up, irrespective of
the merits, than to defend an action.
Private individuals lose time and energy.
Big corporations suffer due to the diversion of executivess and employees from normal activities, which can
have “serious implications for [a corporation’s] profitability.” (525)
“Deep pocket plaintiffs” who can afford to keep a case in court can impose excessive costs on their
opponents and consuming the court’s resources. (525)
The cost to society of legal aid is “high and rising.”
Lawyers themselves have admitted that “they would not be able to afford their own services if they had the
misfortune to be caught up in legal proceedings.” (525)
-
Delay
-
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
Disproportionate costs are most severe at the lower end of the scale, “where costs for one side alone
equal or exceed the claim in half the cases looked at.” (525)
The present approach to litigation usually results in “total uncertainty for the parties” as to what the
litigation will require and cost. (525)
The adversarial system requires every aspect of a case to be fully investigated. Even if an issues is
obviously only peripheral, money and time is often spent on it because a failure to do so could amount to
professional negligence. (526)
The more lawyers drag out proceedings, the more they get paid.
“Discontinuity in the handling of cases results in additional work necessary to refresh memories.
Delays add stress, postpone compensation, lead people to settle, and benefit mainly the lawyer.
There are four points in the process at which delays are an issue:
o
The time between the initial claim and the final hearing
o
The time to reach a settlement
o
Delay in getting a hearing date
o
The time taken by hearing itself.
Sometimes delays are necessary, e.g. when waiting for a medical condition to stabilize or for litigants to
adjust to the idea of settlement. (526) But most often, delays are unnecessary.
Court too often condones failure of a case to progress efficiently due to excessive discovery, or time wasted
on “peripheral issues or procedural skirmishing.”
Settlement often occurs to late in proceedings, at which point they can involve substantial additional costs to
parties. Settling earlier is beneficial to the courts and the parties.
Delays in obtaining a hearing occur because there is such a high rate of late settlement, so the courts
over-list judges in attempt to ensure full use of judge’s time.
At the hearing itself, time estimates rarely reflect reality. Excessively and unexpectedly long hearing times
eat into preparation time for judges and lawyers. (527)
Complexity

Complexity places an unnecessary burden the parties, and comes from a variety of sources, including:
a. The rules of court
b. Variety of ways of initiating proceedings
c. Procedural distinctions between cases proceeding in different courts.
Lord Woolf’s Report, “Access to Justice
Unavailability of legal assistance and advice

The higher the costs of litigation, the fewer people can be assisted.

A large portion of population not eligible, but also cannot afford legal counsel.

Some limited advice/assistance is available from law centres/agencies, but this is “patchy and haphazard
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
and affected by lack of resources.” (527)
More and more litigants representing themselves, which again raises problems (they don’t know how system
really works, take up more time, etc.
A low priority for civil justice

Civil justice regime receives less attention than the criminal justice system. (528)

There are more family and criminal cases than ever for judges to deal with. (528)
Major Reforms

There must be “a fundamental shift in the responsibility for the management of civil litigation for
litigants and their legal advisors to the courts.” This will involve “not only a change in the way cases are
progressed within the system” but “a radical change of culture for all concerned.

Greater responsibility should be given judges and courts.

The system and procedures must provide a better framework for this enhanced judicial control.
“The achievement of the right result needs to be balanced against the expenditure of the time and money needed to
achieve the result.” (528) Professionals in the field must take more into account the time and resources of parties.
Objectives centre around avoiding court: (full list p 529)
If alternative dispute resolution mechanisms exist, they should be used before going to court.
Before starting proceedings, parties must be fully informed of likely cost/time and alternatives
Proceedings should be subject to predetermined timetable.
The only discovery/evidence that should be put before the court is that which is necessary for the just and
appropriate disposal of proceedings.
Case management
Case management is currently the same for all cases regardless of cost, complexity, and importance.

Expand small claims court

Creating a fast track for straightforward cases not exceeding 10,000 pounds.

Multiple tracks for cases above 10,000$, including a case management conference at early stage and a
pre-trial review before case goes before court.

Only the most complex and important cases should go before high court.

Most cases should managed by procedural judges at lower levels or in teams with higher judges. This
judge will conduct the initial scrutiny of cases and will allocate them to the proper court or suggest ADR.

Proper case management will encourage early settlement.
Lachapelle, J. et al. “Des solutions pour la justice civile” et "Le Monde Judiciare malade de sa Justice",
2008
Bref: Lachapelle proposes solutions to access to justice and emphasizes the need for reform in family law.
Potential solutions to access to justice:
The ability for every citizen to exercise his or her rights
Advocates for a more active, central, and consistent role of the judge, to speed up and humanize justice.
Preliminary assessments of judicial and extrajudicial costs so that the citizen understands the costs of
any action he or she undertakes
Establishment of judicial insurance, which would look a lot like health insurance.
Raise threshold of eligibility for legal aid.
Change the current system of professional autoregulation by the Bar, since lawyers profit from abusive fees.
Look at practices in other jurisdictions and borrow solutions.
Prioritize the civic education of citizens.
Look at the civil justice system as a public service, and not as Justice.
Trend
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



since the 1970s: Fewer and fewer cases are brought to court, but cases take longer and longer. Why?
There is a profound mistrust of the legal system. People trust judges, but not courts.
High legal fees and the commercialization of the legal practice breed mistrust.
People lack knowledge about the judicial system, since this is not part of their civic education.
Because of the delays in obtaining a result, justice is rarely worth the cost.
There is a lack of dependable information/statistics on the efficacy of the civil justice system.
What are the costs of litigation?
1. Institutional component: administration, court personnel, judge’s salary. This is borne by taxpayers.
2. Court ordered costs, as distinguished from the funding of court cases.
3. Lawyers’ Fees

Conditional Fee Agreements (CFA) [Lawyer takes 15-35% if they win, nothing if they lose]
o
CFAs tend to only work when the expected damages are high. They are also unsuited to criminal
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law and family law, and they can only be used by plaintiffs.
Most common areas: plaintiffs’ lawyer in class actions and personal injury (especially involving
medical malpractice and insurance.)
o
There is a risk of cherry-picking lucrative cases, but CFAs can also discourage frivolous cases.
o
In England, the lawyer cannot be paid more than the hourly rate if he wins! This avoids windfalls.
o
There were no CFAs in Ontario until 2002.
o
What about the professional, ethical dilemma – that CFAs might create a conflict of interest?
Lawyers may be tempted to terminate a case rather than focus on the best interests of the client.
Per Hour Fees [Standard]
o
Fees may be reduced in the case of a loss, and there can be bonuses in the case of a win. Lawyers
may also agree to a cap or maximum limit for fees.
o

Who finances litigation?
The vast majority of suits are self-financed by the client. The high cost of civil litigation means that none but the
very affluent can pursue a legal remedy.
Legal Aid
Legal aid could probably never be inclusive enough.
If you have any savings, it will affect your access to legal aid. The middle class is likewise screwed.
The unavailability of legal aid explains the rise in self-represented litigants.
The solution must come from elsewhere: AJR, ADR, pro bono, NGO funding, tax deductions, insurance, etc.
Legal Aid Max Annual Income Cut Off (ON)
[gross]
Single $7000
Family of Five $15000
Pro
-
Bono
Pro Bono
Pro Bono
Pro Bono
Pro Bono
Legal Aid Max Annual Income Cut Off (QC) [net]
N.B. People with slightly higher incomes can
obtain some subsidization.
Single: $1100
1 adult and 2 or more children: $19000
is one prong in what should be a multi-prong approach to promoting access to justice.
Quebec is organized by the Bar. They bank firms’ hours and constitute a centralized system.
incentivizes lawyers to take landmark cases that will set precedents.
also incentivizes taking cases that will help the maximum amount of people.
Insurance
Some insurance plans might include a bit for lawyers fees, but these are not common.
Government
Macro
Some argue that s.7 of the Charter includes a right to legal representation provided for by the government.
BC v. Christie (2007) established that the Charter creates no broad legal right to legal counsel. S.7 does not
now protect social/economic rights.
Micro
The Federal Court Challenges program: Under the program, now defunct, you could receive up to $60K for
case preparation from a federal program to help advance Charter claims.
The Fond d’aide au retour collectif allows individuals and non profits to apply for financial aid to bring a class
action. The fund will assess if the case has merit and if the class does not have the wherewithal to fund the
action. Funds are very restricted, but they exist.
Ontario has a fund, but access is restricted to costs that are owed by the losing party
Interest and non-profit groups
Groups can gain intervener status, and they often fund cases.
What about when the above does not apply?
Self-representation: There are emergent self-help centres to assist people who do not qualify for aid to
locate legal information, research alternatives to the judicial system, fill out forms, etc.
These centres cannot give legal advice, only information. Lawyers have a monopoly on legal advice, and
some say that monopoly keeps fees prohibitively high.
Chief Justice R. McMurtry, “We are not all equal before the law”

The rule of law entitles us all to be treated equally by the law. There is no law without freedom, nor freedom
without law.

“The majesty of the law which equally prohibits the rich and the poor from begging in the streets, stealing a loaf
of bread or sleeping under bridges.” -- Anatole France

The people who need access to justice the most are the ones who cannot afford it.
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In the criminal justice system, persons charged with criminal offences can access legal aid, but there is not
enough money to do this for everyone who needs it in the civil system.
The legal aid threshold is too low.
A just society should enable everyone to have access to the legal assistance necessary to assert their rights.
Legal Aid is important but there will never been enough money to provide legal aid for everyone. We need a
better culture of pro-bono in law firms. Law firms need to become more humane.
Pro Bono structures have existed in the US for a long time because there is often no legal aid.
Why do we award costs? How are they justified?

In the US, the default position is that no costs are awarded unless there are special circumstances. US courts do
not want to discourage legitimate actions.
o
Fleischmann Distilling v. Maier Brewing (USSC): “since litigation is at best uncertain one should not be
penalized for merely defending or prosecuting a law suit, and… the poor might be unjustly
discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of
their opponents’ counsel…”
o
Justice is never certain and the just do not always win.

If you are engaging a lawyer you might have to pay costs even if you lose.
Canadian Position: [Orkin]

In Canada, the default position is that costs will be awarded, but this is not so in the US.

The successful party, free from blame, should not have to pay anything.
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However, citizens will be hesitant to defend their rights if an unsuccessful party has to bear the costs.

Hence, costs are awarded, but not full costs, as that would unduly limit access to justice.
Justification for Costs
1. Compensatory: Successful claimants need to be compensated for having defended their rightful position. In
Quebec, full-indemnity costs are explicitly understood as ECO damages.
2. Facilitative/Policy Directive: Cost awards direct litigious behaviour and shape how people use the courts.
a. Keep people from wasting the court’s time and resources
b. Discourage meritless claims.
c. Encourage settlement
ON Rules, 49.10
49.10 (1) Where an offer to settle,
(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant, and the plaintiff obtains a judgment as favourable as or more favourable than
the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was
served and substantial indemnity costs from that date, unless the court orders otherwise.
Note: This is doing more than just encouraging people to settle, it is almost forcing them to.
Jurisdiction
Facts
Issue
Holding
Ratio
Walker v. Ritchie, SCC CML, 2006
Supreme Court on appeal from the court of appeal for Ontario
Walker suffered serious injuries in a car accident. She and her family sued Ritchie, a truck driver,
and his employer, Harold Marcus Limited. During the litigation, the plaintiffs offered to settle
pursuant to Rule 49 of the Ontario Rules of Civil Procedure. The defendants rejected the offer. At
trial, the defendants were found 100% liable for the accident. Brockenshire J. awarded the plaintiffs
$5,168,317 in damages. Since the plaintiffs’ award exceeded their Rule 49 offer, the plaintiffs were
entitled to partial indemnity costs for the litigation up to the date of service of the offer and
substantial indemnity costs from that point onward.
Should the costs be increased to take into account the risk of non-payment to the plaintiff’s lawyer?
No. The risk premium should be set aside. The risk of non-payment to the plaintiffs’ lawyer was not
a relevant factor under the costs scheme in Rule 57.01(1) of the Ontario Rules of Civil Procedure at
the time costs were fixed in this case.
Rule 57.01(1) guides a court’s determination of the quantum of a costs award. While
indemnification a factor in awarding costs, the scheme in place did not grant full indemnity, but
determined the quantum of costs pursuant to factors set out in Rule 57.01(1) and the Tariff.
Walker v. Ritchie, SCC CML, 2006
Risk of non-payment to plaintiff’s counsel is not an enumerated factor under that rule. While
the words “any other matter relevant to the question of costs” in clause (i) of Rule 57.01(1) are
broad, they are not unlimited. The enumerated factors share common features and should guide the
determination of what else might be relevant in clause (i). The application of the limited class rule
suggests that the framers did not intend it to include the risk of non-payment as a factor.
Unsuccessful defendants should expect to pay similar amounts in costs across similar cases
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of litigation involving similar conduct and counsel, regardless of what arrangements the
particular plaintiff may have concluded with counsel, since a defendant has no knowledge of
these private arrangements and thus has no means of measuring the risk of engaging in litigation.
There is no basis for a difference in approach under Rule 49 to the issue of a risk premium as
between an award of partial or substantial indemnity costs.
Requiring unsuccessful defendants to pay a premium to the plaintiffs in personal injury cases is not
compelled on the theory of promoting access to justice. The opportunity for counsel to charge his
or her own client a risk premium, or now a contingency fee, encourages competent counsel to take
on the cases of impecunious clients.
Facts
Issue
Ratio
Reasoning
Beardy v. Canada (Attorney General) [2003]
The lawyer, M, was counsel for plaintiffs in a sexual abuse claim brought against religious
organizations and the Federal Attorney General. He failed to show up on two occasions at his clients’
examinations for discovery even though he had notice of examination and was asked to confirm
suitability of dates. He also failed to respond to letters and telephone calls to confirm suitability of
dates. As a result, counsel for the Attorney General attending examinations for discovery in Hearst and
Thunder Bay when neither M nor his clients were present. Attorney General applies for costs to be paid
by the lawyer M personally for the cost of two abortive examinations.
Should the costs be payable by the lawyer personally?
Yes.
Rule 57.07(1)(c) grants authority for solicitors to pay costs personally where the solicitor has
caused costs to be incurred without reasonable cause or due to delay, negligence, etc.
A cost orders against a solicitor should be used with extreme caution. It is not meant to
punish lawyers, but to control abuse of process/contempt of court.
The threat of personal cost orders may be used as a tactic in litigation, and would foster an
antagonistic relationship between counsel.
In Ontario, two approaches can be applied when ordering a solicitor to pay costs personally:
o
Plain meaning of the rule
o
Requirement that the solicitor be acting in bad faith or in an otherwise
reprehensible manner (i.e. there must be misconduct beyond mere negligence)
In Marchand, Granger J. held that the jurisdiction to award costs against a solicitor can either
be statutory or part of the court’s inherent jurisdiction to discipline lawyers (as for
contempt) – and different standards apply for each.
o
R.57.07 is not a codification of the common law, but a statutory grant of jurisdiction.
Thus, the ordinary meaning of the rule applies. There is no requirement of bad faith.
-
There is a two-step approach:
1. Determine whether the conduct complained of falls within the scope of the rule;
2. Decide whether the circumstances call for an application of the rule
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The solicitor’s conduct in this case goes beyond mistake, inadvertence or error in judgment.
There is a pattern of conduct indicating disregard for due process.
Counsel had a duty to offer guidance and direction to his client. If there has been a
breakdown in the solicitor-client relationship, such that the client will no longer accept the
lawyer’s advice, then the lawyer should be removed as a solicitor of record.
This is an appropriate case for the solicitor to pay costs personally.
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Issues
Commission des droits de la personne et des droits de la jeunesse c. Laval (Ville) [2007]
Me Alarie is requesting a special honorarium payment of $80,000 according to art. 15 of the Tariff
des honoraries judiciaires des avocats. The lawyer worked for the Mouvement laique québécoise
(MLQ) which brought an action against the Human Rights Commission on behalf of Ms. Payette.
The HRC alleged that the City was infringing on Payette’s rights in reciting prayers in public City
Council meetings. The Tribunal found for the HRC.
Should the lawyer be paid this special honorarium?
Ratio
Yes, but at a reduced amount - $ 5000
Facts
Reasoning
CDPDJ c. Laval [2007]
Me Alarie’s Arguments

The case was an important cause which gave rise to a complex legal debate concerning
freedom of religion.

He contributed over 165 hours of work and played a big role in the progress of the case.
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There is a disproportion of resources between the MLQ and the City of Laval.

Attacking the legality of a regulation imposes a task on the lawyer beyond the ordinary.

The cause was highly reported in the media and that the judgment will have a wideranging effect on local municipalities.
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City of
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The HRC would not have been able to present the case without the support of the MLQ.
Laval’s Arguments
Just because it’s an important cause, it does not justify imposing the special honorarium.
Neither does the fact that it’s a constitutional or administrative issue justify this award.
There is insufficient procedural complexity. No one required the victim to be represented
by a lawyer and Me Alarie did not make any particularly useful contribution.
Court’s Analysis
The basis for claiming an honorarium payment is arts. 477 and 480 CCP.
Factors that can be considered include, inter alia, the gravity and complexity of the
facts; the duration of proceedings; the nature of the proof; the quantity and
importance of the documents; particular difficulties etc.
The file gave rise to important public interests and engendered a lot of public debate. The
decision had a collective effect on the QC Charter and on the consequent amendments
that many municipalities had to make. The matter constituted an important cause.
Me Alarie made a significant contribution to the case.
Courts should encourage the role of community organizations in bringing complaints
before the HRC. The HRC would not have been able to present its case without the MLQ.
The parties were unequal. (The City spent over $240K while Me Alarie only got $ 5000.)
There should not be a mathematical formula to determine of special honorariums. The
tribunal must have a global appreciation of the case.
Facts
Issues
Ratio
Reasoning
McKinnon v. Polisuk [2009, Ontario Superior Court]
The petitioner asks for the recognition and enforcement of a decision rendered outside QC under
art. 3155 CCQ. Scintilore instituted an action against Larche, who filed a counter-claim against
McKinnon and Poliksuk personally. ONSC dismissed both the claim and the counter-claim. The
counter-claim was dismissed without costs, and Scintilore and Polisuk were ordered to pay costs to
McKinnon and Larche.
Should the court order the payment of an extrajudicial honorarium and enforce the foreign
judgment?
No
SUMMARIZE
Against whom are costs awarded?
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Typically, the losing party pays. Sometimes, the winning party may still pay in cases in public law involving
constitutional issues, but this is rare.

Rule. 57.01(2): The fact that a party is successful in a proceeding does not prevent the court from awarding
costs against the party in a proper case.
o
This will only happen in rare cases, e.g., when the winning party turned a one day trial into five days
through useless witnesses and the judge didn’t appreciate it.
Costs Paid by Lawyers

Rule 57.07 (1) Where a lawyer for a party has caused costs to be incurred without reasonable cause or to be
wasted by undue delay, negligence or other default, the court may make an orders
a) disallowing costs between the lawyer and client or directing the lawyer to repay to the client money paid
on account of costs
b) directing the lawyer to reimburse the client for any costs that the client has been ordered to pay to any
other party; and
c) requiring the lawyer personally to pay the costs of any party. O. Reg. 575/07, s. 26.
What are the “Costs” Awarded by the Court?

Judicial costs refer to court costs, i.e., tariffs.

Extra-judicial costs include lawyers’ fees. There are many different types of extra-judicial cost awards, including
ordinary vs. special, party-to-party vs. solicitor-client, and partial indemnity vs. full indemnity (N.B. full-indemnity cost
awards are extremely rare.)
Quebec
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Art. 477 CCP – the losing party must pay all costs (including stenographer) unless the court orders otherwise.
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Art. 519 CCP – the judge will adjudicate on costs.
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Common Law
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Cost orders are a power of the court, and part of the court’s “inherent jurisdiction”
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Federal courts have a statutory grant of discretion under the Courts of Justice Act
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Rule 131 – Costs are at the discretion of the court. (Note: in ON, the relevant factors are enumerated.)
ALI/Unidroit in Ontario

The Ontario rules open up the possibility of granting costs against a winning party, or even awarding costs against
an abusive lawyer.
o
E.g. Young v. Young (1993): The lower court awards costs against the lawyer for abuse of process and
contempt of court. McLachlin reverses the judgment, saying costs are for compensation, not punishment.
o
Excessive motions and abuse are everywhere. We don’t want lawyers to refuse unpopular cases.
“Costs are awarded as compensation for the successful party, not to punish a lawyer. Any [lawyer] might be subject to a
compensatory order for costs if it is shown that repetitive and irrelevant material, and excessive motions and
applications, characterized the proceedings in which he or she was involved, and that the lawyer acted in bad faith in
encouraging this abuse and delay. ... The proceedings here, despite their length and acrimonious progress, did not fall
within these characterizations. Courts, moreover, must be extremely cautious in awarding costs personally against a
lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even
unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may
conflict with these fundamental duties of his or her profession.”
Two Ways to Calculate Costs
(1) Tariff system (Quebec): the government sets out the amounts owed in certain cases
o
Advantages: stabilizes expectations and promotes certainty, consistency, and simplicity
o
Disadvantages: does not increase with inflation, does not change without legislative action
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The tariff system is based on arts. 477 and 480. (N.B. The tariffs only go up to $1000!)
The amounts from 1976, and bear no relation to actual cost. The Bar estimates them at 5% of the real costs.)
The tariff system is universally detested in Quebec by academics, lawyers, and judges.
However, the government likes it! They believe that it promotes access to justice.
(2)
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Discretionary System (Ontario): the court decides, but most jurisdictions have guidelines
Jukier estimates partial indemnity costs at 40-60%
In ON there is no tariff system, just Rule 57.01
The cost regime can influence the parties’ choice of forum. Why sue in Quebec if you can sue in Ontario?
When Can You Get Full Indemnity?
1. You can get full indemnity costs where a statute provides for it

Rule 49.10 establishes that you may have to pay substantial indemnity if you refuse a settlement offer.
2. In Quebec, the tariff system itself includes two additional mechanisms:

Art. 42 of the Tariffs: in cases involving awards of over $100,000, you can add 1% of the difference
between $100,000 and the higher amount.
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Art.15 of the Tariffs: on the request of the parties there could be a special honorarium in the case of an
important cause. (C.D.P.D.J. v. Laval [2007])
What is an important cause?

It must have public interest (i.e. it must have created social and political debate)

The court must also consider the proof required, the complexity of the issues, the time required and
whether or not there was unequal force between the parties.
Ontario Courts of Justice Act, Art. 131
Costs
131.(1) ... the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court,
and the court may determine by whom and to what extent the costs shall be paid.
Crown Costs
(2) In a proceeding to which the Crown is a party, costs awarded to the Crown shall not be disallowed or reduced on
assessment merely because they relate to a lawyer who is a salaried officer of the Crown, and costs recovered on
behalf of Her Majesty shall be paid into the Consolidated Revenue Fund.
ON Rule 57 – Costs of Proceedings
Factors in Discretion
57.01 (1) In exercising its discretion under section 131 of the OCJA to award costs, the court may consider, in
addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party
entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in
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the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to unnecessarily shorten or lengthen the proceeding;
(f) whether any step in the proceeding was,(i) improper, vexatious or unnecessary, or (ii) taken through
negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party, (i) commenced
separate proceedings for claims that should have been made in one proceeding, or (ii) in defending a
proceeding separated unnecessarily from another party in the same interest or defended by a different
solicitor; and (i) any other matter relevant to the question of costs.
Authority of Court
(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the OCJA
(a) to award or refuse costs in respect of a particular issue or part of a proceeding;
(b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a
proceeding;
(c) to award all or part of the costs on a substantial indemnity basis;
(d) to award costs in an amount that represents full indemnity; or
(e) to award costs to a party acting in person.
LIABILITY OF SOLICITOR FOR COSTS
57.07 (1) Where a solicitor for a party has caused costs to be incurred without reasonable cause or to be wasted by
undue delay, negligence or other default, the court may make an order,
(a) disallowing costs between the solicitor and client or directing the solicitor to repay to the client money paid
on account of costs;
(b) directing the solicitor to reimburse the client for any costs that the client has been ordered to pay to any
other party; and
(c) requiring the solicitor personally to pay the costs of any party.
2) An order under subrule (1) may be made by the court on its own initiative or on the motion of any party to the
proceeding, but no such order shall be made unless the solicitor is given a reasonable opportunity to make
representations to the court.
ALI/Unidroit Principle 25
25. Costs
25.1 The winning party ordinarily should be awarded all or a substantial portion of its reasonable costs. “Costs”
include court-filing fees, fees paid to officials (e.g. stenographers), expenses such as witness fees and lawyers’ fees.
25.2 Exceptionally, the court may withhold or limit costs to the winning party when there is clear justification for doing
so. The court may limit the award to a proportion that reflects expenditures for matters in genuine dispute and award
costs against a winning party who has raised unnecessary issues or been otherwise unreasonably disputatious.
The court in making cost decisions may take account of any party’s procedural misconduct in the proceeding.
CCP, Arts. 477, 480
477. The losing party must pay all costs, including the costs of the stenographer, unless by decision giving reasons
the court reduces or compensates them, or orders otherwise.
As well, the court may, by a decision giving reasons, reduce the costs relating to experts' appraisals requested by the
parties, particularly if, in the opinion of the court, there was no need for the appraisal, the costs are unreasonable or a
single expert's appraisal would have been sufficient.
In a personal action, and subject to art. 988, the amount of the costs of suit ... that the losing defendant may be
required to pay shall not exceed the amount of the condemnation, if that is not greater than the amount contemplated
in paragraph a of art. 953, unless the court, by judgment giving reasons, orders otherwise.
480. The party entitled to costs prepares a bill thereof in accordance with the tariffs in force, and has it served upon
the party who owes the costs, if the latter has appeared, with a notice of at least five days of the date when it will be
presented for taxation to the clerk; the latter may require proof to be made by affidavit or by witnesses.
The taxation may be revised by the judge within 30 days, upon motion served on the opposite party. The judgment
thus rendered is final and subject to appeal in accordance with the rules provided in article 26.
However, saving the debtor's contingent right to recover, the motion for revision or the appeal from the judgment on
that motion does not suspend execution unless the amount of the factum as taxed or as revised exceeds $10,000, in
which case the execution is suspended in respect of the excess.
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COSTS AS A POLICY DIRECTIVE / INTERIM COSTS
Y. Boisvert, “Parlant d’acces a la justice”, La Presse

Boisvert discusses the case of Louise, who was unjustly fired from her job at a law firm, and sued – despite the
fact that she was attacking one of the most reputable firms in Montreal. The judge found that she was wrongfully
dismissed and that she had been sexual harassed by one of the partners.

She received a total of $80,000 in damages. Her lawyer asked the judge to be reimbursed for his fees ($139,505)
given the egregious nature of the law firm’s actions against his client. QCCA says no – we don’t give costs to
lawyers in this province unless there has been an abuse of procedure.

Luckily, Louise had a CFA (or entente de rémunérations à pourcentage).

This means that someone who deals with you in bad faith but is keen to the judge will never have to pay your
lawyer fees – although in other provinces, they might have to.

There are certain situations where we should allow people to collect the costs of their lawyer’s fees: e.g. cases of
unjust firing, or where someone is making claims against an insurance company … basically, whenever a little guy
must face a big guy in court with deep pockets and it is clear that the little guy has been unjustly treated.

Limiting the opportunity to collect lawyers’ fees only in the cases of procedural abuse creates an obstacle to justice
and allows big guys to crush the little ones.
Pros and Cons of Interim Costs
Until now we have talked about costs that are awarded at the end of the trial. There are, however, interim costs,
which are awarded in advance or during the trial, before the decision is rendered. These are only allowed in the
civil justice system.
Concerns

Does it risk pre-determining the issue?

Does it lead to an apprehension of bias? It potentially compromises the judge’s objectivity, or at least the
appearance of neutrality.

Interim costs usurp the function of Legal Aid and indirectly restore the defunct Federal Court Challenges
Program – which should only be restored by the legislature.
Benefits

Interim costs give parties access to justice and allows them to proceed with their claim.

They anticipate what the lawyer’s fees must be.
N.B. If you get interim costs and you lose, you usually have to pay the other costs back – including interim costs. In
Okanagan this is not discussed at all. In Hétu they do say that if the party who loses was awarded interim costs then
they must give them back.
1.
2.
3.
Okanagan Test for Interim Costs
The party seeking the order must be impecunious to the extent that, without such an order, that party would
be deprived of the opportunity to proceed with the case. There must not be any other available option.
The claimant must establish a prima facie case of sufficient merit to warrant pursuit.
There must be special circumstances sufficient to satisfy the court that the case is within the narrow class
of cases where this extraordinary exercise of its power is appropriate.
N.B. Cases in the public interest fit these special circumstances.
Facts
Issue
Holding
Reasoning
Lebel
British Columbia (Minister of Forests) v. Okanagan Indian Band, SCC
Members of the Okanagan Indian Band were logging on Crown land without authorization. The Minister
of Forests gave them a stop work order and went to court to enforce it. The Band claimed that they had
aboriginal title to the land but that they had no money and couldn’t go court. Since the BC government
was making them go to court, they asked the judge for interim costs so that they could defend
themselves. The trial judge said no to the demand of interim costs, but the BCCA said yes.
Is this order of interim costs correct?
Yes
It is the discretionary power of the court to award interim costs.
British Columbia (Minister of Forests) v. Okanagan Indian Band
Three conditions must be met for the court to award interim costs (see above).

Regarding the “special circumstances” requirement: the issues raised must transcend the
individual interests of the particular litigant and must be of public importance.

The Band’s case meets all of these criteria.

The trial judge erred by overemphasizing the importance of avoiding an order that prejudged the
issue, and by finding that the Band could have resorted to a CFA. (No lawyer would take this case.)
General Discussion of Cost and Interim Costs

The tradition of awarding interim costs comes from the courts of equity.

Normally costs are awarded at the end of the case, and the traditional aim of costs is to indemnify
15
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Dissent
Iaccobucci
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the winning party for their expenses in defending themselves against an unfounded claim.
This traditional definition has expanded to deal with unreasonable and vexatious litigants.
Costs have also been employed by the courts to ensure the efficient and orderly administration of
justice and access to justice. This is especially clear in constitutional and Charter cases.
Interim costs were developed as a response to concerns about access to justice and in light of
the desirability of mitigating severe inequality between litigants.
Interim costs are typically awarded in marital cases, trusts and bankruptcy cases.
When making interim cost awards, we must not over-burden the defendants too.
This case looks like judicial legal aid – this is too great of an expansion of interim cost awards.
The criteria given by the majority is not specific enough for a trial judge to apply it.
Costs in all Canadian jurisdictions are only a partial indemnification of the litigant’s legal costs.
Interim costs are unprecedented in Canada.
The Band could have accessed other resources.
Interim cost awards risk prejudging the merits of the case.
This is best decided by the legislatures, not the courts. We are expanding the law too far.
Little Sisters Book and Art Emporium v. Canada (Commissaire des Douanes et du Revenu), 2007
Jurisdiction Supreme Court on appeal from the court of appeal for British Columbia
Facts
LS seeks to have Customs bear the financial burden of its fresh complaint. It applied for advance costs
to cover an appeal and a systemic review of Customs’ practices. LS asks for a reversal of Customs’
obscenity determinations and a declaration that Customs has been construing and applying the relevant
legislation in an unconstitutional manner. The chambers judge granted advance costs, concluding that
the Okanagan test was satisfied. The Court of Appeal set aside the order.
Issue
Holding
Ratio
Bastarache
LeBel
Deschamps
Abella
Rothstein
Should advance costs be provided?
No. (Binnie and Fish JJ. dissenting)

Bringing an issue of public importance to the courts will not automatically entitle a litigant to
preferential costs treatment. Public interest advance costs orders must be granted with caution, as
a last resort, in circumstances where their necessity is clearly established. The standard is high.
When applying the test from Okanagan, a court must decide whether the case is sufficiently special that
it would be contrary to the interests of justice to deny the advance costs application.

The injustice that would arise if the application is not granted must relate both to the individual
applicant and to the public at large. No injustice can arise if the matter at issue could be settled,
or the public interest could be satisfied, without an advance costs award.
Other Requirements

The applicant must explore all other possible funding options, including costs immunities.

If the applicant can’t afford the suit but isn’t totally broke, they must contribute to the litigation.

Courts should consider whether other litigation is pending and may be conducted for the same
purpose, without requiring an interim order of costs.

If advance costs are granted, the litigant must relinquish some manner of control over how the
litigation proceeds.

An advance costs award is meant to provide a basic level of assistance necessary for the case to
proceed. Courts should set limits on the rates and hours of legal work chargeable and cap advance
costs awards at an appropriate global amount.
There are no special circumstances here. LS needed to show that the case was exceptional.

The appeal is extremely limited in scope. LS has advanced no evidence suggesting that these
four books are integral, or even important, to its operations.

With the systemic review, L is attempting to expand the scope of the litigation in hopes of bolstering
its legal rights in individual cases. This does not merit advanced costs.
The issues raised do not transcend the litigant’s individual interests.

The appeal concerns no interest beyond that of LS itself and does not justify advance costs.

The legal issues raised in the appeal were already considered, and ruled upon, in Little Sisters No. 1.

Not all Charter litigation is of exceptional public importance, even if it involves allegations of
infringements of freedom of expression. What must be proved is that the alleged Charter breach
begs to be resolved in the public interest.

Where only one possible result could render the case publicly important, the court should
not conclude that the public importance requirement is met. It is in general only when the public
importance of a case can be established regardless of the ultimate holding on the merits that a court
should consider the public importance requirement satisfied.
Bref: Lebel is closing the door that he opened in Okanagan. “Special circumstances” is narrowed.
Dissent
Per Binnie and Fish JJ. (dissenting): The Okanagan test is met.
16
Binnie
Fish




Facts
Issue
Holding
Reasoning
Dalphond
Alternate sources of funding were explored, and a finding of impecuniosity should not depend on the
existence of other parties able to bring a similar claim.
The claim to be adjudicated is prima facie meritorious.
The issues raised are of public importance and transcend individual interests. Given that 70%
of Customs detentions are of gay and lesbian material, there is unfinished business of high public
importance left over from Little Sisters No. 1.
While the proposed systemic review would be an impermissible expansion of the appeal, the appeal
permits LS to explore, within a limited context, the process under which the importation of these
books was banned, and provides an opportunity for systemic issues to be canvassed.
Hétu c. Notre Dame de Lourdes QC CA
Hétu was unjustly fired by the small rural municipality of Notre Dame de Lourdes. The municipality’s
administrators had a vendetta against him. He lodged three complaints to the Commission des relations
du travail, won each time, and was awarded reparations for his firing. The town appealed each
complaint to the SC. By this time Hétu was destitute and had only managed to pay his lawyers thus far
because his wife took out an extra mortgage. Hétu is applying for interim costs because of the
municipality’s abusive behaviour (“extreme juridical harassment”). At trial, the judge found that the
Okanagan test was not met.
Can interim costs be awarded?
Yes. ($12,500)

The CRT already found the town was being vexatious in their pursuit of Hétu.

The Trial judge held that the case fails under Okanagan because it is not of “public interest.”

Hétu claims that there is sufficient public interest in sanctioning the conduct of the municipality that
is preventing his access to justice.
General Remarks about Interim Costs

This is at the discretion of the courts.

It is considered to be interlocutory; new facts could change the calculation or the provision of IC.

There is concern regarding possibly prejudicing the results of the case.

Even with non-interim costs, we only award solicitor-client costs in exceptional cases (477 CCP)
With Regards to Hétu:

Art. 46 CCP gives the courts the power to award IC if the client can prove that, without this money,
they could not to fight their case and that the other parties are prime facie abusive. This would
constitute sufficiently special conditions under the Okanagan test.

His financial difficulties are a result of the vexatious and abusive actions of the town. It is clear that
the town is just “hitting the same nails over and over again”

Per arts. 2, 20, and 46 CCP, the court can sanction this conduct. (N.B. This is consistent with Viel.)

The reparations awarded by the CRT were never paid and were not enough to pay for Hétu’s costs.

The probability that the SC would overturn the CRT decision is very small.
Bref: This level of abuse fulfils the third category of the Okanagan Test.
Comment
N.B. If Hétu loses, he might be ordered to repay the $12,500.

Judges in this case admitted that the tariff was unable to really help people with no money.

Normally, costs are calculated by the tariff but with interim costs, the judge gets to decide.

This case radically changes the test from Okanagan.

These are clearly costs but they could be bordering on damages.

They are, figuratively speaking, conditional damages because he has to repay them if he loses.

Have we been forced to use innovative cost awards to encourage access to justice?
RJ: Hétu is not a public interest case. He is not getting interim costs; he is getting advanced damages.
Hétu c. Notre Dame de Lourdes
The judge here is grafting Royal Lepage into the Okanagan test in order to find that Hétu satisfies
the public interest element of the test. Hétu is seen as a very judicially creative case.
Articles 2, 20 & 46 of the CCP Amount to a Statutory Grant of Inherent Jurisdiction:
2. The CCP is intended to give effect to the substantive law and to ensure that it is carried out. ... The
CCP must be interpreted holistically, and, so far as possible, in such a way as to facilitate rather than to
delay or to end prematurely the normal advancement of cases.
20. Whenever this Code contains no provision for exercising any right, any proceeding may be adopted
which is not inconsistent with this Code or with some other provision of law.
17
46. The courts and judges have all the powers necessary for the exercise of their jurisdiction.
Facts
Issues
Holding
Reasoning
Royal Lepage Commercial inc. v. 109650 Canada Ltd.
Royal Lepage sued 109650 for the commission from a property sold. RL lost the first case and the judge
ordered them to pay other party’s extra-judicial costs because of abuse.
Can the court order extra-judicial costs in cases of abuse? What is abuse?
RL’s claim and proceedings were not abusive. They do not have to pay extra-judicial costs.

The trial judge found that there was abuse because:

The trial was supposed to last 5 days but it lasted 10 days.

Lepage’s accusation was a presumption with little convincing evidence to back it up.

The case became “a long, blind search” and it obliged the other party to take on a lawyer.
Normally, costs are awarded based on the Tariff des honoraires judiciares des avocats – and these costs
do not reflect extra-judicial costs. Costs may be awared above those in the Tariff:




When there is a cause importante
In some cases of bankruptcy
In some cases regarding food
When there has been abuse
Abuse includes:
(1) abuse in the commission of fault – i.e. reprehensible, outrageous, or abusive conduct
exercised in bad faith
(2) abuse in litigious behaviour – i.e. when judicial proceedings are undertaken in bad faith or
rashness. Abuse in litigious behaviour includes unnecessarily complicating proceedings and a
clear desire to hurt the other party.
Comments
Abuse limits the fundamental right to justice.

A party can have a weak case without the case being abusive.

To have abuse there must be indications of bad faith, or at least rashness.

The length of the trial was not extra-ordinary

There is no indication that RL had a desire to harm the other party.

There was no substantive breach, unlike in Viel or Trudeau (see: Boisvert article)

There was a useless multiplication of procedures, but this happens all the time.

We want to care about litigious behaviour but we can’t dissuade people from taking a new legal
argument. That is how the law progresses.
The legal fees were over 100,000$ but the land in question was only worth 30,000$!
The court makes some interesting policy statements here.
Notes – Costs and Abuses

Contrast abusive behaviour related to the breach itself with abusive or inappropriate litigious behaviour.

The latter can consist of either 1) abusive in the institution of the action or 2) abuse of procedure.
Are Extra-Judicial Fees Costs or Damages?
In Quebec, they are damages. To get them, we have to follow the regime of civil liability.

Art. 54.1ff CCP are new, and they change the law.

There is a strong link between the discussion of costs and abuse & vexatious litigants in Hétu and Royal Lepage.
In Ontario, under Rule 57, they are costs!

Ontario has a discretionary system in which full indemnity cost awards are within the discretion of the court.

In Ontario, there is much more discretion under Rule 57.01(4), and full indemnity costs may be available for
both abuse in the substance of the case and/or abuse in the procedure. i.e., Substantive abuse can
influence the award of full indemnity costs.
Costs and Abuses
Royal Lepage discusses a Viel, the case that set out the definition of abuse. Viel distinguishes between:
Abuse in the commission of the fault
o
Must involve bad faith and commission of fault (as seen in the Boisvert article)
o
Must be intentional, egregious and malicious
o
In an ideal world, abuse in the commission of a fault ought to be compensable by punitive damages.
However, punitive damages are often not available. (Art. 1621 CcQ: punitive damages are only
allowed when expressly allowed by law. As is, this is limited to the CPA and Quebec Charter violations.)
Abuse in the litigious behaviour
o
Vexatious claims
o
Abuse of the procedural process
18


Viel is a contracts case, wherein a party breached a contract for a right of first refusal and sold land to a third party.
The victim of the breach won $40K plus full costs, but the costs order was reversed on appeal because there was
no causal connection between the wrong committed and the costs of instituting an action.
It’s true that if there was no breach, the victim would not have had to sue, and thus incur the costs – but this is
always the case for a winning plaintiff.
What Royal Lepage takes from Viel:

Punitive damages are not justified on the mere basis of fault. There is a need to differentiate between abuse in the
commission of fault and abuse of procedure.

In a case of abuse through the commission of fault, the plaintiff needs to show a direct causal link between
the fault and damages suffered. I.e., the case falls under the ECO regime.

Full-indemnity costs are considered damages in Quebec, and are completely different from tariff costs.
In the rest of Canada this division is less clear. Ontario courts clearly increase the amount of costs in cases of
vexatiousness. In Quebec, Royal Lepage and Hétu leave this possibility open as well.
Introduction to SLAPPs

These are Strategic Lawsuit Against Public Participation or “poursuites–baillons” (gag lawsuits.)

SLAPPs are a reaction by a company or entity whose actions or policies are being publicly protested. The entity
takes a strategic lawsuit (usually in defamation), without substantial merit, with the sole aim of silencing the
defendant (who usually cannot afford costly litigation.)

Bref, the intention and effect are that intimidation stops protestors from exercising their right to speech.
How does a protester “SLAPP back?”

Motion to dismiss unfounded and frivolous actions

Summary judgment

Full indemnity costs based on abuse

Art. 54.1 incorporates elements of SLAPPs but is not directed exclusively at SLAPPs. It applies to unfounded
and frivolous claims, vexatious conduct, and bad faith.

Art. 54.1 gives judges new tools to deal with procedural abuse:
o
Reversal of the burden of proof
o
Dismissal of an action or plea
o
Strike out a submission
o
Terminate or refuse an examination
o
Require undertakings
o
Order a provision for costs
o
Order party to pay extra-judicial fees
o
Award punitive damages
o
Characterize party a vexatious litigant
THE COURT SYSTEM AND SUBJECT-MATTER-JURISDICTION
Department of Justice, Canada’s Court System
Provincial Courts:
Hear cases involving federal or provincial laws
Deal with most criminal offences, family law (except divorce), young offences, traffic violations, provincial
regulatory offences, and certain claims up to a set amount of money (including small claims)
Specialized courts exist in each provinch: e.g. Drug Treatment, Youth, Domestic Violence, Mental Health, etc.
Provincial Superior Courts (s. 96):
These have different names in different provinces: Court of Queen’s Bench, Cour Superieure, etc.
They have inherent jurisdiction, meaning they can hear cases in any area except those specifically limited
to a lower court. This jurisdiction includes serious criminal and civil cases, divorce, cases involving large sums
of money (the minimum amount set by provincial statute.)
Federal Courts:
19
-
Federal courts are essentially superior courts with civil jurisdiction.
They are created by Parliament and therefore can only deal with matters specified in federal statutes.
The court is based in Ottawa but travels to other cities.
Jurisdiction includes: interprovincial and federal-provincial disputes, intellectual property proceedings (because
it is governed under the Copyright Act), citizenship appeals, Competition Act cases, cases involving crown
corporations and government departments, and maritime law.
Supreme Court of Canada:
This is the final court of appeal from all other Canadian Courts. 3 of the 8 judges must come from QC.
Before a case reaches the SCC, it must exhaust all available appeals. Then it must be granted “leave” before
the SCC will hear the case. Leave applications are reviewed by usually 3 SCC judges.
Some cases do not have get leave e.g. criminal cases where a judge on the court of appeal dissented or
criminal cases were the person was acquitted at trial but convicted on appeal.
The government may also ask the SCC to consider questions on (a) any important matter of law or fact,
especially concerning the interpretation of the constitution, (b) the interpretation of any federal or provincial
legislation or the powers of the parliament or provincial legislatures.
Provincial Courts

Provincial courts are administered by the provinces in the name of the province.

The areas of provincial courts vary from province to province but generally include:
o
Criminal law: with the exception of big trials with juries.
o
Family law, excluding divorce
o
Civil claims, if they deal with them, are of minor importance.

N.B. The provincial court in ON has no jurisdiction over civil matters (art. 38)

Quebec is a big exception
o
Quebec has the highest civil jurisdiction in the country: cases 70K$ and under can go to the CQ.
o
Is the provincial government trying to encroach on federal jurisdiction? The increase in the value of cases
that can stay in QC happened at the exact same time as the Quiet Revolution – coincidence?
o
The CQ covers a vast region of Quebec whereas the CS is only in Montreal and Quebec City.

Small Claims
o
Art. 953 CCP: Small claims can only be brought by natural persons (i.e. no corporations.)
o
Parties can sue any legal person including corporations (who can’t be represented by a lawyer.)
o
Small claims court hears cases below $7K in QC, $10K in Canada, and $25K in ON and NS.
o
Art. 959 CCP: A claimant can’t split their claim to take advantage of small claims court.
o
Art. 959 CCP: Parties can’t be represented by a lawyer (unless the case involves complex legal issues, in
which case both parties can be represented.) Friends and family are allowed.
o
N.B. Other jurisdictions discourage the use of lawyers, but don’t prohibit them.
o
There are no appeals from small claims court.
Important: Provincial courts are statutory courts. They have no inherent jurisdiction. Their only jurisdiction is
that which is given to them through provincial statute. For Quebec, see art. 34 CCP.
Provincial Superior Courts

s. 129 BNA Act grants provincial superior courts residual or inherent jurisdiction.

Provincial superior courts do not hear appeals of provincial court judgments; those go to the court of appeal.

These courts are administered and regulated by the federal government.

Any complaints regarding judges go to the Canadian Judicial Council who oversees federal judges.

Judges receive training from the National Judicial Institution.
Why does the federal government appoint first instance judges? Hogg says it was justified on the basis of impartiality
and independence; to insulate courts from local pressures. Historically local judges were not always trained. More
generally, it maintains uniformity.
Federal Courts

s. 101 BNA Act grants Parliament the power to create courts for the better administration of laws in Canada.

One would think that anything that falls under s. 91 could go before Federal Court, but this is wrong.

Quebec North Shore Paper v. Canadian Pacific, [1976]: The federal court assumes jurisdiction of that which
falls in s.91; however, there must be an existing federal statute or the subject must fall under federal
common law (Aboriginal title is about the only thing that falls in this category.)

Federal courts are statutory courts.

The limited jurisdiction of federal courts can get confusing. Sometimes you have to go to different courts on
different matters. If the plaintiff wishes, in these cases, the whole thing can be moved to superior court.
Supreme Court

The SCC was also created under s. 101, and was established in 1875.
20
Factors Affecting Jurisdiction

Value of the Claim (in Civil Matters)
o
Claims under 70,000$ go to CQ and claims over 70,000$ go to Provincial Superior Court.
o
Value refers to the value of the case, not of the right. The sum claimed is not always the sum owed.
(Claimants can adjust the value of their claim to “fit into” the jurisdiction of a particular court.)
o
If the cost of the claims rises above $70K and you were at the CQ, the case gets remanded and sent up to
the QCSC. Remanding a case from one court to another can be used as an adversarial tactic.

Subject Matter

Small Claims
o
Should we limit it only to natural persons, or permit corporate bodies to sue here as well?
o
Should we incorporate mediation? Should you be permitted to appeal?
o
Should judges be limited in remedies? Should they be allowed to grant specific performance?
What Happens If You Are In The Wrong Court?

Art. 163 CCP: Seek a declinatory exception (i.e. ask for the suit to be referred to the proper court or
dismissed if there is no such court.)

ONRCP Rule 21.01(3): A defendant may move to have an action stayed or dismissed on the ground that the
court has no jurisdiction over the subject matter of the action.
Facts
Issues
Holding
Ratio
Ratio
Lamer
Dissent
McLachlin
Class Notes
MacMillan Bloedel v. Simpson, SCC, 1995
A 17-year-old was arrested and charged with contempt while protesting because the protest violated a
court injunction that forbade people from blocking logging trucks. At superior court, his lawyer asked for
the case to be sent to youth court (a provincial court) and was denied. He appeals, arguing that a recent
amendment to the Young Offenders Act said that the youth court should handled all cases of contempt
committed by youths, whether it was before their court or not.
Can parliament confer upon youth courts the exclusive power to try youths for contempt, thus excluding
superior courts? Does this excessively detract from the superior court’s full range of inherent powers?
Yes. (5-4) The Act infringes upon the “core” jurisdiction of the superior court.
There is a core jurisdiction of the superior courts that cannot be altered by any order of government,
save constitutional amendment.

The court must use the Residential Tenancies Test (not important here.) The test establishes that
the Act does not infringe s.96 of the Constitution Act.

However, this jurisdiction cannot be granted to the exclusion of provincial superior courts.

The provincial superior court is the only court of general jurisdiction in Canada. To remove
the power to punish contempt would maim the institution at the heart of our judicial system

Such alteration is not permitted without constitutional amendment.

The purpose of the “core” jurisdiction is to create uniformity in the judicial system across
the country. This core jurisdiction cannot be removed by any level of government

While inherent jurisdiction may be difficult to define, it is essential to the existence of a superior
court. To remove any part of this core would make it something other than a superior court.
McLachlin J. (dissenting)

If it passes the Residential Tenancies Test then this should be upheld.

There is no need to add an extra condition of “core” inherent powers of the superior court.

The federal and provincial legislatures can enact legislation that changes the jurisdictions of issues.

The inherent jurisdiction of the superior court exists to complement the statutory
assignment not to override it. The legislature should be able to define the powers of the courts.
Important: “S.96 is regarded as a means of protecting the "core" jurisdiction of the superior courts so
as to provide for some uniformity throughout the country in the judicial system. The case law has
developed principles to ensure that s. 96 would not be rendered meaningless through the use of the
provincial competence to constitute, maintain and organize provincial courts staffed with provincially
appointed judges having the same jurisdiction and powers as superior courts.” (Lamer J. at para 15)
CCP, Arts. 31, 33, 34-36.2, 1000
SUPERIOR COURT
31. The Superior Court is the court of original general jurisdiction; it hears in first instance every suit not
assigned exclusively to another court by a specific provision of law.
33. Excepting the Court of Appeal, the courts within the jurisdiction of the Parliament of Québec, and bodies politic,
legal persons established in the public interest or for a private interest within Québec are subject to the superintending
and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by
law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the
jurisdiction resulting from this article is excluded by some provision of a general or special law.
1000. The Superior Court hears exclusively, in first instance, all class actions.
21
THE COURT OF QUÉBEC
34. Except where a recourse is brought under Book IX, the Court of Québec has jurisdiction to the exclusion of
the Superior Court in any suit:

(1) wherein the sum claimed or the value of the thing demanded is less than $70,000, except suits for
alimentary pension and those reserved for the Federal Court of Canada;

(2) for specific performance, annulment, dissolution or rescission of a contract or for reduction of the
obligations resulting from a contract, when the value of the plaintiff's interest in the object of the dispute is
less than $70,000;

(3) to annul a lease when the amount claimed for rent and damages is less than $70,000.
N.B. Where a defense at the CQ makes a claim that would fall within the jurisdiction of the QCSC, the case is
remanded. Where an amendment to a claim at the QCSC falls within the jurisdiction of the CQ, the CQ hears the case.
Ss. 35, 36, 36.1 and 36.2 grant jurisdiction to the CQ over the recovery of taxes from municipalities or school
boards, the usurpation or unlawful exercise of a municipal office, adoption, and orders of psychiatric assessment
and institutionalization. The latter, in urgent cases, may also be heard by the municipal court of jurisdiction.
OCJA, Arts. 11, 23, 34, 38
11. The Chief Justice shall preside over the court, or, if he be absent, then the senior puisne judge, according to the
date of his commission. When the Chief Justice is unable to perform his duties, the senior puisne judge may perform
them until the Chief Justice resumes the performance thereof or is replaced.
11.1. Where the chief justice informs the Minister of Justice and the federal Minister of Justice of his decision to
abandon his office of chief justice, the Court of Appeal is then deemed to be composed, until a vacancy occurs, of the
number of judges provided for by section 6 and of one additional office of judge.
23. Such judges shall exercise their functions in the judicial districts assigned to them.
34. Whenever the despatch of judicial business in any district requires the services of more judges than there are in
such district, the chief justice shall require one or more judges to discharge their duties temporarily in such district.
38. Two or more judges discharging their duties in the same district may and shall, whenever the despatch of
business requires, sit at the same time and at the same place, but in separate apartments, in term or in vacation, and
each shall have jurisdiction to hear and determine all cases and matters submitted to him, and the same power as if
he were the only judge sitting in such place.
Jurisdiction of Federal Courts in Canada (see ss.17-18 of Federal Courts Act)

The Federal Court has jurisdiction where a statutory grant of jurisdiction is made by Parliament, there is a
body of federal law essential to the disposition of the case; and where the law on which the case is based is a
“law of Canada”.

The Federal Court has concurrent original jurisdiction (s.18) over most civil claims involving the Crown,
including cases where the Crown or AG of Canada claims relief, and Cases against any person for an act or
omission as an officer of the Crown.

The Federal Court has exclusive original jurisdiction (s.18) over:
o
Cases where parties have agreed to the Court’s jurisdiction in writing.
o
Cases involving patents, trademark, IP, topography, and industrial design.
o
Cases where no other court has jurisdiction.
o
Cases to issue injunctions, writs of certiorari/prohibition/mandamus/quo warranto, or grant
declaratory relief against any federal board, commission, or tribunal (not including the Tax Court,
Senate, House of Commons, or any Committees.)
o
Cases for applications of writs of habeas corpus ad subjiciendum, certiorari, prohibition or mandamus
in relation to any member of Canadian Forces serving outside Canada.


If the provincial legislatures agree, the FC can determine federal-provincial or interprovincial disputes.
Application for judicial review can be made by the AG of Canada or anyone directly affected.
R. v. Zolowtow – 2008 ONCA
Facts: Zolotow failed to declare diamonds worth $900,000 at Canada Customs, which seized them. He filed a claim to
seek their return. Because the diamonds were seized after the period provided as a legal “seizure” for Customs,
Zolotow claims that this is a CML property case and that the ONCA has jurisdiction. The judge stayed the action under
s. 106 of the Courts of Justice Act, finding that the Federal Court is the preferred jurisdiction to advance the claim.
Issue: Did the Superior Court judge correctly exercise discretion to stay the action under s. 106 OCJA? Yes.




Superior court judges have discretion in cases of concurrent original jurisdiction to hear the case or stay the
action to the Federal Court.
Both courts have jurisdiction over common law actions in detinue against the Federal Crown.
Because the seizure alleges the federal Customs Act as authority, it is proper that this case be determined by
the court of the jurisdiction to which Act applies.
Where the legislation cited as the pivotal issue, the jurisdiction best applied to it should be considered.
22
APPELLATE COURTS AND THEIR JURISDICTION
Key Features and Role of Appellate System – Standard of Review

Courts of Appeal in Canada are always s. 96 courts

The right to appeal a decision is a widespread (but not unlimited) procedural right.
o
E.g. Art. 26 CCP grants an automatic right of appeal to superior court decisions over $50K, contempt
orders, and adoption orders.
o
Ss. 6, 17 and 18 OCJA: the Divisional Court hears appeals as of right when the order is below $50K.
Judges of the Superior Court of Justice sit on the Divisional Court in an appellate capacity.

The ONCA (for cases over $50K) will hear appeals from the Divisional Court of Appeal if leave is granted.

The court will grant leave to appeal if there is an issue of principle, a new issue, or a question of law that has
conflicting judicial precedents (See art. 26(8) CCP)

For appeals with leave of the court, the prescription period is usually 30 days for both the application for leave
and the appeal itself (See 494 CCP; Rule 61.04 ONRCP.) Applications are usually required in writing.
Standard of Review



The role of the appellate courts is to delineate and refine legal rules and ensure their universal
application. (Housen)
The role of trial courts is to resolve individual disputes based on facts before them and settled law.
Determining the appropriate amount of deference due to the trial judge is a policy decision.
o
o



Narrow/Minimalist View: The CA should only overturn the TJ when there is a palpable and overriding
error. (This is the standard in Canada set out in Housen.)
Maximalist/Expansive View: The CA should overturn the TJ where there is any sort of error.
Consider the efficiency of the civil justice system. (When is “enough” enough?)
We must promote the legitimacy and integrity (and the appearance thereof) of trial court decisions.
We must recognize the role most suitable to trial judges as finders of fact.
Should people be able to automatically appeal a ruling of first instance, or should they require leave?

There is nothing inherent in the decision-making process that calls for a second chance. However, we want to
ensure people trust the civil justice system, so we want to make sure that wrong decisions can be changed. The
right of appeal is therefore a pragmatic necessity.

We want errors corrected, unjust decisions righted, and the rule of law affirmed.

But we also want finality in litigation, resolution of disputes, and implementation of the will of the legislature
What should be the criteria for the appeal?

In Quebec, there are both ‘automatic’ and ‘on leave’ appeals. You have 30 days to appeal. Automatic appeals
occur in cases where damages are $50K or more or in certain subject matters, e.g. contempt, adoption.

Some courts only hear appeals on written motion, and not upon oral argumentation (e.g. SCC, ONCA)

The SCC only gives leave on questions of national importance.

In general, courts of appeal only give leave when the case will create a new principle of law, not when the court
believes they would render a different judgment.

Ontario Courts are a bit confusing. The Superior Court of Justice (s. 96) has two chambers: the Superior Court
and the Division Court, which is a branch of the Superior Court
o
If a judgment of the SC is $25K or more you go to the Court of Appeals.
o
If it is less than $25,000 you can seek leave to appeal it to the Division Court. (This is odd because
you’re appealing to a branch of the same level of court you had your first ruling in.)
What is the role of the appellate judge? What is the standard of review?

The CA has more people, and more time for reflection and error correction than the trial court.

The TJ has the advantage of having heard all the evidence first-hand.
The Standard of Review (Housen)

Questions of law are subject to a standard of correctness. (Little deference is shown to the TJ.)

Questions of fact are subject to a standard of palpable and overriding error.
23
CCP, Arts. 25, 26, 27, 29, 30
25. The Court of Appeal is the general appeal tribunal for Québec; it hears appeals from any judgment from
which an appeal lies, failing an express provision to the contrary.
26. Unless otherwise provided, an appeal lies

from any final judgment of the Superior Court or the Court of Québec, except in a case where the value of the
object of the dispute in appeal is less than $50,000;

from any final judgment of the Court of Québec in a case where such court has exclusive jurisdiction under
any Act other than this Code;

from any final judgment rendered in matters of contempt of court for which there is no other recourse;

from any judgment or order in matters of adoption;

from any final judgment in matters concerning confinement in an institution or psychiatric assessment;

from any judgment or order rendered in the following matters:
o
changes made to the register of civil status;
o
tutorships to minors or absentees and declaratory judgments of death;
o
tutorship councils;
o
protective supervision of persons of full age and the homologation of a mandate given by a person in
anticipation of his incapacity.
An appeal also lies, with leave of a judge of the Court of Appeal, when the matter at issue is one which ought to
be submitted to the Court of Appeal, particularly where, in the opinion of the judge, the matter at issue is a
question of principle, a new issue or a question of law that has given rise to conflicting judicial precedents,

from any judgment or order rendered under the provisions of Book VI of this Code;

from any judgment ruling on a motion to quash a seizure before judgment;

from any judgment or order rendered in matters concerning execution;

from any judgment rendered under article 846;

from any other final judgment of the Superior Court or the Court of Québec.
26.0.1. Where leave to appeal has already been given by a judge or an appeal has already been brought by a party to
the proceeding under one of the provisions of this section, any other party may bring an appeal as of right.
26.1. A judgment awarding damages for bodily injury is a final judgment even if it reserves the right of the plaintiff to
apply for additional damages. (2) In determining the value of the object of the dispute in appeal from the judgment
ruling on an application for additional damages, account is taken only of the application for additional damages.
27. In determining the value of the object of the dispute in appeal for the purposes of article 26, account shall be
taken of interest accrued on the date of the judgment in first instance and of the indemnity referred to in article 1619
of the Civil Code, but not of costs.
29. An appeal also lies, in accordance with article 511, from an interlocutory judgment of the Superior Court or the
Court of Québec but, as regards youth matters, only in a matter of adoption:

when it in part decides the issues;

when it orders the doing of anything which cannot be remedied by the final judgment; or

when it unnecessarily delays the trial of the suit.
However, an interlocutory judgment rendered during the trial cannot be appealed immediately and it cannot
be put in question except on appeal from the final judgment, unless it disallows an objection to evidence
based upon article 308 of this Code or on section 9 of the Charter of human rights and freedoms (chapter C-12), or
unless it allows an objection to evidence.
Any judgment is interlocutory which is rendered during the suit before the final judgment.
OCJA, Arts. 6, 8, 18, 19
6.(1) An appeal lies to the Court of Appeal from,
a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court
of Appeal as provided in the rules of court;
b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19 (1) (a) or an
order from which an appeal lies to the Divisional Court under another Act;
c) a certificate of assessment of costs issued in a proceeding in the Court of Appeal, on an issue in respect of
which an objection was served under the rules of court
Combining of appeals from other courts
(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the
Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.
(3) The Court of Appeal may, on motion, transfer an appeal that has already been commenced in the Divisional
Court or the Superior Court of Justice to the Court of Appeal for the purpose of subsection (2).
24
References to Court of Appeal
8. (1) The Lieutenant Governor in Council may refer any question to the CA for hearing and consideration.
(2) The court shall certify its opinion to the LGIC, accompanied by a statement of the reasons for it, and any judge
who differs from the opinion may certify his or her opinion and reasons in the same manner.
(3) On the hearing of the question, the Attorney General of Ontario is entitled to make submissions to the court.
(4) The AG of Canada shall be notified and is entitled to make submissions to the court if the question relates to the
constitutional validity or constitutional applicability of an Act, or of a regulation or by-law made under an Act, of the
Parliament of Canada or the Legislature.
(5) The court may direct that any person interested, or any one or more persons as representatives of a class of
persons interested, be notified of the hearing and be entitled to make submissions to the court.
(6) If an interest affected is not represented by counsel, the court may request counsel to argue on behalf
of the interest and the reasonable expenses of counsel shall be paid by the Minister of Finance.
(7) The opinion of the court shall be deemed to be a judgment of the court and an appeal lies from it as from a
judgment in an action.
Divisional Court
18.(1) The branch of the Superior Court of Justice known as the Divisional Court is continued under the name
Divisional Court in English and Cour divisionnaire in French.
(2)The Divisional Court consists of the Chief Justice of the Superior Court of Justice, who is president of the Divisional
Court, the associate chief justice and such other judges as the Chief Justice designates from time to time.
(3)Every judge of the Superior Court of Justice is also a judge of the Divisional Court.
19. (1) An appeal lies to the Divisional Court from,
a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);
b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court;
c) a final order of a master or case management master.
Combining of appeals from Superior Court of Justice
(2) The Divisional Court has jurisdiction to hear and determine an appeal that lies to the Superior Court of Justice if
an appeal in the same proceeding lies to and is taken to the Divisional Court.
(3) The Divisional Court may, on motion, transfer an appeal that has already been commenced in the Superior Court
of Justice to the Divisional Court for the purpose of subsection (2).
(4) No appeal lies from an interlocutory order of a judge of the Superior Court of Justice made on an appeal from
an interlocutory order of the Ontario Court of Justice.
Facts
Issues
Dispositions
Reasoning
Housen v. Nikolaisen, SCC, 2002
Housen was in a car accident and became a quadriplegic. He won $2.5 million in damages. The
appeal concerns the distribution of damages between Housen (who was found to be contributorily
negligent), driver, and the municipality (also found negligent.) The Trial judge held the municipality
to be 35% liable; the court of appeal held no liability for municipality.
When the trial judge assessed the liability of the various parties, to what extent can the appellate
court substitute its own judgment?
The appellate can only substitute its own judgment in cases of palpable and overriding error.

General theory: A court of appeal should not interfere with a trial judge’s reasons unless
there is a palpable and overriding error. The appellate court must not retry a case and
must not substitute its analysis of the evidence for the analysis of the trial judge.
Housen v. Nikolaisen

Palpable error refers to an error that is plainly seen
Questions of law are subject to a correctness standard

The court must ensure that the same legal rules are applied universally.

The appellate court has a distinct law-making role.
Questions of fact are only reviewable in the case of a palpable and overriding error

The trial judge has expertise and an advantageous position from which to gauge the facts.

We must limit the number, length and cost of appeals. The parties have already paid for a
25

whole trial, and we can’t have duplicate judicial proceedings.
We must promote the autonomy and integrity of trial proceedings. People need to know that
trial judges are fair and appeals need to be exception, not the rule.
Inferences of fact are only reviewable in the case of a palpable and overriding error

Even in cases where the finding of fact is neither inextricably linked to credibility of testifying
witness nor based on a misapprehension of evidence, the standard remains.

We should not distinguish between ‘factual findings’ and ‘factual inference’ as this would allow
appellate courts to reweigh evidence and thereby interfere with the TJ’s weighing of evidence.

The CA must show deference to the TJ’s decision not just because of the TJ’s advantage in
hearing witnesses, but for a whole host of policy reasons mentioned above.

The TJ is an expert at weighing evidence and considering all the evidence of a case.
Questions of mixed fact and law are subject to a spectrum of standards from palpable and
overriding error to correctness.

Questions of mixed fact and law involve applying a legal standard to a set of facts, whereas
factual findings or inferences require making a conclusion of fact based on a set of facts.

Both questions of mixed fact and law and factual findings often involve drawing inferences; the
difference lies in whether the inference drawn is legal or factual.

E.g. the question of whether the municipality ought to have known about the hazard
requires both a factual finding (regarding the municipality’s knowledge) and the application
of a legal standard.

The standard is hard to determine, because making an error on a question of mixed fact and
law is often equivalent of making error in law.

Facts are sometimes so particular that the decision has little precedential value.

When the question of mixed fact and law at issue is a finding of negligence, the C.A.
should defer to trial judge. (Note: juries sometimes make findings of negligence, and we
don’t want every finding by a jury to go to appeal. We should only appeal jury findings when
the finding is “plainly unreasonable and unjust” based on the evidence.)
o
o
o
Findings of negligence = inference of fact; palpable and overriding error.
Statement of legal standard of care = finding of law; correctness
Determining whether defendant failed to meet standard of care = fact
Bastarache J. (dissenting + Gonthier, Binnie, and LeBel)

The standard of care for findings of negligence should be correctness.

When the TJ has to decide “whether conduct was reasonable under all the circumstances,”
this is a normative, policy-making decision that appellate courts should fill.

The TJ could pick the right standard to determine reasonableness, but could misapply it.

Not all matters of mixed fact and law are reviewable under the standard of correctness.
Class Notes




The primary role of trial courts is to resolve individual cases based on the facts before them,
i.e., looking back at the evidence.
The primary role of appellate courts is to delineate and refine legal roles to ensure their
universal application, i.e. looking forward.
Minimalist view (majority): Unless the mixed question turns on the law itself, we will apply
the higher standard. Mixed questions are given more or less the same deference as questions
of fact. The CA would only show less deference if the TJ used the wrong legal standard.
Maximalist view (dissent): Courts should have a wide margin for review, especially in cases
of mixed law and fact. Every assessment of contributory negligence involves issues of law and
fact, and are too important to be entrusted to only the trial court. Even if they used the right
standard, we still reserve the right to review. Every assessment of fact through the lens of a
legal standard involves policy decisions and therefore becomes a question of law.
Housen v. Nikolaisen – Class Notes
Recall Okanagan as an example of the scope of appellate review. That case involved the appeal of
an interim costs order.

Cost orders are within the discretion of the court. When is discretion held to have failed?

This is a question of mixed fact and law.

The trial judge’s concern about prejudging the case suggests that it is a question of law;
however, the assertion that they could have found alternative sources of support constitutes a
question of fact.

The majority finds that the TJ made two errors: he overemphasized the concern of prejudice
[i.e. incorrectly weighed a policy consideration] and made an unrealistic finding of fact
regarding the alternative sources of funding.
26


It looks like Lebel J. didn’t even consider deference – he just overturned the ruling.
The minority finds that there was no error of law, and shows a lot of deference to the TJ.
JUDICIAL INDEPENDENCE AND IMPARTIALITY








Ideal Qualities of a Judiciary
Independence
Impartiality
Integrity (Ethics)
Equality
Diligence
Expertise (competence)
Accountability / transparency
Accessibility (efficiency)
PUBLICITY OF JUDICIAL PROCEEDINGS
‘Open Court’ principle
“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It
keeps the judge himself, while trying, under trial.” J. Bentham
“In any constitutional climate the admin of justice thrives on exposure to light – and withers under a cloud of secrecy.”
Fish, J., Toronto Star Newspapers v. Ontario [2005] 2 S.C.R. 188




Why is



We need to see how the judge renders judgment to ensure that it is done in a non-arbitrary way.
Public justice means that judges are available to public scrutiny.
Publicity is linked to fundamental democratic values, to the rule of law, freedom of the press, etc.
s. 23 of the QC Charter indicates a “public” hearing; s. 11(d) of the Canadian Charter guarantees a “fair and
public hearing” in criminal proceedings; ALI/UNIDROIT s. 20; s. 135, 137 OCJA, ON indicates “all court
hearings must be open to the public”; Art. 13 CCP
the open court principle so important?
(1) Subjects judges to scrutiny [guarantees integrity, promotes public confidence]
(2) Makes law more accessible to people [Promotes public confidence, demystifies the law]
(3) Follows the Charter principles of freedom of expression and freedom of the press
o
Allows for open and public discussion of issues.
Exceptions to the Open Court Principle
You apply to the court for a specific infringement of the open court principle; not a blanket override

Publication bans (See Dagenais)

Exclusion orders (i.e. in camera hearings) (Art. 13 CCP; Ontario Child and Family Services Act)

Sealing or confidentiality orders (Sierra Club)

Anonymity orders (art. 815.4 CCP)
Why limit the publicity of hearings?

When the right to a fair trial is at risk
o
E.g. In Dagenais, the night before the judge was going to instruct the jury, the CBC wanted to air a
mini-series loosely based on the trial.

When parties are vulnerable
o
In Canada, courts care less about embarrassment – but they care about youth and vulnerable parties,
(Markowitz; “I have no doubt that revelation of the facts in this case will cause great embarrassment,
however that is not enough to justify a publication ban, indeed, the record is replete with such cases”
o
Usually in these cases you would use a pseudonym or initials.

Protection of witnesses
o
The fear of harm may discourage witnesses from coming forward and/or being honest in their
recollection of the facts. N.B. Witness protection is really rare.

Clashes between the administration of justice and police investigation
o
Criminal Code s. 83(28) – enacted post 9/11 to deal with acts of terrorism – tries to balance the open
court principle against the need for effective investigations.
o
E.g. Vancouver Sun – the order was in camera, and no one was notified of the hearing about the Air
India bombing. The Sun finds out about this by accident.

Bastarache (dissenting): Surprise and secrecy are essential to certain police investigations.

Protection of Innocent Parties
o
Even if a person is cleared, they are often stigmatized simply for their involvement.
27
o
o
Ontario Child and Family Services Act – all hearings with regards to children are in camera unless the
court makes it public.
Art. 13 CCP – in family matters, sittings of first instance are generally held in camera.

This is a very broad reversal of the open court principle.

CCP art. 815.4 – no information that could lead to the identification of a party or a child may
be published unless the court so authorizes.
N.B: ADR is not public and not published. People who do not want to air their dirty laundry may be tempted to use
ADR and JDR for reasons of confidentiality.
Facts
Issues
Dispositions
Reasoning
Class Notes
Dagenais v. CBC, SCC, 1994
The CBC was poised to air “The Boys of St. Vincent” during a trial of the case that inspired the
miniseries.
Will the broadcast detract from the defendant’s right to a fair trial?
Yes – the publication ban is upheld
1. Is the ban necessary to prevent a real and substantial risk to the fairness of the trial?

It is necessary to prevent harm

There are no reasonable alternatives
2. Do the salutary effects of ban outweigh deleterious effects to freedom of expression?



This test is used in Vancouver Sun, Sierra, Boeing and JL v. AN.
This is a criminal case, so we care more about procedural fairness. What about contexts
outside the criminal domain?
In Sierra Club and Boeing, the context is the protection of a commercial interest.
Should we televise court proceedings?

In 1992, R v. Squires challenged a prohibition against filming a court proceeding. The prohibition was found to
breach the Charter, but was justified by s. 1 as it maintained order and decorum in the courts

Some courts, however, are voluntarily entering into agreements about televising (BC, ON CA).
How far




should the open court principle go? Should we allow cameras?
Cameras were allowed in Truscott. This was the first televised criminal appeal in Canada.
Cameras were allowed in the Morgantaler appeal at the NBCA.
The SCC has an automated camera that focuses on where the noise is coming from.
Is it a different kind of openness to only allow court sketches and journalists taking notes?
Balancing Confidentiality and Freedom of the Press

Often, publication bans are granted as preliminary orders. The media may not know about the case and may
not be able to make arguments against the ban.

Techniques for informing the media include:
o
Advance notice and granting intervenor status
o
In Alberta, there is an e-database for media who are interested in publication bans. Subscribers are
automatically notified when an issue arises. (This is better than letting judges do it proprio motu.)
o
In Nova Scotia, there is a website where parties can register, but it is maintained by University of
Kings College, not the courts.

There are significant costs to the media to challenge publication bans.

Paradoxically, asking for a ban actually increases the likelihood that someone will notice the case!
CCP, Arts. 13, 815.4
13. The sittings of the courts are public wherever they may be held, but the court may order that they be held in
camera in the interests of good morals or public order.
However, in family matters, sittings in first instance are held in camera, unless the court, upon application, orders
that, in the interests of justice, a sitting be public. Any journalist who proves his capacity is admitted to sittings held in
camera, without further formality, unless the court considers his presence detrimental to a person whose interests
may be affected by the proceedings. This paragraph applies notwithstanding section 23 of the Charter of human rights
and freedoms (chapter C-12).
The rules of practice may determine the conditions and modalities relating to sittings in camera in respect of advocates
and articled students within the meaning of the Act respecting the Barreau du Québec (chapter B-1).
------------PROCEEDINGS IN FAMILY CASES,
815.4. No information that would allow the identification of a party to a proceeding or of a child whose
interest is at stake in a proceeding may be published or broadcast unless the court or the law authorizes it or
28
unless that publication or broadcast is necessary to permit the application of an Act or a regulation.
Furthermore, the judge may, in a special case, prohibit or restrict, for such time and on such conditions as he may
deem fair and reasonable, the publication or broadcast of information pertaining to a sitting of the court.
OCJA, Arts. 135
Public hearings
135.(1)Subject to subsection (2) and rules of court, all court hearings shall be open to the public.
Exception
(2) The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to
any person justifies a departure from the general principle that court hearings should be open to the public.
Disclosure of information
(3) Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is
not contempt of court unless the court expressly prohibited the disclosure of the information.
ALI/UNIDROIT, Principle 20
20. Public Proceedings
20.1 Ordinarily, oral hearings, including hearings in which evidence is presented and in which judgment is
pronounced, should be open to the public. Following consultation with the parties, the court may order that hearings or
portions thereof be kept confidential in the interest of justice, public safety, or privacy.
20.2 Court files and records should be public or otherwise accessible to persons with a legal
interest or making a responsible inquiry, according to forum law.
20.3 In the interest of justice, public safety, or privacy, if the proceedings are public, the
judge may order part of them to be conducted in private.
20.4 Judgments, including supporting reasons, and ordinarily other orders, should be
accessible to the public.
Kent Roach, “Let the Light Shine In”
Dagenais never led to a new era of open courts and press freedom.

Priority instead was given to the interests of privacy of certain groups (children, police informants)

The non-publicity of applications for bans means media doesn’t even know about them to challenge them!

Even if the media finds out, funds for challenges are limited.
The weakness of Dagenais is that appellate courts cannot hear publications ban challenges.

Media seeking to challenge must obtain leave to appeal from the SCC. This is costly and doomed to fail.

By the time the Court can make a ruling on the ban, the proceeding is likely to have ended

The DoJ has ignored the SCC’s pleas to allow provincial appellate courts to hear appeals.

In R. v. Mentuk, judges were instructed to consider the rights of the press even when the media are not there to
assert them. Media learns in advance of bans only by happenstance.
Facts
Issues
Dispositions
Ratio
Reasoning
Re Vancouver Sun, SCC, 2004 – Application of the Dagenais Test
The Judge allowed the Crown, under a special investigative provision of Criminal Code, to conduct
an in camera investigative hearing of a witness in the Air India investigation. No notice was given
to the Air India Trial, the press, the public or the accused. The witness himself was prohibited
from giving any information. By chance, the Vancouver Sun learned of the hearing and filed a
motion seeking access to the pleadings and an order that the proceedings be open to the public.
What level of secrecy should apply to a judicial investigative hearing (s. 83.28 Crim Code)?

At the level of applying for an investigative hearing, secrecy is justified. This stage of the case
is akin to the issuance of a search warrant, and thus the imperatives of the investigation itself
warrant a degree of secrecy.

However secrecy of the hearing itself not justified, per the Dagenais test.
The presumption of openness with respect to hearings can only be displaced upon proper
consideration of the competing interest at every stage in the process (i.e. the Dagenais test.)
“Where a potential Crown witness in an ongoing trial becomes the subject of the investigative
order, it is obvious third party interests have to be considered.”
Dagenais Test – (to strike a balance between freedom of expression and due process)
A publication ban should be ordered only when:

There is minimal impairment: i.e., the ban is necessary to prevent a serious risk to the
proper administration of justice because reasonably alternative measures will not prevent
the risk.

It is necessary: i.e., the initial application to hold a special investigative hearing is
analogous to a hearing for a search warrant. It is presumptively secret since the Court
does not want to tip off the suspect. The investigative hearing itself is different.

It is proportional: i.e., do the salutary effects of the ban outweigh the deleterious effects
to freedom of expression and on the rights and interests of the parties and the public?
Consider the effects on free expression, right to a fair and public trial, public safety, etc.)
29
This test applies to all discretionary actions by a judge to limit free expression.
Bastarache J (dissenting in part)

The hearing should be kept secret. Considerations such as the proper administration of
justice and the rights and safety of third parties (i.e. the public) warrant the curtailment
of public access to these special investigative proceedings.

Since the content of the hearings can’t be known in advance, there is a risk that
information revealed would tip off other suspects and therefore render the hearings
ineffective as an investigative tool.

Witnesses may be deterred from speaking honestly for fear of reprisals.
Facts
Issues
Dispositions
Ratio
Reasoning
Sierra Club of Canada v. Canada (2002) SCC

The Federal Government granted financial assistance to Atomic Energy of Canada Ltd (AEC) to
export nuclear reactors to China. Sierra Club wants a judicial review of the decision. It claims
that the government failed to do an environmental impact assessment of the beneficiary
project, which is required by legislation.

The AEC and feds have a valid defence if they can show that the Chinese were doing their own
environment assessment of the project. However, this information is contained in documents
provided by China on condition of confidentiality.

The government wants a confidentiality order which would mean that the information would
only be available to the parties and the court, not to the public.
When, and under what circumstances, should a confidentiality order (sealing order) be granted?
The confidentiality order issued, since without it, the government would have to breach its
contract with China in order to defend itself.
The risk assessed on in the Dagenais test may refer to an important commercial interest,
provided the commercial interest reflects a general principle at stake for commercial parties.

The openness of courts inextricably linked to free expression in Charter s.2(b)

The Dagenais test guides judicial discretion to grant a publication ban in face of Charter
principles, by requiring identification of an interest that outweighs free expression.
Adaptation of the Test: A confidentiality order should only be granted based on:
a. [Necessity] Such an order is necessary to prevent a serious risk to an important interest,
including a commercial interest, provided it is a general interest of commercial parties;
b. [Proportionality] The beneficial effects of the confidentiality order, including the effects
on the right civil litigants to a fair trial, outweigh its deleterious effects.

Class Notes
Facts
Issues
Ratio
Reasoning
There is a serious risk to AEC if the Confidential Documents are disclosed, since their
contractual obligations are bound to their commercial interests.

There are no reasonable alternative measures. Expunging would deny AEC a valid
defence, and Sierra rejected the option of summaries.

The primary interest served by the Order is a public interest in the right of a litigant to
present its case (i.e. the right to a fair trial.)

The deleterious effect of the order is that it would deny public access to documents
bearing (tangentially) on substantial public expenditures. (However, the documents were
limited and highly technical anyway.)
Compare Vancouver Sun and Sierra Club:

The restriction and level of secrecy in Vancouver Sun was more extensive, and dealt with
a novel, controversial procedure (i.e. a ban on access to the entire hearing.)

Sierra Club’s restriction is comparatively minimal: non-party access to certain documents.

Bachand doesn’t like that the court allowed private interest to trump public interest.

Iacobucci dwells on the highly technical nature of the documents, arguing that the public
wouldn’t likely understand their content anyway.
Boeing Satellite Systems International v. Telesat Canada, ON SC, 2007
Boeing built Telesat a satellite; Telesat is claiming damages because it malfunctioned. The trial J.
made an order temporarily sealing the court file to protect allegedly confidential information in the
contract, and directed that the media be notified to make submissions on the sealing order.
Is the sealing order justified? No.
A confidentiality order to protect commercial interests must be rare.
The commercial interest must also be public in nature.

Boeing and Telesat maintain they have an obligation of confidentiality concerning the contract.

They argue that it’s not in the public interest that they should be required to sacrifice their
confidential business relationship in order to get their dispute adjudicated in the courts (i.e.,
that there is a public interest in the parties’ privacy expectations being protected.)
30




Facts
Issues
Dispositions
Ratio
Reasoning
In Sierra Club, the SCC recognized that confidentiality orders may be granted to protect a
party’s commercial interests, but there must be at least significant potential harm, and the
burden of proof is on the applicant.
The media submits that since the case involves two major Canadian broadcasting companies,
it’s a matter of public interest.
There is no evidence of serious harm resulting from public access to parties’ statements of
claim. Their contract is a regular old procurement contract.
It is not sufficient that the parties agreed between themselves to keep the
particulars of their contractual/business relationship confidential.
J.L. v. A.N.
JL sues AN for giving her herpes. JL applies for a publication ban on the parties’ names.
Can the court issue a publication ban on the parties’ names?
No. People with herpes don’t deserve rights.
The fact that a judgment contains embarrassing details about the parties will not be enough to justify
a publication ban on their names.

13 CPC: All hearings are public unless there’s an issue of public order or morals at stake.

The Dagenais test applies. Even if a hearing will reveal medical history, sexual history, or
embarrassing details about the parties’ lives, it is not sufficient to justify a publication ban.

The fact that the decision will be read by many people does not change anything.
Class Notes
Globe and Mail v. Canada (AG) .
Facts
Issues
Dispositions
Ratio
Reasoning
Class Notes
JUDICIAL INDEPENDENCE
Impartiality v. Independence
The concepts of judicial independence and impartiality are linked and often spoken together but they are different.
Independence must be there in order for there to be impartiality.


Impartiality - Refers to the state of mind we want judges to have. Judges must be neutral and approach any
case without any bias and must have an open mind.
Independence - refers to the external conditions that allow judges to be impartial. We want to create a
judicial environment which is not subject to the state, police, and power and other outside influences.
“All legal arbiters are bound to apply the law as they understand it to the facts of the individual cases as they find
them. They must do so without fear or favour, affection or ill-will, that is, without partiality or prejudice. Justice is
portrayed as blind not because she ignores the facts and circumstances of individual cases but because she shuts her
eyes to all considerations extraneous to the particular case.” Locabail Ltd., UK, 2000
“Justice should not only be done but should manifestly and undoubtedly be seen to be done.” R. v. Sussex, UK, 1924
Ensuring Judicial Independence
Institutional independence is established via the separation of powers (i.e. autonomy from the executive branch.)
Administrative independence requires that the judiciary have some role in administering themselves. Canada has
an executive model of court administration, which bothers lots of judges – i.e. Superior courts are federal but are
administered by the provinces. Judges say this doesn’t allow them to set their priorities, and gives them no
discretionary power. They advocate for a limited autonomy model which would give them more control over
administration.
Decisional Autonomy rests on a number of factors.

Financial security
o
If you do not pay judges adequately (above an absolute level), they will be susceptible to influence
(from bribes)
o
If judges’ salaries are not fixed, and are subject to arbitrary change, the other branches of
government could use the power to change judges’ salaries in order to affect their decisions
o
In Canada, Parliament fixes federal judges’ salaries (s.100 Constitution Act 1867)
o
Parliament cannot change judges’ salaries directly – there needed a buffer body between Legislative
branch and Judicature. In 1999, the government created the Judicial Compensation and Benefits
31
Commission to act as a buffer when determining judicial pay changes.
It was later decided (Reference re Remuneration of Judges of the Provincial Court, SCC 1997) that
provincial judges’ salaries could not be changed by provincial legislatures arbitrarily, and also need a
buffer commission (i.e., ss. 96-100 C.A. 1867 applied to provincial judges “in spirit.”)
o
If the provincial government does not follow the Commission’s recommendation on the pay of judges,
that decision will be subject to judicial review (Provincial Court Judges Association of N.B., 2005)
Security of Tenure
o
There is a mandatory retirement age of 75.
o
Longer tenure means more independence. Judges are not worried about having to face job renewals
or re-election. However, it makes it hard to get rid of the bad apples.
Judicial Immunity
o
Judges cannot be civilly liable for any decisions they make as a judge.
o
The recourse to complain about a judge is through the Canadian Judicial Council (for federal judges)
or a similar organization in the provinces. It is really hard for federal judges to be removed. (You
need a vote from the House and the Senate.)
o


s. 100
CA1867
The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts
(except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases
where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the
Parliament of Canada.
ALI/UNIDROIT, Principle 1
1. Independence, Impartiality, and Qualifications of the Court and Its Judges
1.1 The court and the judges should have judicial independence to decide the dispute according to the facts and
the law, including freedom from improper internal and external influence.
1.2 Judges should have reasonable tenure in office. Non-professional members of the court should be designated
by a procedure assuring their independence from the parties, the dispute, and other persons interested in the
resolution.
1.3 The court should be impartial. A judge or other person having decisional authority must not participate if there is
reasonable ground to doubt such person’s impartiality. There should be a fair and effective procedure for
addressing contentions of judicial bias.
1.4 Neither the court nor the judge should accept communications about the case from a party in the absence of other
parties, except for communications concerning proceedings without notice and for routine procedural
administration. When communication between the court and a party occurs in the absence of another party, that
party should be promptly advised of the content of the communication.
The court should have substantial legal knowledge and experience.
IBA Minimal Standards of Judicial Independence

(1) Judges should enjoy personal and substantive independence [institutional independence] including secure
tenure. They should not be subject to executive control or anything else but the law and his/her conscience.

(2) Judiciary should be enjoy autonomy and collective independence from exec

(3) Judicial appointments must not be inconsistent with judicial independence

(4) The Executive should not discipline or remove judges; this power should be vested in a tribunal.

(5) The Executive shall not control judicial functions

(6) Rules of procedure must be made with legal professionals

(10) The State must adequately finance the courts for the due admin of justice [admin independence]

(14) Judges salaries and pensions must be adequate

(16) Ministers of government cannot exercise any form of pressure on judges

(18) Exec must refrain from meddling with judgements. Cannot close down the courts.

(19) Leg shall not pass legislation which retroactively reverses specific court decisions

(22) Judicial appointment should be for life

(23) Judges should not be appointed for probationary periods

(24) Number of members of the highest court should be set

(26) Judges should be appointed on the grounds of merit

(29) Grounds for removing judges should be fixed by law

(35) Judges cannot serve in executive while sitting on bench

(37) Judges cannot hold positions in political parties

(38) Judges cannot act as lawyers

(39) Judges cannot enter into business

(40) Judges must preserve the dignity of their office

(43) Judges enjoy immunity

(44) Judges should not do anything where there is a reasonable suspicion of bias or potential bias

(45) Judges shall avoid any course of conduct, which might give rise to an appearance of partiality.
Posner "How Judges Think- Altering the Environment: Tenure and Salary Issues"
Many federal judges in the U.S. are being pulled from their positions. Resignations may be on the rise (possibly
indicating that fewer able people find the job attractive). What would happen if we (1) imposed term limits on judges
32
and (2) increased their salaries substantially?
Term Limits
 Lifetime appointments guarantee independence but encourage shirking. It is fundamentally undemocratic to
have lifetime judges. – Solution? Impose non-renewable term limits, e.g. 10 years.
 Advantages: term limits make the system more democratic.
 Problems: Judges will “stop trying” at the end of their term and start looking at another job. Terms would
eliminate the 'senior status' carrot which currently exists for judges.
Salaries
 Judges' salaries are too low. Judges could be influenced by potential high-paying jobs at companies that they
are ruling on, affecting impartiality. Arbitration may be attracting more good judges.
 We should greatly increase judges’ salaries.
 Advantages: Higher salaries might attract more judges.
 Problems: There is no evidence of any real shortage of qualified judges, and resignations are not common.
There are powerful benefits to being a judge. Judge market is monopsonistic (i.e. there is no competition on
the buying side of the market) – though this is changing with arbitration. The utility of salary declines with
age. Salaries would attract many commercial lawyers, but they might attract 'leisure-loving practitioners'.
Term limits seem arbitrary, and it's too early to say whether judges' salaries are a big problem right now.
However, judges' salaries should not be allowed to erode with respect to the cost of living, or the issues raised may
become a problem in the future.
Independence and the Appointment of Judges
There are three ways that you can become a judge:
1. Appointed by the government (Canada)

You must be an upstanding member of the bar for at least 10 years and named from active practice.

Now, you can “put your name in” – it used to be that the court would just cold call you.

Each province has a judicial advisory committee with representatives from the provincial and federal
government, law societies, the CBA, the judiciary and the general public. In 2006, Harper added 2
representatives from the law enforcement community.

Candidates are evaluated based on their personal information forms and references. Following the review,
the committee recommends a number of candidates. The recommended pile sits there until there is a
space available. Just because you are recommended doesn’t mean you will be a judge.

This process does not apply to existing judges – they are elevated simply on a recommendation.

All newly appointed judges are expected to go through two weeks of training in trial procedure, evidence,
family law, criminal law, etc.

Harper appointed MP ad hoc committees that politely interviewed potential judges in order to create some
transparency. The PM has the final say. Rothstein J. is the only judge to undergo this interview.
2. Career judges (France)

They go to the Ecole de la Magistrature to become a judge

They think it’s crazy that we appoint people to the bench without teaching them to be a judge

Judges in France are 25 years old! Talk about “barely legal.” In Canada, the average age is 50.
3. Judicial elections (US)

Only district judges in certain states are elected.

Judges have to pay for their re-election campaigns. This money comes primarily from lawyers. Does this
compromise their neutrality? Should the judge recuse herself if one of the lawyers before is a big donor to
her campaign? For all donors?

Election turnouts are really low, so what’s the point of having elections?

Does this bring too much scrutiny on the substance of your judgements?
J. Lanzinger, “A Personal Reflection on Judicial Elections,” 1998
Judith Lanzinger is an American trial judge in Ohio running for election to the CA for the 6th time in 13 years.
Electing judges:

Not every U.S. judge is elected. It depends on state constitutions and statutes.

Federal judges have lifetime appointments under the US Constitution.

34/50 states have term appointments based on merit. Names are given by a non-partisan commission to an
appointing authority (usually the governor). After their 1st term, the judge can be evaluated for retention in an
uncontested election.

In Ohio, judges are elected. Usually, a party endorses a single candidate in the primary. Judicial races are treated
as non-partisan because the party is not on the ballot, but it’s advertised. Theoretically, independents can run.

Ohio tried to pass merit selection, but people protested, saying “don’t let them take away your right to vote.”
Problems with judicial elections:

Campaign Financing: The USSC adopted rules limiting spending in appellate races to $125,000 and in a
contested primary, to $62,500. Money typically comes from lawyers (who obviously have a stake in electing
33



judges) who can make individual contributions of up to $500 and association contributions of up to $2,500. Judges
can’t ask for money. Someone is paying for the judge to seek a job in public service.
Judicial independence: it’s hard to hear cases from former supporters without seeming biased. Elected judges
always know their unpopular decisions may be revived and emphasized when they seek office.
Electorate: Not all voters make rational choices. Judges can’t always discuss substantive matters in campaigns
because of ethical rules relating to improper judicial speech. It’s hard to inform voters, so voters vote for people
with best commercials. Also, many people don’t vote for judges.
Personal toll: how can a sitting trial judge take the time to campaign?
It doesn’t all suck: “If approached with the right spirit and an open mind, campaign can be invigorating, gets you
acquainted with constituents.” It is a humbling experience – you see that people see you as their rep. of justice.
Facts
Issues
Ratio
Reasoning
Hugh M. Caperton et al v. AT Massey Coal Company
A dispute between Massey Coal and Caperton resulted in a judgement at trial in favour of Caperton. In
the interval between the trial and the appeal of the judgement, judicial elections took place for the region
(West Virginia). Benjamin ran to be a judge. Don Blankenship, Chairman of Massey Coal, supported him
financially. Blankenship paid the maximum $1000 contribution to Benjamin’s campaign and also gave ~$3
million to an independent organization which was promoting Benjamin. Benjamin was elected as a judge
and sat on the Massey Coal appeal, and the bench reversed the trial judgment. Caperton sought
rehearing and moved for the disqualification of three of the five judges who heard the appeal (including
Benjamin). Benjamin J refused the request for recusal. The court then found (3-2) for Massey Coal.
Was Blankenship’s campaign support such Benjamin J should recuse himself (per Due Process Clause)?
Yes  A significant and disproportionate influence coupled with a close temporal relationship between an
election and a pending case such that a possible temptation is offered to the average judge is sufficient to
require recusal.

Circumstances requiring recusal under the due process clause include: if the judge has a financial
interest in the outcome of the case (Tumey, Ward v. Monroeville, Lavoie) or if the judge has heard
the person before and charged them with contempt of court.

The inquiry in these cases is an objective one; “the Court asks not whether the judge is actually,
subjectively biased, but whether the average judge in his position is “likely” to be neutral, or whether
there is an unconstitutional “potential for bias” (156). I.e., “under a realistic appraisal of psychological
tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that
the practice must be forbidden if the guarantee of due process is to be adequately implemented.”

Not every campaign contribution creates a probability of bias – some interests are remote. The
inquiry should focus on the contribution’s relative size in comparison to the total amount of money
contributed to the campaign, the total amount spent in the election, and the apparent effect such
contribution had on the outcome of the election” (157). Blankenship’s campaign efforts had a
significant and disproportionate influence in placing Justice Benjamin on the case (157).

This will not create a slippery slope of inquires into judges since the facts here were so extreme (158)
Dissent (Roberts J)

This new rule based on probability of bias is problematic. The rule is open ended, without
limits or any indication of how it should be applied. Subject to the two well-defined exceptions
(financial interest and contempt), questions of judicial recusal are regulated by common law,
statute and professional standards. There is no need for this new the test. (160)

There is a presumption that judges are honest and act with integrity (160).

This judge had no control over how the money was spent – he in fact only received the $1000
maximum amount.

“Opening the door to recusal claims under the Due Process Clause, for an amorphous “probability
of bias” will itself bring our judicial system into undeserved disrepute, and diminish the
confidence of the American people in the fairness and integrity of their courts.” (164).
Facts
Issues
Ratio
Reasoning
Reference re Remuneration of Provincial Court Judges (PEI)
Question of salaries of provincial court judges arose in three different ways – from the constitutional
challenge of the scheme by an accused person (Alberta), from civil action by the Provincial Judges
Association (Manitoba & BC) and from a request for a reference from the provincial cabinet (PEI).
1) Whether and how does the guarantee of judicial independence in s.11(d) of the Charter restrict the
manner by and the extent to which provincial governments and legislatures can reduce the salaries of
provincial court judges?
2) Is the “constitutional home” of judicial independence in the express provisions of the Constitution
Acts, or does it lie elsewhere?
Certain guarantees of independence granted to superior courts are also enjoyed by provincial courts.
Institutional financial security is one of those guarantees.
Key cases:

Valente: established the meaning of s.11(d)’s guarantee of judicial independence and
impartiality: for individual judges to be independent, their salaries must be secured by law, and
34



not be subject to arbitrary interference by the executive (the question here relates to the
collective/institutional dimension of financial security for judges)
Beauregard: salary reductions which are non-discriminatory (e.g. mandatory pension
contributions) are not unconstitutional.
o
What kinds of salary reductions are consistent with judicial independence?
o
Do the principles which govern salary reductions apply to salary increases or freezes?
o
Does Beauregard apply only to superior court judges?
o
Does the constitution impose some substantive limits on the extent of permissible salary
reductions for the judiciary?
Judicial independence is an unwritten constitutional principle. It traces back to the Act of
Settlement 1701 and the preamble of the Constitution (see para. 109)
o
The gaps in the scope of protection offered by sections 96-100 are somewhat offset by
s.11(d) but not completely since s.11(d) only comes into play for bodies which exercise
jurisdiction over offences (thus meaning that courts with only civil jurisdiction would seem
not to have the guarantee of independence) (168).
o
The Preamble to the constitution is particularly important in gap-filling (170).
o
Unwritten principles of the constitution have been inferred by the Courts before (e.g.
paramountcy, rule of law, affirmation of Parliamentary democracy and related political
freedoms (like freedom of speech) (171-172) (see para. 104)
o
“Section 11(d), far from indicating that judicial independence is constitutionally enshrined
for provincial courts only when those courts exercise jurisdiction over offences, is proof of
the existence of a general principle of judicial independence that applies to all courts no
matter what kind of case they hear” (173).
Role of s.11(d)
o
Valente set out the difference between impartiality and independence:
o
Three core characteristics of judicial independence (set out in Valente in relation
to provincial court judges):

Security of tenure: for provincial court judges must be such that they can only
be removed for a cause related to their capacity to perform judicial functions and
after a full judicial inquiry

Financial security: salary to be established by law and no way Executive could
interfere with salary of an individual judge

Administrative independence: control by courts over administrative decisions
that bear directly on the exercise of the judicial function
o
Two dimensions of judicial independence:

Individual independence

Collective/institutional independence is grounded in the need for a
neutral arbiter for federalism and Charter disputes. (176)
o
It is possible for each core characteristic to have an individual and collective facet.
o
Institutional independence of provincial courts is grounded in the increasing role that
provincial courts play in enforcing the Charter and using the supremacy clause of the
Constitution. Judicial independence flows from the separation of powers (177).
o
Collective or institutional financial security entails three key principles:

Salaries of provincial court judges can be reduced, increased or frozen
but any changes require a special commission (177). These commissions
must be independent, objective and effective (see 183-185 for guidelines.)

It is impermissible for the judiciary to engage collectively or as
individuals in negotiations with the executive over salaries (see 186).

Any decrease in salaries cannot go beyond “a basic minimum level of
remuneration which is required for the office of judge” (N.B. they don’t say
how much.)
o
The relationship between the judiciary and the executive should be depoliticized (178).
The setting of judicial remuneration should remain consistent (179).
o
How much does s.100 jurisprudence (guaranteeing the independence of superior court
judges) apply to the interpretation of s.11(d) (guaranteeing independence of wide range
of tribunals and courts including provincial courts)? In particular circumstances,
provincial court judges may be afforded the same level of protection as s.100
and other provisions give to superior court judges (182). The requirements laid
down in Beauregard are equally applicable to the guarantee of financial security
provided by s.11(d) to provincial court judges (182).
C. IMPARTIALITY
What is Impartiality?

“Judges must be and should appear to be impartial with respect to their decisions and decision making”
(Ethical Principle 6, CJC) while independence is that which ensures judicial impartiality.
35
Neutrality vs. Impartiality

Judges are shaped by their various experiences and perspectives. We can’t expect them to be “neutral
ciphers.” “True impartiality does not require that the judge have no sympathies or opinions; it requires that
the judge nevertheless be free to entertain and act upon different points of view with an open mind.”
Wewaykum establishes the test: reasonable apprehension of bias by reasonable, fair minded and informed
members of the public.

The reasonable person is an informed reasonable person. The apprehension of bias refers to the real
likelihood of bias.

234 CCP – A judge may be recused in 9 specific instances as well as if there is a reasonable cause to
believe that the judge might not be impartial (which is a bit of a catch-all category).

When a party is concerned about the impartiality of a judge they must raise this concern ASAP.

During a case  Recusal: When a judge thinks that there might be a reasonable apprehension of a bias,
they can recuse themselves. Either the judge can voluntarily recuse himself or the parties can ask him
to recuse himself. Either way it is pretty much up to the discretion of the judges whether or not they
decide to recuse themselves (see Stikeman Elliot example below).

After a case  In cases like Wewaykum and Pinochet, the concerns about impartiality came up only after the
cases has been decided. In these cases, the parties can only ask for the decision to be vacated.
CCP, Art. 234
234. A judge may be recused in particular:

If the judge is the spouse of or related or allied within the degree of cousin-german inclusively to one of the
parties;

If the judge is himself or herself a party to an action involving a question similar to the one in dispute;

If the judge has given advice upon the matter in dispute, or has previously taken cognizance of it as an arbitrator,
if the judge has acted as attorney for any of the parties, or if the judge has made known his or her opinion extrajudicially;

If the judge is directly interested in an action pending before a court in which any of the parties will be called to sit
as judge;

If there is mortal enmity between him or her and any of the parties, or if the judge has made threats against any
of the parties, since the institution of the action or within six months previous to the proposed recusation;

If the judge is the legal representative, the mandatary or the administrator of the property of a party to the suit,
or if the judge is, in relation to one of the parties, a successor or a donee;

If the judge is a member of an association, partnership or legal person, or is manager or patron of some order or
community which is a party to the suit;

If the judge has any interest in favouring any of the parties;

If the judge is the spouse of or is related or allied to the attorney or counsel or to the partner of any of them,
either in the direct line, or in the collateral line in the second degree;

if there is reasonable cause to fear that the judge will not be impartial.
N.B. This test is identical to the test in Wewaykum.
Facts
Issues
Reasoning
Class Notes
Facts
Wewaykum Indian Band. v. Canada, SCC, 2003
Binnie, as deputy justice minister with responsibility for aboriginal matters 15 years earlier, helped
prepare broad litigation strategy in face of land claim from a BC Indian band. The same band’s
claim made it to SCC when Binnie was on bench, where a unanimous court dismissed it. Bands
complained following judgment.
Should the decision be vacated because of a reasonable apprehension of bias on Binnie’s part?
The standard is actual or reasonable apprehension of bias.

If “reasonable, right-minded and properly informed persons would think that Binnie J. was
consciously or unconsciously influence in an inappropriate manned by his participation in this
case over 15 years” ago, then he can be disqualified (325)

The subjective bias of a judge can’t be proved.

It is important that justice not only be done, but that it appears to be done.
Test: Is there a reasonable apprehension of bias by reasonable, fair minded and informed
members of the public? (N.B. “informed of the circumstances” includes being informed judges
are sworn to be impartial.)

Factual considerations include the amount of time elapsed and Binnie’s sworn statement that
he did not recall his work years earlier, and that he had limited involvement at time.

Judges are presumed to be impartial; the onus is on the party claiming otherwise.
(1) Reasonable apprehension that bias may exist is sufficient. Proof of actual bias is irrelevant.
(2) Unconscious bias can exist even where the judge acted in good faith.
R.D.S. v. The Queen, SCC, 1997
While delivering her oral reasons for acquitting the accused, the trial Judge, who was also black,
36
Issues
Dispositions
Ratio
Reasoning
remarked that police officers had been known to mislead the court in the past, that they had been
known to overreact particularly with non-white groups, and that that would indicate a questionable
state of mind. She also stated that her comments were not tied to the police officer testifying
before the court.
Does the trial judge’s remark indicate a reasonable apprehension of bias?
No.
A high standard must be met before a finding of reasonable apprehension of bias can be
made. The test is whether or not a reasonable person, aware of all the circumstances, would
conclude that they gave rise to a reasonable apprehension of bias (Weweykum)

Fairness and impartiality must be subjectively present and objectively demonstrated to
the informed and reasonable observer. A trial will be unfair if the words or actions of the
presiding judge give rise to a reasonable apprehension of bias.

If a judge exhibits bias or the appearance of bias, they have exceeded their jurisdiction. This
excess of jurisdiction can be remedied by an application to the presiding judge for
disqualification if the proceedings are still underway, or by appellate review of the decision.

A reasonable apprehension of bias when it arises colours the entire trial proceedings
and cannot be cured by the correctness of the subsequent decision.

When making findings of credibility a judge should avoid any comments that suggest that the
credibility determination is based on generalizations or stereotypes rather than on the specific
demonstrations of truthfulness or untrustworthiness by particular witness during the trial. It is
only after a witness has been tested and assessed that findings of credibility can be made.
Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.:

The impugned passages should be construed in light of the trial proceedings and the judgment.

The judge approached the case with an open mind, used her experience and knowledge of the
community to achieve an understanding of the reality of the case, and applied the fundamental
principle of proof beyond a reasonable doubt. The impugned comments reflected an
appropriate recognition of the context within which this case arose.
Per Cory and Iacobucci JJ.:

The Judge conducted an acceptable review of all the evidence before making the impugned
comments. The comments were worrisome and came very close to the line, but they were not
made in isolation and must all be read in the context of the whole proceeding, with an
awareness of all the circumstances that a reasonable observer would be deemed to know.

A reasonable, informed person, aware of all the circumstances, would not conclude that they
gave rise to a reasonable apprehension of bias or that they tainted her earlier findings
Class Notes
Facts
Issues
Dispositions
Reasoning
Per Lamer C.J. and Sopinka and Major JJ. (dissenting):

A fair trial is based on the law and its outcome is determined by the evidence, free of bias, real
or apprehended. No evidence was introduced showing that this police officer was racist and
that racism motivated his actions or that he lied.

A judge's life experience is not a substitute for evidence. No evidence supported the
conclusions that the Judge reached. Her comments stereotyped the police officer.

Given the concern for the fairness and the appearance of fairness of the trial, the absence of
evidence to support the judgment is an irreparable defect.
This case is a leading decision on the rules for determining reasonable apprehension of bias and
establishing limits to the application of social context in judging.
Wightman c. Widdrington, QCCA, 2007
Shareholders sue an accounting firm for professional negligence in preparing financial statements.
After 9 years of trial, the sitting judge (Carrière) has to step down for health reasons. They
finally find another judge (St-Pierre) but her kids work for Stikeman. Stikeman is not directly
involved in the case—but a lawyer for Stikeman worked as a consultant for one of the parties.
Should St-Pierre, J. be recused because of a conflict of interest?
No  In the interest of justice and avoiding further delays, the trial should proceed
The judge doesn’t meet conditions in 234 CCP to demand recusal for conflict of interest.

The judgment focuses on practical reasons why the judge should not be recused (the time
and money already spent, difficulty of replacing her, the burden on the justice system, etc.)

Jukier doesn’t think that such practical claims should have a role to play in decisions
about conflicts of interest. Think about the kinds of factors that should be relevant to the
determination of a conflict of interest, and the actual vs. potential conflict of interest test.
Application of the Test and Other Situations of Unimpartiality
What if judge has an interest in the subject matter of the case?
37





British judge (Hoffman) who sided with majority was held to not be impartial, because he was the director and
chair of a charity allied with Amnesty International and AI was an intervener in the case against Pinochet. The
case was about the extradition of Pinochet. The HoL later said that his interest disqualified him even if he
wasn’t biased.
Justice McMurty was C.J. of the OCA when they decided to permit gay marriage. After the decision, a
complaint was launched regarding McMurty’s impartiality, because he had a lesbian daughter in an LTR.
A Palestinian claimant was denied refugee status in Scotland by Justice Cosgrove. The Claimant googled
Cosgrove J. and found that she was Jewish and a member of the International Association of Jewish Lawyers
and Jurists which had published a newsletter article that may be construed as taking a different political
position than that of the claimant. The claimant challenged her impartiality but failed.
The Judge in Fabrikant’s case recused himself on basis of lack of impartiality (because he hated him so much).
Is recusal here a cop-out?
We need to think less on a case-by-case basis and more about an institutional framework.
Statements made on the bench or outside the courtroom: RDS v. The Queen

Ruffo J. was a judge at youth court and a champion for the rights of the child. She was frequently on TV and
interviewed where she advocated children’s rights and criticized rules and procedures in the child welfare
scheme. She sent two kids to sleep in the Minister’s office to protest lack of foster care.

After years of complaints to the Conseil de la magistrature, (not the CJC because she is a provincially
appointed judge, not under s.96) she was recommended for dismissal (although she resigned beforehand.)

This is an extreme case where the judge was held accountable for being generally biased – complaints
alleged that she was acting beyond her judicial duties, and breaching the judicial code of ethics.

The Minister of Justice asked for a judicial inquiry and for recommendations. It was recommended that she
should be removed. She appealed to the SCC, but the appeal was not heard.

Jukier says that she was institutionally biased and therefore could not hear cases with an open mind.

The Quebec Code of Judicial Ethics states that a judge should avoid any conflict of interest. S.5 requires
general impartiality. Public activism does not give the appearance of being open-minded. S.8 requires that
when in public, the judge should act in a reserved, serene manner.

The impartiality of courts is more fundamental than her personal right of freedom of expression.
Additional Factors/Difficulties

Who decides whether a judge is not impartial?
o
The judge herself - but who watches the watchmen? (In Canada, it is the judges through the CJC.)
o
The government cannot because this would threaten independence.
o
The people cannot, really, except by filing complaints and appeals.

What are the remedies for a litigant?
o
Arsenault-Cameron v PEI, SCC, 1999: Unlike Binnie in Wewaykum, Bastarache did not recuse himself
during an argument as to his own alleged apprehension of bias.
o
SOS: Save Our St. Clair v. Toronto, Ontario Divisional Court, 2005; Matlow J. was accused of being
unimpartial because he had represented the “Friends of the Village” in lobbying the city against
development. Both parties wanted recusal, but he denied it. The two other justices disagreed, so they
want on strike, which forced the C.J. to reconstitute the panel.

What if the decision is already rendered? There are two reasons not to request recusal before the decision:
o
You don’t actually have a reason to suspect bias (e.g. Weywakum)
o
If you win, you leave it be, and if you lose, there is a basis to vacate the judgment!
38
D. JUDICIAL ETHICS AND JUDICIAL ACCOUNTABILITY
Accountability
Who holds the judge accountable? And what is the standard?

Federal: Canadian Judicial Council (made up of CJs, publishes research, offers training for federal judges)

Removal of judge (s.99 of the Constitution) requires both houses of Parliament to approve the removal. This has
never happened in Canada.

Complaint Procedure: About 200 CJC complaints are filed per year, most by people who don’t like the decision.

Provincial: QC has a provincial oversight committee: The magistrature recommends removal to the Minister of
Justice who then recommends an inquiry at the QCCA, which is appealable to SCC.
o
N.B. Here, we have a federal court ruling on provincial judges!
Dual system of accountability: Judges are accountable to each other (CJC, federal court) and Parliament.
Historically, this system comes from Act of Settlement of 1771; serve at the pleasure of the King
McLachlin CJ, The Source of Judicial Accountability
Judges originally served at the pleasure of the King and monarchs routinely sacked judges. By the 18th century, the
struggle between the King and Parliament was tense. Parliament saw the King’s appointment of judges as intolerable:
how could judges check the King’s abuse of powers if the King could shut the judges down? So, Parliament abolished
royal appointments of judges in the Act of Settlement, 1701. The Act guaranteed tenure for judges who could be
removed only “upon the address of both Houses of Parliament”. Tenure was guaranteed quamdiu se bene gesserint.
The translation from the Latin is “as long as he shall behave himself”.
M. Cappelletti, “Who Watches the Watchmen?”

Judicial responsibility means both judicial power and accountability; legal authority and legal duty

Human problem of judicial responsibility is as old and universal as legal civilization
Modern society has seen a huge growth in judicial power

This had led to an understand of the judge as more than just a passive observer (especially in civil law)

Judge now takes role of “controller” in order to expedite proceedings and to ensure an effective and not merely
formal “equality of arms” of the parties. The judge has a much greater substantive role.

The modern welfare state, the expansion of the legislative and administrative branches and the sheer volume and
vagueness of modern statutes all means that the judiciary must exercise more control.

The increase of social rights placing a positive obligation on the state requires more judicial oversight.

“Massification” has led to a change in the traditional scheme of two-party court litigation.
Obstacles to Judicial Accountability:

State sovereignty is incompatible with state responsibility to a certain extent. Once a case has been ruled upon
at the highest court, it becomes law or “truth.” This is dangerous if it is wrong in fact and/or in law.

Tensions exist between judicial accountability and judicial immunity

Judicial immunity is often justified by the need for judicial independence, but it is not always necessary. Still, we
do need to give judges some independence from pressures (from the public, particularly the powerful.)
Forms of Judicial Accountability

(1) Political accountability
o
Judges should be accountable to political bodies. (E.g. in England, judges can be impeached by the
HoL.)
o
Political liability is different from legal liability.
o
In many CVL countries the executive branch retains significant powers over the development of the
judiciary – including constitutional accountability.

(2) Societal or public accountability
o
Judges should be accountable to the public, e.g. subject to recall procedures and criticism in the media.
o
This idea is linked to the open court principle (i.e. the publication of judicial proceedings) which is
often missing in the civil law tradition – especially when it comes to dissenting opinions.

(3) Legal (vicarious) accountability
o
liability for legal violations through vicarious responsibility of the state
o
Responsibility of the state to provide indemnification or reparation to the victim of judicial error
o
Allows the victim to have some form of recourse – if not to the state directly then at least to the state
o
This acts as a “shield” of judicial independence
o
Vicarious liability can also been concurrent with personal liability rather than exclusive of.

(4) Legal (personal) accountability
o
Judges could be made liable for penal, civil and disciplinary infractions. E.g. In Italy judges are liable for
crimes of deceit, fraud or extortion. (States that allow this also enact considerable limitations.)
o
In CML countries it is recognized that a judge is responsible for anything they do “off-the-bench”.
Facts
Therrien (Re), SCC, 2001
In 1970, Therrien was imprisoned for a year for unlawfully assisting four members of the FLQ.
Therrrien then studied and practised law. In 1987 he was granted a pardon. Between 1991 and 1993
he applied to be a judge 5 times. The first 4 times he revealed his previous conviction and pardon and
39
Re: Therrien
(continued)
Issues
Dispositions
Ratio
Reasoning
Class Notes






was rejected. The last time he did not disclose his criminal record and he was picked to be a judge.
Later on, people discovered that he had lied and the Conseil de la magistrature recommended that
the Minister of Justice initiate the process to remove him from the bench by making a request to the
Court of Appeal in accordance with s. 95 of the Courts of Justice Act.
Is removal outside the jurisdiction of the Court of Appeal, and contrary to the ideal of judicial
independence from the executive?
No. Lying separatists don’t get to be judges.
If the public does not have confidence in the judge, we cannot allow them to sit.
Jurisdiction and Independence Questions:

QC is the only province that requires the CA to be involved in the removal process.

The Court of Appeal must put together a report to the Minister of Justice and weigh
the issues of judicial ethics and independence. Then the CA makes a
recommendation to the Minister. The judge is judged by (judgey) judges.

Impartiality and independence are key elements in the functions of a judge and are an
integral part of the constitutional structure of parliamentary democracy.

Is it contrary to judicial independence to have the Minister remove a judge? No. Provincial
court judges do not fall under s.96, so they do not have the protection of ss. 96-100 with
regards to security of tenure and removal processes, etc.

Therrien asks whether the government can be bound by the report of the judiciary inquiry –
but this doesn’t matter because they both thought he should be sacked.
The Role of the Judge

Our society assigns important powers and responsibilities to the members of the judiciary,
including the role of arbiter, and the responsibility for preserving the balance of constitutional
powers between the two levels of government. Public confidence in and respect for the
judiciary are essential to an effective judicial system and to the rule of law.

Judges should strive to conduct themselves in a way that will sustain and contribute to public
respect and confidence in their integrity, impartiality and good judgement.

Judges must be and must give the appearance of being an example of impartiality,
independence and integrity. “We expect our judges to be almost superhuman in
wisdom, in propriety, in decorum, and in humanity.”

There is no question that a certain loss of freedom accompanies an appointment to the
judiciary. Judges must conform to the demands of their exceptional status.

Thierry was in a catch-22. He could lie or he could never become a judge.

He was not dismissed because of his conviction; he was dismissed because intentionally lied,
which was “manifestly destructive of public confidence in him.”

S. 18(2) of the Quebec Charter does not apply to judges!
Complaints Procedure
Both federal and provincial judges have governing bodies where complaints can be made. Federally, complaints go
to the Canadian Judicial Council.
The Minister or AG cannot suggest removal unless the CJC commences an inquiry. Removal is an extreme sanction.
Complaints must be in writing and they must give specifics. They cannot be anonymous.
About 200 complaints are made per year, 99% of which come from disgruntled litigants. About half the complaints
are dismissed immediately because they fall into the category of appeals, not complaints.
People complain about conflict of interest, delay in judgment, perception of bias, offensive remarks, rudeness.
The CJC code of ethics is advisory and supposed to assist judges, not to act a code or list of prohibited procedures.
CJC – Complaints Procedure (for Federally-Appointed Judges)
The CJC has authority over federally appointed judges. Individual provincial and territorial judicial councils have
responsibility for provincially appointed judges in provincial courts. These procedures establish rules about opening
complaint files, requesting comments from the judge in question, and other administrative issues.



First: The complaint is reviewed by members of the Committee (who are judges.) There may be some interaction
with the judge. 99% of complaints are resolved at this stage. (The complaint is unfounded or the Judge agrees to
send a letter of apology.)
Second: The complaint goes to panel, where five members review the judge’s conduct. More disciplinary measures
are available at this stage, and the panel will consider whether the conduct is serious enough to warrant a
recommendation for removal.
Third: The complaint goes to an inquiry committee. Complaints can also get to this stage via a directive from the
AG to look into the conduct of a judge. (This happened to Cosgrove J. who was the 6th judge in Canada ever to be
recommended for removal.)
o
Cosgrove J., in a murder case, found 150 Charter violations on the part of the Crown and investigators and
stayed the charges. He was removed due to extreme incompetence, bias, and misuse of powers. Cosgrove
apologized after losing his appeal, but the CJC nevertheless recommended that Parliament remove him.
Cosgrove resigned before that could happen.
40
PART II: Basic Principles of (Pre-Trial) Civil Procedure

Quebec has generalized case management (art. 151.1 et seq) and a fairly unified procedure for all cases. Class
actions go through special case management, where the same judge oversees the case from beginning to end.
ALI/Unidroit: Principle 9 & Principle 14
9. Structure of the Proceedings
9.1 A proceeding ordinarily should consist of three phases: the pleading phase, the interim phase, and the final phase.
9.2 In the pleading phase the parties must present their claims, defences, and other contentions in writing, and identify
their principal evidence.
9.3 In the interim phase the court should if necessary: 9.3.1 Hold conferences to organize the proceeding; 9.3.2
Establish the schedule outlining the progress of the proceeding; 9.3.3 Address the matters appropriate for early
attention, such as questions of jurisdiction, provisional measures, and statute of limitations (prescription); 9.3.4
Address availability, admission, disclosure, and exchange of evidence; 9.3.5 Identify potentially dispositive issues
for early determination of all or part of the dispute; and 9.3.6 Order the taking of evidence.
9.4 In the final phase evidence not already received by the court according to Principle 9.3.6 ordinarily should be
presented in a concentrated final hearing at which the parties should also make their concluding arguments.
Comments on S.9

The “structure” of proceedings should be applied flexibly, depending on the situation. There should be a schedule.

Although civilians employ a sequence of court hearings while CML organizes proceedings around a final trial, both
systems now use elements such as preliminary hearings, etc.

Particularly in international litigation, questions of jurisdiction should be addressed promptly.
14. Court Responsibility for Direction of the Proceeding
14.1 Commencing as early as practicable, the court should actively manage the proceeding, exercising discretion to
achieve disposition of the dispute fairly, efficiently, and with reasonable speed. Consideration should be given to the
transnational character of the dispute.
14.2 To the extent reasonably practicable, the court should manage the proceeding in consultation with the parties.
14.3 The court should determine the order in which issues are to be resolved, and fix a timetable for all stages of the
proceeding, including dates and deadlines. The court may revise such directions.
Comments:

Many court systems have standing orders governing case management

Case mangement is fairer when done in consultation with the parties
OVERVIEW OF THE PRE-TRIAL PHASE IN QUEBEC
The judge is a case manager. Rules are designed to facilitate the flow of information pre-trail (i.e. exhibits, lists of
witnesses, etc.) Early settlement is encouraged. The rules aim to for simplification of the process and speedier justice in
particular through the 180 day rule (1 year in family matters) and the sanction for lawyers’ passivity (Arguin v. Nault).
Notes on the 180 day rule: (110.1 and 274.3 CCP)

274.3: The case dies if the 180 day period elapses without inscription

N.B. You can ask for an extension within the first month of the 180 days.
The Pre-Trial Phase in Quebec
1.
2.
3.
4.
5.
6.
Motion to institute proceedings – 111 & 119 CCP
a. 111: A motion to institute proceedings is a written, concise statement of facts along with the
conclusions sought. It should include the style of cause and an affidavit attesting to veracity.
i. N.B. This is fact pleading, not notice pleading (as they have in the U.S.)
b. 119: The motion must include a notice to the defendant to appear within ten days. If the defendant
fails to file an appearance, the plaintiff may obtain a default judgment.
Service of the initial motion starts the 10-day period for appearance and the 180-day period for inscription.
a. We still have personal service in QC.
b. N.B. If the motion is filed before the expiry of the prescription period, it may be served after the expiry
of the prescription period provided it is within 60 days of said expiry (2892 CCQ)
Appearance – 149 CCP
a. Appearance is a written statement that you will be contesting the action, made within 10 days of the
service of the motion to institute proceedings.
Negotiation of an agreement as to the conduct of proceedings – i.e. the mandatory timetable – 151.1 CCP
a. The timetable requirement might psychologically influence the parties to negotiate a settlement.
b. The Court will establish a timetable if the parties can’t agree.
Presentation of the action (i.e. presentation of the timetable to the judge) - 151.4 & 151.6 CCP
a. The timetable is presented to the judge within the 180-day period. She can approve it or alter it.
b. 151.6 empowers the judge to be a case manager.
Preliminary Exceptions – 151.5 CCP
a. All preliminary exceptions (e.g., jurisdictional issues, issues of prescription) must be raised at this time.
41
7.
Examination on Discovery (defense) – 396.1 et seq. & 397 CCP
a. 397: The defendant may discover the plaintiff before filing a defence in order to mount a proper defence.
b. 396.1: There is no discovery for claims less than $25,000.
8. Defence – art. 172 CCP
a. Written
b. Defence takes paragraphs of motion to institute proceedings and responds to them. Also can cross-claim.
9. Examination on Discovery (plaintiff) – 398 CCP: This step is optional.
10. Answer – 182 CCP: This step is optional. (The plaintiff might want to respond to issues raised in the defence.)
11. Inscription for proof and hearing –274, 274.1, & 274.2 CCP
a. Inscription informs the court that the parties are ready for a trial date to be scheduled.
12. Optional Pre-Trial Conference – 279 CCP
a. The judge may discuss with lawyers how to simplify the case (in the judge’s chambers)
b. This is a how the Court knows how many days to set aside on the rolls.
Things that can happen at any time
o
Settlement Conference – 151.15 CCP
o
Safeguard Measures – 752(2) CCP
o
Parties may take provisional measures or interlocutory injunctions to safeguard their rights (e.g.
when a party fears that the other party might destroy evidence, or when the party cannot wait until the
trial to have their rights asserted.)
o
Extensions
o
Amendments to proceeding – 199 CCP
o
Declare an action or pleading improper and impose a sanction – 54.1 CCP
110.1 Actions and applications that are to be contested orally must be heard or scheduled for proof and hearing and, in
the latter case, referred by order to the clerk for scheduling of the hearing, and those that are to be contested in
writing inscribed for proof and hearing, within a peremptory time limit of 180 days after service of the motion. In
family matters, however, the peremptory time limit is one year. The court may extend the peremptory time
limits, if warranted by the complexity of the matter or special circumstances, upon a request submitted at
the time of presentation of the motion to institute proceedings. If, on the day the motion to institute proceedings is
presented, the parties are unable to assess the time needed to allow the scheduling of the hearing or the inscription
of the case, they may request an extension on the same grounds at any time before the expiry of the peremptory
time limit. The court may also relieve a party from the consequences of failure to act within the time limit
upon proof that it was in fact impossible for the party to act within the time limit. The decision must in all
cases contain reasons.
Disclosure (in Quebec)
There are three stages in the pre-trial process when parties must disclose everything. (No surprises.)

119 & 331.2 CCP – Disclosure/Announcement: The plaintiff must announce or disclose the exhibits he intends to
use. N.B. s/he must only disclose their existence; s/he need not produce them at this point.
o
Disclosure occurs at the same time as the motion to institute proceedings.

331.3 CCP – Communication: Parties must communicate the content of written evidence to the other side.
o
Communication occurs whenever the parties agree, based on the timetable.

331.7 CCP – Production: Parties must file exhibits in the court record.
o
Production must occur 15 days before inscription.
o
The plaintiff’s documents/exhibits are titled P1, P2, etc. and the defendant’s are titled D1, D2, etc.

402.1 CCP – Experts cannot testify unless they have filed a prior report, so that the other party can respond properly
to the expert’s testimony. No surprises, no sneakiness, more fairness.
Examples of Proceedings
16 November 2006 – Motion Introductive of Proceedings
o
“PL claims damages arising from the negligence of DF...”
o
The motion identifies the parties, the alleged facts, and refers to exhibits.
o
The plaintiff grounds the defendant’s liability in facts, and gives an itemized list of the claimed damages.
o
“Wherefore, Plaintiff Prays for Judgment of this Honourable Court...” (i.e. what the PL wants the court to do)
o
Schedule 1, attached to the motion, indicates that the DF must file an appearance within 10 days of service. This
schedule discloses the exhibits mentioned in the motion.
24 November 2006- Comparution (Appearance)
o
One sentence (stating the defendant’s appearance) is filed by lawyer.
18 December 2006- Timetable (Art. 151.1 C.C.P.)
o
The timetable includes both the initial Motion and Appearance on list of events.
o
Future events are scheduled “on or before” certain dates, from 26 January 2007 (Examination on discovery of the
plaintiff) to 22 June 2007 (Service and declaration of inscription, per art. 274.2 CCP).
o
The timetable is signed and dated by the lawyers.
42
31 May 2007 – Defence
o
DF files a response to every paragraph in the Motion Introductive of Proceedings, admitting or challenging the
facts as seen fit. At the end, DF asks the court to accept the defence and reject the claim of the plaintiff.
4 June 2007- Notice of Production of Expertise Report (Art. 402.1 CCP)
o
This is a notice made to the lawyers of the defendant, stating that an expertise report was produced into the
court record. A copy of the report is attached.
4 June 2007- Notice of Production of Documents (Art. 403 CCP)
o
PL’s lawyers produce a list of exhibits to the DF's lawyers, and state that if the defendant does not “deny the
genuineness or correctness” of the documents within 10 days, the genuineness and correctness of the documents
shall be considered admitted.
30 July 2007- Answer to Plea
o
PL responds to every paragraph of Defence, admitting, ignoring or joining the issues.
o
In the end, the answer states that the DF's plea is ill-founded in fact and in law, that the PL's Answer is well
founded in fact and in law, and that the PL asks the court again to grant the PL’s motion and deny DF’s motion
30 July 2007- Inscription for Proof and Hearing on the Merits
o
This is a short statement establishing that P intends to go before the court for Proof and Hearing.
30 July 2007- Plaintiff’s Declaration of Inscription for Proof and Hearing
o
Deponent – Attorney responsible (whether PL, DF or other)
o
Exhibits – Checkbox stating whether or not the list of exhibits disclosed to other party is enclosed
o
Checkbox list of what has been forwarded to other party to date, in accordance with various CCP articles.
o
Expected length of trial (e.g. 1½ days)
o
Concise Statement of the Questions of Law and Fact in Dispute
o
Witnesses – Witnesses to be called, what they will testify about, time required, and language of testimony
o
Expert Witnesses – Same as above
o
List of Exhibits – i.e., Documents to be used at trial
19 September 2007- Declaration de la Partie Defendresse (Art. 274.2 C.P.C.)
o
Names and addresses of the attorneys of the parties
o
Checkboxes for documents communicated to defense
o
Attestation that the dossier is complete and the expected duration of trial (2 days, ½ day more than PL stated)
o
List of witnesses, and language of testimony (no times given)
o
List of questions of law and fact in dispute
Facts
Issues
Dispositions
Ratio
Reasoning
Arguin v. Nault, QCSC, CVL, 2007
The PL filed a claim for damages following an injury by the defendant just before the prescription
period ran out (3 yrs). This started the clock on the 180-day limit (110.1 CCP). The 180 days ran
out and the PL filed more than 3 months after the deadline. The PL claims that missing the deadline
was a mistake caused by the departure of her lawyer’s secretary.
Can the PL be excused for missing the 180-day limit?
No.
The 180-day limit is REAL.

The 180-day rule is a key reform of the civil procedure system.

It is up to the parties to take responsibility for their file. The party likewise bears the burden
of proving that the situation is exceptional and merits an extension.

Delays are only allowed for cases that are complex or that have special circumstances. To be
excused, one must show the impossibility of acting within the prescribed period.

Errors by a lawyer should not exempt the party from having to follow the rule.

There is no proof here that there was an impossibility of acting. This looks more like
negligence on the part of the lawyer. “We cannot allow apathy to be used an excuse”
OVERVIEW OF THE PRE-TRIAL PHASE IN ONTARIO
While QC has generalized case management (art. 151.1 et seq.) and one fairly unified procedure, Ontario has THREE:
1.
2.
3.
Regular track – ordinary rules of procedure
Simplified procedure (cases up to $100,000)
Case management in certain judicial districts (and a modified case management system for Toronto)
Mandatory Mediation: 24.1.01: This Rule provides for mandatory mediation in specified actions, in order to reduce the
cost and delay in litigation and facilitate the early and fair resolution of disputes.
43
Case Management: 77.01(1): The purpose of this Rule is to establish a case management system that provides case
management only where a need for the court’s intervention is demonstrated and only to the degree that is appropriate.
RULE 50: PRE-TRIAL CONFERENCE
50.01: The purpose of this Rule is to provide an opportunity for any or all of the issues in a proceeding to be settled
without a hearing and, with respect to any issues that are not settled, to obtain from the court orders or directions to
assist in the just, most expeditious and least expensive disposition of the proceeding, including orders or directions to
ensure that any hearing proceeds in an orderly and efficient manner.
PRE-TRIAL CONFERENCES FOR ACTIONS
The registrar shall, within 90 days after an action is set down for trial, give the parties notice to appear before a
judge or case management master for a pre-trial conference under this Rule, unless the court orders otherwise.
Note: On January 1, 2010, rule 50.02 is revoked and the following substituted:
50.02 (1) Unless the court orders otherwise, within 180 days after an action is set down for trial, the parties shall
schedule with the registrar a date and time acceptable to all parties to appear before a judge or case
management master for a pre-trial conference under this Rule. O. Reg. 438/08, s. 47.
(2) If the parties do not schedule a pre-trial conference within 180 days after the action is set down for trial, the
registrar shall, subject to any previous order, (a) schedule the conference and (b) notify the parties. See: 22 &
33(1)
50.02
50.03
50.04
50.05
PRE-TRIAL CONFERENCES FOR APPLICATIONS
In an application, a judge may direct that a pre-trial conference be held before a judge or case management
master.
MATERIALS TO BE FILED
At least five days before a pre-trial conference, each party shall file with proof of service a pre-trial conference
brief containing concise statements, without argument, of the following matters:
1. The nature of the proceeding
2. The issues raised and the party’s position
3. In the case of an action, the names of the witnesses that the party is likely to call at the trial and the
length of time that the evidence of each of those witnesses is estimated to take
4. The steps that need to be completed before the action is ready for trial or the application is ready to be
heard, and the estimated length of time that those steps will take.
ATTENDANCE
(1) The lawyers for the parties shall appear at the pre-trial conference and, unless the presiding judge or case
management master orders otherwise, the parties shall participate,
(a) by personal attendance; or
(b) under rule 1.08 (telephone and video conferences), if personal attendance would require undue amounts
of travel time or expense.
Authority to Settle
(2) A party who requires another person’s approval before agreeing to a settlement shall, before the pre-trial conference,
arrange to have ready telephone access to the other person throughout the conference.
MATTERS TO BE CONSIDERED
50.06
The following matters shall be considered at a pre-trial conference:
1. The possibility of settlement of any or all of the issues in the proceeding.
2. Simplification of the issues.
3. The possibility of obtaining admissions that may facilitate the hearing.
4. The question of liability.
5. The amount of damages, if damages are claimed.
6. The estimated duration of the trial or hearing.
7. The advisability of having the court appoint an expert.
8. In the case of an action, the number of expert witnesses and other witnesses that may be called by each
party, and dates for the service of any outstanding or supplementary experts’ reports.
9. The advisability of fixing a date for the trial or hearing.
10. The advisability of directing a reference.
11. Any other matter that may assist in the just, most expeditious and least expensive disposition of the
proceeding.
POWERS
50.07 (1) If the proceeding is not settled at the conference, the presiding judge or case management master may:
(a) establish a timetable and, subject to the direction of the regional senior judge or a judge designated by
him or her, fix a date for the trial or hearing;
44
(b) in the case of a proceeding governed by Rule 77, order a case conference under rule 77.08 if it is
impractical to establish a timetable; and
(c) make such order as the judge or case management master considers necessary or advisable with respect
to the conduct of the proceeding, including any order under subrule 20.05 (1) or (2).
Order Binds Parties
(2) An order made under this rule binds the parties unless the judge or officer presiding at the hearing of the proceeding
orders otherwise to prevent injustice.
(3) A copy of any order made under this rule shall be placed with the trial or application record. O. Reg. 438/08, s. 47.
PRE-TRIAL CONFERENCE REPORT
50.08
50.09
50.10
(1) If a date for a trial or hearing is fixed under 50.07 (1) (a), the presiding judge or case management master
shall complete a pre-trial conference report,
(a) stating what steps need to be completed before the action is ready for the trial or hearing, and how much
time is needed to complete those steps;
(b) stating the anticipated length of the trial or hearing; and
(c) setting out any other matter relevant to scheduling the trial or hearing.
(2) A copy of the pre-trial conference report will be filed with the trial/application record.
(3) Each party or the party’s lawyer shall certify on the copy of the pre-trial conference report that is to be
placed with the trial or application record that he or she understands the contents of the report and
acknowledges the obligation to be ready to proceed on the date fixed for the trial or hearing.
(4) Each lawyer who represents a party shall, in addition to giving the certificate described in subrule (3),
undertake to the court to advise the party of,
(a) the contents of the pre-trial conference report; and
(b) the obligation to be ready to proceed on the date fixed for the trial or hearing.
NO DISCLOSURE
No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or
reference in the proceeding with respect to any statement made at a pre-trial conference, except as disclosed in
an order under rule 50.07 or in a pre-trial conference report under rule 50.08. O. Reg. 438/08, s. 47.
PRE-TRIAL JUDGE NOT TO PRESIDE AT HEARING
(1) A judge who conducts a pre-trial conference shall not preside at the trial of the action or the hearing of the
application, except with the written consent of all parties.
Conference Before Trial Judge
(3) Subrule (1) does not stop a judge before whom a proceeding has been called for hearing from holding a
conference either before or during the hearing to consider any matter that may assist in the just, most
expeditious and least expensive disposition of the proceeding without disqualifying himself or herself from
presiding at the hearing.
50.11
50.12
DOCUMENTS TO BE MADE AVAILABLE
All documents intended to be used at the trial or hearing that may be of assistance in achieving the purposes of a
pre-trial conference, such as any medical reports and reports of experts, shall be provided to the presiding judge
or case management master at the conference. O. Reg. 438/08, s. 47.
COSTS OF PRE-TRIAL CONFERENCE
At the pre-trial conference, the presiding judge or case management master may make an order for costs of the
conference, but in the absence of such an order the costs shall be assessed as part of the costs of the
proceeding. O. Reg. 438/08, s. 47.
Overview of Ordinary Procedure



The statement of claim/notice of action (Rule 14.03) must be served within 6 months (Rule 14.08) in order to
give the DF time to challenge territorial jurisdiction of Ontario court (Rule 17.06)
The defence must be delivered in 20, 40, or 60 days depending on the location of the defendant (Rule 18.01). DF
can get extra time by filing a notice of defence within the limit followed by the defence within 10 days. (Rule 18.02)
A default judgment may be rendered if no defence is filed within the time limit. (Rule 19)
Possible Complications

Summary judgment (Rule 20)1 A summary judgment is rendered because there is no genuine issue, the issue
concerns only quantum, or there is a very circumscribed question that the judge can respond to without trial.

Preliminary exceptions (Rule 21) e.g. capacity, subject matter jurisdiction, frivolous action, etc.
1
Quebec has nothing like summary judgment, but a judge can dismiss a case under 165(4) and 54.1 CCP.
45



Pre-trial conferences are mandatory for actions and optional for applications. (Rule 50)
Affidavit of documents (Rule 30.03)2 Parties must disclose all documents that are relevant to the case.3
Examination for discovery (Rule 31) Note: there is a time limit and a monetary limit. Discovery may be written.4
To curb abuse of discovery:
o
Monetary limit: In both QC and ON, there is no discovery for cases under $25K. (Ontario’s small claims court
goes up to $25K, and there is no discovery for small claims.)
o
Time limit: Under simplified procedure, cases up to $100K get 2h and cases over $100K get 7h.
o
Scope: You can only discover a party on issues within the scope of the case. (Prior to 2010, it was any issue
“related to” to case.)

Setting down for trial: Rule 24.01 allows for a motion to strike after 6 months by default if the case is not set down
for trial. However, the Court will only intervene after two years. The Court will send a “status” notice, after which
parties have 90 days to argue why their case shouldn’t be dismissed (Rule 48.14(1))
2010 Changes to Ordinary Procedure

The duration and scope of discovery is limited, and parties must file a discovery plan (Rule 29.1)

Pre-Trial Conferences are now mandatory (Rule 50.01) and occur before a judge or a case management master.5

The purpose is to reduce the amount of cases that go to trial in a just, expeditious, and cheap way.

All documents to be used at trial must be provided at the pre-trial conference. Both lawyers and parties (in person or
by phone) must attend. N.B., parties are not required to attend the trial! The reason why they must attend the
conference is that their presence increases the chance of settlement.

The pre-trial conference must take place within 180 days of the action being set down for trial. N.B., since you have
1 month to file the statement of claim and 6 months to set the case down for trial, the conference can happen as late
as 2 years and 7 months after the action.
2010 Changes to Simplified Procedure – Rule 76

Simplified procedure is mandatory for actions up to $100,000 (Rule 76.02(2))

These changes are implemented to ensure proportionality between procedures and the value of the claim.6

If simplified procedure is required be not followed, the party at fault must pay costs (Rule 76. 13)

Examination for discovery is oral and limited under (Rule 76.04) See details above.

Parties must have settlement discussion (in person or by phone) within 60 days of the defence (Rule 76.08)

There is a quicker timeline: The action must be set down for trial within 180 days of the defence (Rule 76.09)

Pre-trial conferences are no longer unique to simplified procedure cases; they are required for all cases.
2010 Changes to Case Management Track – Rule 77

The new purpose is to establish case management only for those cases that need it – see Rule 77.05 for criteria.
i.e., Cases are no longer automatically subject to case management. The parties and the judge must agree to it.

The lion’s share of case management remains with the parties. Recall that Woolf thought that parties had too much
power. Ontario tried that and it didn’t work, so now it’s gone back to giving the parties control.

Case management still exists only in certain counties (Ottawa, Essex and Toronto) and for certain actions (e.g. no
family, class actions, estates, bankruptcy mortgage actions. Commercial list cases are excluded in Toronto. Case
management is essentially limited to tort, contract and insurance claims.)

There is no longer a modified case management track for Toronto.

Settlement conferences and trial management conferences are no longer mandatory. A judge can order a
case conference at any time (with or without the party’s request) (Rule 77.08)

Mediation is still mandatory within 180 days of the defence. (Rule 24.1) N.B. Mediation occurs before private
mediators and must be paid for by the parties.
Note: There are a few different 180-day rules:
(1) QC: 180-days from time of service to inscription for proof of service (110.1 CCP)
(2) ON: Simplified procedure cases must be laid down for trial within 180 days (76.09)
(3) ON: Mandatory mediation must occur within 180 days of the defence (24.1)
SUMMARY JUDGMENT: RULE 20
2
In Quebec, you only have to disclose the documents that you will use in your case, i.e., you can legally withhold documents that
are relevant to the case but that do not serve your case. Ontario is different.
3
Prior to 2010, parties had to disclose all documents related to the case. This resulted in the strategic “drowning” of the other
side in irrelevant documents. We have yet to see if the new wording (“relevant to”) will change anything.
4
In Quebec, discovery is only oral.
5
Masters are quasi-judges vested with judicial authority but with a very limited jurisdiction (e.g. over case management, pre-trial
conferences, etc.) Masters are unique to Ontario.
6
Note that Ontario’s Small Claims jurisdiction rose to $50K in 2010 – making it the highest small claims jurisdiction in Canada.
46
20.01
(3)
The plaintiff (20.01(1)) or the defendant (20.01(3)) may move with supporting affidavit material or other
evidence for summary judgment on all or part of the claim after the statement of defense has been delivered.
The plaintiff may move for leave to serve a notice of motion for summary judgment together with the statement
of claim. Leave may be given where special urgency is shown, subject to such directions as are just.
20.02
(1) An affidavit for use on a motion for summary judgment may be made on information and belief as
provided in subrule 39.01(4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse
inference from the failure of a party to provide the evidence of any person having knowledge of contested facts.
(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding
party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit or
other evidence, specific facts showing that there is a genuine issue requiring a trial.
20.03
(1) On a motion for summary judgment, each party shall serve on every other party to the motion a factum
consisting of a concise argument stating the facts and law relied on by the party.
(2) The moving party’s factum shall be served at least four days before the hearing.
(3) The responding party’s factum shall be served at least two days before the hearing.
(4) Each party’s factum shall be filed, with proof of service, in the court office where the motion is to be heard,
at least two days before the hearing
20.04
(2) The court shall grant summary judgment if:
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is
satisfied that it is appropriate to grant summary judgment.
Powers
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall
consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge
may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to
be exercised only at a trial:
1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.
Oral Evidence (Mini-Trial)
(2.2) A judge may, for the purposes of exercising any powers set out in (2.1), order that oral evidence be
presented by one or more parties, with or without time limits on its presentation.
If the Only Genuine Issue is an Amount
(3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled,
the court may order a trial of that issue or grant judgment with a reference to determine the amount.
If the Only Genuine Issue is a Question of Law
(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the
question and rule accordingly. (If the motion is made to a Master, it must be adjourned to be heard by a judge.)
Only Claim Is For An Accounting
(5) Where the plaintiff is the moving party and claims an accounting and the defendant fails to satisfy the court
that there is a preliminary issue to be tried, the court may rule on the claim with a reference to take the
accounts.
WHERE A TRIAL IS NECESSARY – OLD RULES
Powers of Court
20.05 (1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what
material facts are not in dispute and defining the issues to be tried and may order that the case be set down (a)
on a list of cases requiring speedy trial, or (b) in the normal course or within a specified amount of time.
(2) At the trial. these facts shall be deemed to be established and the trial shall be conducted accordingly, unless
the trial judge orders otherwise to prevent injustice.
Imposition of Terms
(3) Where an action is ordered to go to trial, the court may impose such terms as are just, including an order,
(a) for payment into court of all or part of the claim;
(b) for security for costs; and
(c) that the nature and scope of discovery, if any, be limited to matters not covered by the affidavits filed on the
motion and any cross-examinations on them, and that the affidavits and cross-examinations may be used at trial
in the same manner as an examination for discovery.
Failure to Comply with Order
(4) Where a party fails to comply with an order for payment into court or for security for costs, the court on
motion of the opposite party may dismiss the action, strike out the defence or make such other order as is just.
(5) Where on a motion under sub-rule (4) the statement of defence is struck out, the defendant shall be deemed
to be noted in default.
WHERE TRIAL IS NECESSARY – NEW RULES
Powers of Court
47
20.05
(1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what
material facts are not in dispute, defining the issues to be tried, and ordering the action to go to trial
expeditiously.
Directions and Terms
(2) If an action is ordered to proceed to trial under subrule (1), the court may give such directions or impose
such terms as are just, including an order,
(a) that each party deliver, within a specified time, an affidavit of documents in accordance with the
court’s directions;
(b) that any motions be brought within a specified time;
(c) that a statement setting out what material facts are not in dispute be filed within a specified time;
(d) that examinations for discovery be conducted in accordance with a discovery plan established by the
court, which may set a schedule for examinations and impose such limits on the right of discovery as are
just, including a limit on the scope of discovery to matters not covered by the affidavits or any other
evidence filed on the motion and any cross-examinations on them;
(e) that a discovery plan agreed to by the parties under Rule 29.1 (discovery plan) be amended;
(f) that the affidavits or any other evidence filed on the motion and any cross-examinations on them may be
used at trial in the same manner as an examination for discovery;
(g) that any examination of a person under Rule 36 (taking evidence before trial) be subject to a time limit;
(h) that a party deliver, within a specified time, a written summary of the anticipated evidence of a witness;
(i) that any oral examination of a witness at trial be subject to a time limit;
(j) that the evidence of a witness be given in whole or in part by affidavit;
(k) that any experts engaged by or on behalf of the parties in relation to the action meet on a without
prejudice basis in order to identify the issues on which the experts agree and the issues on which they do
not agree, to attempt to clarify and resolve any issues that are the subject of disagreement and to
prepare a joint statement setting out the areas of agreement and any areas of disagreement and the
reasons for it if, in the opinion of the court, the cost or time savings or other benefits that may be
achieved from the meeting are proportionate to the amounts at stake or the importance of the issues
involved in the case and,
(i) there is a reasonable prospect for agreement on some or all of the issues, or
(ii) the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would
assist the parties or the court;
(l) that each of the parties deliver a concise summary of his or her opening statement;
(m) that the parties appear before the court by a specified date, at which appearance the court may make
any order that may be made under this subrule;
(n) that the action be set down for trial on a particular date or on a particular trial list, subject to the
direction of the regional senior judge;
(o) for payment into court of all or part of the claim; and
(p) for security for costs.
Specified Facts
(3) At the trial, any facts specified under subrule (1) or clause (2) (c) shall be deemed to be established unless
the trial judge orders otherwise to prevent injustice.
Order re: Affidavit Evidence
(4) In deciding whether to make an order under clause (2) (j), the fact that an adverse party may reasonably
require the attendance of the deponent at trial for cross-examination is a relevant consideration.
Order re Experts, Costs
(5) If an order is made under clause (2) (k), each party shall bear his or her own costs.
Failure to Comply with Order
(6) Where a party fails to comply with an order under clause (2) (o) for payment into court or under clause (2)
(p) for security for costs, the court on motion of the opposite party may dismiss the action, strike out the
statement of defence or make such other order as is just.
(7) Where on a motion under subrule (6) the statement of defence is struck out, the defendant shall be deemed
to be noted in default.
COSTS SANCTIONS FOR IMPROPER USE OF RULE – OLD RULES
20.06 (1) Where, on a motion for summary judgment, the moving party obtains no relief, the court shall fix the
opposite party’s costs of the motion on a substantial indemnity basis and order the moving party to pay them
forthwith unless the court is satisfied that the (albeit unsuccessful) motion was reasonable.
(2) Where it appears to the court that a party to a motion for summary judgment has acted in bad faith or
primarily for the purpose of delay, the court may fix and order the substantial indemnity costs of the motion.
COSTS SANCTIONS FOR IMPROPER USE OF RULE – NEW RULES
20.06 The court may order payment of the costs of a motion for summary judgment on a substantial indemnity basis if:
(a) the party acted unreasonably by making or responding to the motion; or
(b) the party acted in bad faith for the purpose of delay. O. Reg. 438/08, ss. 14, 68(1).
20.07
A plaintiff who obtains summary judgment may proceed against the same defendant for any other relief.
48
20.08
Where it appears that the enforcement of a summary judgment ought to be stayed pending the
determination of any other issue in the action or a counterclaim, crossclaim or third party claim, the court may so
order on such terms as are just.
20.09
Rules 20.01 to 20.08 apply, with necessary modifications, to counterclaims, crossclaims and third party claims.
RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL
Availability to Any Party on a Question of Law
21.01 (1) A party may move before a judge
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the
determination of the question may dispose of all or part of the action, substantially shorten the trial or
result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(a) under clause (1) (a), except with leave of a judge or on consent of the parties;
(b) under clause (1) (b).
Availability to Defendant
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(a) the court has no jurisdiction over the subject matter of the action;
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does
not have the legal capacity to be sued;
(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in
respect of the same subject matter; or
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
21.02
21.03
A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court
in awarding costs.
(1) On a motion under rule 21.01, each party shall serve on every other party to the motion a factum consisting
of a concise argument stating the facts and law relied on by the party. O. Reg. 14/04, s. 15.
(2) The moving party’s factum shall be served at least four days before the hearing. O. Reg. 14/04, s. 15.
(3) The responding party’s factum shall be served at least two days before the hearing. O. Reg. 14/04, s. 15.
(4) Each party’s factum shall be filed, with proof of service, in the court office where the motion is to be heard,
at least two days before the hearing. O. Reg. 14/04, s. 15.
Facts
Issues
Held
Reasons
Mohamed v. Banville (ONSCJ)
Banville and Borrow filed a motion to dismiss Mohammed's action against them as disclosing no
genuine issue for trial. Banville and Borrow rented a unit in a home owned by Mohammed, which
burned to the ground (for reasons unknown.) On the night of the fire, Banville was drunk, borrowed
cigarettes from another tenant, and fell asleep on the couch. No smoking materials were found close to
his couch. The fire started in the unit Banville and Borrow rented. Other tenants managed to escape
although Banville and another tenant were injured. The original claim was negligence, but after
pleadings closed, the claim was amended to include the tort of nuisance and strict liability.
1. Is there a genuine issue for trial with respect to the claims?
No – the action is dismissed

Rule 20.04 provides that summary judgment is to be granted where the court is satisfied that
there is no genuine issue for trial with respect to a claim or defence. It is meant to weed out cases
at the pre-trial stage when it can be demonstrated clearly that a trial is unnecessary".

If the evidence on a motion for summary judgment satisfies the court that there is no issue of fact
which requires a trial for its resolution, the requirements of the rule have been met. It must be
clear that a trial is unnecessary. The burden of proof is on the moving party, while the
responding party must establish that the claim has a "real chance of success".

Keep in mind that the court's function not to resolve an issue of fact but to determine whether a
genuine issue of fact exists. (19)

A fact is "material" if the result of the proceeding turns on its existence or non-existence. The
judge on a summary judgment motion should only determine whether a genuine issue exists about
a material fact. If so, it is not his job to resolve it.

In examining the evidence the court is not to assess credibility, weigh evidence, find facts or make
factual inferences. These functions are reserved for the trier of fact. (N.B. This is completely
reversed by the new rules!)
In this case…

The facts that Banville was a smoker, was drunk, and was passed out on the couch shortly before
the fire occurred were insufficient to establish negligence. The presence of smoking materials
proximate to the origin of the fire was necessary. Without establishing with certainty the cause of
the fire, Mohammed's claims in nuisance and strict liability were barred.
49
Facts
Held
Reasons
Healey v. Lakeridge Heath Corp.
PLs (Healey and Horgan) and DF (Lakeridge) both apply for partial summary judgment under Rule 20.
Two patients at hospitals operated by Lakeridge were diagnosed with tuberculosis. Lakeridge notified
Public Health, who told the 4,402 persons who had had contact with the “index patients” to get tested.
Healey and Horgan received such notices and tested positive for TB. They began class actions against
Lakeridge and the physicians who had treated the index patients. The class actions alleged that the
defendants failed to properly diagnose active TB and failed to take precautions to prevent the spread of
infection and risk of harm. In the motions for summary judgment, the PLs claimed an aggregate
assessment of those damages on behalf of the Uninfected Persons for psychological injury and on behalf
of the Family Law Claimants. Lakeridge sought to dismiss the claims of those classes of claimants.
Lakeridge wins. The Court had jurisdiction to grant summary judgment under the revised Rule 20 and it
was appropriate in this case.

The purpose of the summary judgment rule is to dispose of an action where it is shown that a
trial is not necessary. Holding an unnecessary trial represents a failure of procedural justice.

“The successful party has been both unnecessarily delayed in the obtaining of substantive justice and
been obliged to incur added expense. Rule 20 exists as a mechanism for avoiding these failures of
procedural justice.” (para. 16)

“Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties... It is
essential to the proper operation of the justice system …that claims that have no chance of success
be weeded out at an early stage. (para 17)
The former rule 20.04(2) provided that the court shall grant summary judgment where the court is
satisfied that "there is no genuine issue for trial." The amended rule provides for a summary judgment
if the court is satisfied that "there is no genuine issue requiring a trial." (para 19).

The former test was regarded as too strict, and the rule was not achieving its purposes;

The utility of the rule was being impaired by case law that had held that a motions judge could not
assess credibility, weigh evidence, or find facts on a motion for summary judgment

The new rule, 20.04(2.1) provides the judge with more powers when dealing with a motion for
summary judgment. It reverses the previous jurisprudence.
The reasons for replacing "no genuine issue for trial" with "no genuine issue requiring a trial" are:

To make summary judgment more readily available; and

To recognize that with the court's expanded forensic powers, although there may be issues
appropriate for trial, these issues may not require a trial because the court has the power to weigh
evidence on a motion for summary judgment
The new Rule 20 does not mean that the courts will be more likely to deny a party their day in court:

Since the introduction of summary judgment, the courts have struggled to find a balance between
summary judgments and trial hearings.

Rule 20.04 (2.1) envisions that the motions judge may use the powers of a trial judge unless it is in
the interest of justice for such powers to be exercised only at a trial.

The reference to the interests of justice suggests that the motions judge will have to assess
whether the search for truth and justice requires a trial, whether requiring the parties to go to trial
would be a failure of procedural justice because the holding of a trial is unnecessary

In light of a motions judge’s new powers, the moving party must provide a level of proof that
demonstrates that a trial is unnecessary to truly, fairly, and justly resolve the issues.

The motions judge must precisely identify the issues to be resolved because the nature of the
particular issues to be resolved both qualitatively and quantitatively will be relevant to determining
whether a trial is necessary.
In this case…
Lakeridge did not owe a duty of care to the Uninfected Persons, and any compensable damages suffered
by the Uninfected Persons were remote in law. The Family Law Claimants' claim depended on the success
of the claim of the Uninfected Persons. If an aggregate assessment was available, the PLs didn’t prove it.
PLEADINGS AND SERVICE
There are two competing philosophies on what pleadings should contain: fact pleading or notice pleading7. Fact pleading
is better for DFs; notice pleading is better for PLs. Canada has fact pleading.
Fact pleading and notice pleading have different policy aims. Consider:

The less you require of the parties in pleadings, the more you need to give them in discovery. But discovery is
expensive and takes a lot of time.
7
Notice pleading, which they have in the U.S., just requires you to notify the other party of your case. “O hai, I’m suing you.”
50



Pleading impact settlement. If all you have is notice, you may want to settle, but not for the wrong reasons.
Notice pleading might improve access to justice concerns, since PLs who have been harmed but lack the resources to
go through the process of fact pleading can at least get their foot in the door.
E.g. Two U.S. decisions (Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal) were thrown out on the
insufficiency of proceedings. “We can’t unlock the doors of discovery for a plaintiff with nothing but the conclusions.”
Quebec
76.
In their written pleadings, the parties must state the facts that they intend to invoke and the conclusions that
they seek. Such statement must be frank, precise and brief; it shall be divided into paragraphs numbered
consecutively,
77
Every fact of such a nature as to take the opposite party by surprise if not alleged, or to raise an issue not arising
from the pleadings already filed, must be expressly pleaded.
111
A motion to institute proceedings is a concise written statement of the facts on which the action or application
is based and the conclusions sought. Except where prohibited by law or circumstances, a motion may be made
jointly.
119
The motion to institute proceedings must be accompanied by a notice to the defendant to appear within 10 days
(except where otherwise prescribed) to file an answer to the action or application. The notice must also state:
1) that the defendant is required to appear within the time limit indicated, failing which a judgment by
default may be rendered against the defendant without further notice or extension;
2) that if the defendant appears, the action or application will be presented before the court on the date
indicated unless a written agreement is made by the parties before that date to determine a timetable for
the orderly progress of the proceeding;
3) that on the date indicated for presentation, the court may exercise such powers as are necessary to
ensure the orderly progress of the proceeding;
4) that the exhibits in support of the motion are available on request; and
5) that the defendant may make a request to the clerk for the action to be disposed on the grounds of
expired prescription if the defendant would be admissible as a plaintiff and the action would be admissible
under Book VIII, and that if the defendant does not make such a request, the defendant could be liable for
costs according to the rules applicable under the other Books of this Code.
The exhibits in support of the motion to institute proceedings must be disclosed in the notice to the defendant.
The notice must reproduce the text determined by the Minister of Justice.
168
The defendant may ask that the suit be stayed for the time fixed by law or by the judgment granting his motion:
1° when the time allowed him to deliberate and exercise an option in a succession matter has not expired;
2° when he has the right to demand the discussion of the property of the principal or original debtor;
3° when he has the right to demand the execution by the plaintiff of some precedent obligation;
4° when he has the right to demand that the plaintiff declare his option between different recourses that he
has joined, or that co-plaintiffs disjoin separate actions which they have joined;
5° when he wishes to implead a third party whose presence is necessary to permit a complete solution of the
question involved in the action, or against whom he claims to have a recourse in warranty;
6° when the motion to institute proceedings is affected by some irregularity which he has an interest to have
corrected;
7° when he has the right to obtain, in respect of any vague or ambiguous allegations of the demand,
particulars necessary for the preparation of his defence;
8° when he has the right to require that an exhibit the plaintiff intends to refer to at the hearing be
communicated to him by the plaintiff.
The defendant may also ask for the striking out of allegations which are immaterial, redundant or libelous
N.B. 168 CCP covers dilatory exceptions (i.e. reasons to stall proceedings, thereby cutting into the plaintiff’s 180 days
and costing them more) in contrast to declinatory exceptions (reasons for decline hearing the case) in arts.
163-165.
Ontario
RULES OF PLEADING — APPLICABLE TO ALL PLEADINGS
25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the
claim or defence, but not the evidence by which those facts are to be proved.
(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the
material facts supporting them are pleaded. The pleading shall contain the facts relied upon in the claim.
(3) Allegations of the performance or occurrence of all conditions precedent to the assertion of a claim or
defence of a party are implied in the party’s pleading and need not be set out, and an opposite party who intends
to contest the performance or occurrence of a condition precedent shall specify in the opposite party’s pleading
the condition and its non-performance or non-occurrence.
(4) A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are
being pleaded in the alternative.
(5) An allegation that is inconsistent with an allegation made in a party’s previous pleading or that raises a new
ground of claim shall not be made in a subsequent pleading but by way of amendment to the previous pleading.
51
(6) If notice is alleged, it is sufficient to allege notice as a fact unless the form or a term of the notice is material.
(7) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible,
but the precise words of the document or conversation need not be pleaded unless those words are themselves
material.
(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, knowledge may be alleged as a
fact without pleading the circumstances from which it is to be inferred.
(9) Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified and, where
damages are claimed, (a) the amount shall be stated; and (b) the amounts and particulars of special damages
need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further
amounts and particulars shall be delivered once they become known, no less than 10 days before trial.
25.10
If the opposing party refuses to provide particulars with 7 days of the request, the court can order them.
Executing a Foreign Judgment
A foreign judgment will generally be enforced by a Canadian Court if:

The foreign court had proper jurisdiction in the first place (See 3155, 3156, & 3158 CCQ)

3155: (The default position is to enforce due to international comity) except where the country that rendered
the decision did not have jurisdiction.

3156: A Quebec court can’t enforce a foreign default judgment unless defendant had been duly served.

3158: No reference is made to the merits of the case.
Facts
Issues
Dispositions
Reasoning
Major J.
Beals v. Saldanha, SCC, CML, 2003

The Saldanhas are ON residents who owned a lot in FL that they sold to the Beals. There was an
error in the papers, and the Beals started building a model home on the wrong lot. The Beals sued
the Saldanhas, notifying them that the proceedings dealt with costs in excess of $5K. The Saldanhas
believed the value of the claim to be $8K.

While the Saldanhas responded to the relevant action initially, they did not respond to the three
subsequent amendments to that action. FL law states that a failure to defend the amendments has
the effect of not defending the action, and judgment in default of US$260K was awarded.

The damages were not paid and proceedings were initiated in Ontario to enforce the judgment.

At no point were the Saldanhas told the amount of damages. The Saldanhas’ lawyer advised
them that the judgment would not be enforceable in ON and that they should file an appeal in FL.

The CA said the judgment was enforceable, with Weiler in dissent arguing that the defences of
natural justice and fraud applied, since they were not given adequate notice to “permit them to
appreciate the extent of their jeopardy.” N.B. The claim is now over $1million.
Is the judgment enforceable in Canada?
Is the failure to give notice of the need for a defend each amendment a violation of natural justice?
Yes and no. The judgment stands.
1st, to see if it was appropriate to sue in FL, we use the real and substantial connection test. (It was.)
Morgaurd: “the deference and respect due by other states to the actions of a state legitimately taken
within in its territory.”
What defences might prevent the foreign judgment from being enforced?

Morguard sets out defences of fraud, public policy, and a lack of natural justice. These
defences turn on whether the statement of claim and notice constituted adequate notice.

New defences can be created as they are meant to protect against unfairness.

Re: natural justice – domestic courts must be satisfied that a minimum standard of fairness has
been applied. “The defence of natural justice is restricted to the form of the foreign procedure, to
due process, and does not relate to the merits of the case.”

In Canada natural justice includes the right to notice of claim. Major says that it was an error on
the part of the defendant to assume the value of the claim, since the PL was only required to tell
them the nature of the claim and the types of damages. There’s no need for precise dollar amount.

It was the PL’s mistake to not appeal, (i.e. to have relied on their lawyer) – not a mistake of notice.

The PLs should have found out more information about the Florida judicial system. There’s a policy
rationale behind this: “to find otherwise would unduly complicate cross-border transactions.”
Dissent (Binnie J)

If the notice had been sufficient he would have sided with the majority – but “they were kept in the
dark about the true nature and extent of their jeopardy.”

The proceedings transformed, “a minor real estate transaction into a major financial bonanza.”

The PLs failed to respond to amendments that did not even change the allegations against them –
but to do so would have been a waste of time.

Determining the magnitude of a natural justice claim depends on assessing the, “importance of the
decision to the individual or individuals affected” (Baker)

It wouldn’t be obvious to an ON lawyer or a self-rep that a new defense had to be filed each time.
52


There was no notice re: expert witnesses, other parties, mandatory mediation, or that damages
would include for unforeseen sales on homes based on the model home etc.
Canadian residents aren’t presumed to know the laws and risks attendant with notice from a foreign
jurisdiction.
Dissent (Lebel J)

“Our law should be flexible enough to recognize and avoid such harshness.”

Notice requirements should be seen as purposive and flexible. The underlying fundamental
principle of justice is that DFs have a right to know the case against them and to make an
informed decision as to whether or not to present a defence.”

In Canada, the rule is that the amount of damages sought must be mentioned. This isn’t required in
other jurisdictions, but something similar should be required in order to be recognized in Canada.

There is a difference between the fairness of a legal system and the fairness of procedure.

The DF’s failure to respond was not a result of their volition, but a result of listening to their lawyer.
The reasonableness of choosing a remedy must be assessed from the person’s point of view. Poor
legal advice is not an excuse, but it is a mitigating factor here.

Cite de Pont Viau v. Gauthier: Parties can’t be penalized for the error of a counsel when the
party acted with due diligence.

The parties acted conscientiously. “Their apprehensiveness about going back to that legal system
to seek relief was, in the circumstances, understandable.”

This decision means that Canadians will be forced to participate in lawsuits that may be meritless
but have high financial costs.
US Federal Rules of Civil Procedure: Art. 8: General Rules of Pleading
(a) Claims for Relief: A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
(b) Defenses; Admissions and Denials
(1) In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) A denial must fairly respond to the substance of the allegation.
(3) A party that intends in good faith to deny all the allegations of a pleading — including the jurisdictional
grounds — may do so by a general denial. A party that does not intend to deny all the allegations must either
specifically deny designated allegations or generally deny all except those specifically admitted.
(4) A party that intends in good faith to deny only part of an allegation must admit the part that is true.
(5) A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation
must so state, and the statement has the effect of a denial.
(6) An allegation — other than one relating to the amount of damages — is admitted if a responsive pleading
is required and the allegation is not denied. If a
responsive pleading is not required, an allegation is considered denied or avoided.
(c) Affirmative Defenses
(1) In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense,
including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence;
discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant;
laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver.
(2) If a party mistakenly designates a defense as a counterclaim, or vice versa, the court must, if justice
requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.
(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.
(1) Each allegation must be simple, concise, and direct. No technical form is required.
(2) A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a
single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient
if any one of them is sufficient.
(3) A party may state as many separate claims or defenses as it has, regardless of consistency.
(e) Construing Pleadings: Pleadings must be construed so as to do justice.
Scott Dodson, “Comparative Convergences in Pleading Standards”
Bref: American procedure is unique, but there are hints that it is moving towards approaches taken in other counties
(e.g. shifts in form of pleading). Dodson outlines the benefits of transnational comparisons of procedure.

American civil procedure tends to differ from that of other common law jurisdictions, but that may be changing,
suggesting that American procedure is “neither static nor irrevocably exceptionalist” (348).

Normative benefits and practical obstacles to comparative civil procedure
o
Benefits

Can deepen understanding of procedural and underlying policy balances

Can help reform procedure
53

May help bring nations and cultures closer together
Obstacles:

Procedure tends to be rooted in its home system, tends to reflect a society’s values

American proceduralism is particularly inward-looking (349)
American pleading compared to other systems
o
Most lax pleading system in the world
o
Key rule is “Rule 8”, part of the Federal Rules which were designed to instil a “liberal ethos” and to
reduce the importance of pleadings while focusing on liberal discovery and summary judgment
o
Rule 8 replaces fact pleading with notice pleading

Notice is that of the general nature of case & circumstances or events upon which it’s based

Lower courts have interpreted Rule 8 as requiring a ‘detailed narrative’

1957 Conley states that Rule 8 only requires simplified notice pleading and idea that
complaint should not be dismissed unless there is no legal theory behind the claim at all

Seems to be a struggle between lower courts which like fact pleading and the Supreme Court
which tries to bring it back to notice pleading (351)
o
Foreign approach to pleading

CVL countries and Asian procedural systems require more than U.S. wrt fact pleading

England: “pleadings must contain a ‘statement…of the material facts on which the party
pleading relies” (352)

UNIDROIT: reject notice pleading and require a statement of facts that “must, so far as
reasonably practicable, set forth detail as to time, place, participants and events” (352)
Recent changes to the American approach
o
Reform in statutes such as the Private Securities Litigation Reform Act of 1995 and the Y2K Act which
require fact pleading and “demonstrate a newfound congressional willingness to experiment with
rigourous pleading standards normally found only outside Rule 8” (353)
o
Twombly case which was a consumer class action suit which set up a fact-pleading standard of
“plausibility” (354), and began to shift pleadings focus from notice to fact (355)
o
Ashcroft v. Iqbal: upheld Twombly and held that the complaint must contain nonconclusory “well
pleaded factual allegations” that meet the “plausibility” test (354)
o
Plausibility is still different from approach in civil law countries
Effect of trends on comparative studies and transnational relations
o
Comparative approach might enrich the debate over the American pleading system (355)
o
Re-examination and better understanding of America’s own procedural policy balances; “pleading
balances the underlying policies of access to courts and justice with efficiency and economy” (355)
o
Foreign solutions may provide model for reform
o
“Comparative perspectives can illuminate the resurging debate over the transsubstantivity of the
Federal Rules” (356) e.g. relating to the possibility of setting different standards for public interest
cases (356)
o
Foreign systems can provide a predictive model of the consequences of reform in the U.S. (357)
o
“Procedural convergence may produce opportunities for harmonization with foreign systems,
particularly for transnational litigation” (357)
o
May provide U.S. with opportunity to reduce isolationism and improve international relations (357)
o
America might be able to export procedural law and norms (357)
o
May broaden the perspective on the U.S.’s own study of its own state procedural system (358)
o



Facts
Issues
Dispositions
Ratio
Reasoning
Ashcroft v. Iqbal, USSC, CML, 2009
Iqbal was arrested in New York in 2001 on charges of conspiracy to defraud the U.S. and fraud re:
identification documents. He alleged that FBI officials carried out a discriminatory policy by designating
him as a person "of high interest" in the investigation of the 9/11 attacks solely because of his race,
religion, or national origin. Iqbal claimed that on the day he was transferred to the special unit, prison
guards, without provocation, "picked him up and threw him against the wall, kicked him in the
stomach, punched him in the face, and dragged him across the room. He said that after being attacked
a second time he sought medical attention but was denied care for two weeks. He alleges that prison
staff subjected him to an unjustified strip and body cavity searches, verbally berated him as a
"terrorist" and "Muslim killer," refused to give him adequate food, and intentionally turned on air
conditioning during the winter and heating during the summer. He claimed that prison staff interfered
with his attempts to pray and engage in religious study, and with his access to counsel. Mr. Iqbal
pleaded guilty to using another man's Social Security card on April 22, 2002, served a prison term
until his release on January 15, 2003, and was later deported to Pakistan.
Did the respondent plead factual matter that, if taken as true, states a claim that petitioners deprived
him of his clearly established constitutional rights?
Iqbal failed to plead sufficient facts to sustain a claim for purposeful and unlawful discrimination.
Fact pleading survives a motion to dismiss only if it contains facial plausibility, as in Twombly. The
plausibility standard mediates beyond conceivability but short of probability.
Kennedy J., (+ 4, majority)

Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of
54
the claim showing that the pleader is entitled to relief."
USSC in Twombly, the pleading standard Rule 8 announces does not require "detailed factual
allegations," but it demands more than an accusation.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to "state a claim to relief that is plausible on its fact."

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.

Plausibility does not demand probability, but it asks for more than possibility.

In undertaking this inquiry, factual allegations are taken as true, however legal conclusions drawn
need not be taken as true.

IN THE CASE AT BAR: The respondent's complaint has not "nudged [his] claims" of invidious
discrimination "across the line from conceivable to plausible."

Finds that Iqbal's pleadings contains only bare assertions and conclusions.
Souter J., (+3 in dissent)

Iqbal has plead sufficient facts to satisfy Rule 8.

"Under Twombly, the relevant question is whether, assuming the factual allegations are true, the
plaintiff has stated a ground for relief that is plausible. That is, in Twombly's words, a plaintiff
must "allege facts" that, taken as true, are 'suggestive of illegal conduct.'"

The complaint at bar alleges that FBI officials descriminated against Iqbal solely on account of his
race, religion, and national origin, and it alleges the knowledge and deliberate indifference that, by
Ashcroft and Mueller's own admission, are insufficient to make them liable for the illegal action.
This satisfies facial plausibility of Rule 8.

DEFENCE PLEADINGS
CCP, Art. 172 et seq.: Defence Pleadings
CCP 172. The defendant may plead by defence any ground of law or fact which shows that the conclusions of the
demand cannot be granted in whole or in part. He may also in the same proceeding constitute himself cross-plaintiff in
order to urge against the plaintiff any claim arising from the same source as the principal demand, or from a related
source. The court remains seized of the cross demand notwithstanding discontinuance of the principal demand.
RULE 18: Delivery of the Statement of Defense
18.01 Except as provided in rule 18.02 or sub-rule 19.01(5) (late delivery of defence) or 27.04(2) (counterclaim against
plaintiff and non-party), a statement of defence (Form 18A) shall be delivered:
(a) within 20 days after service of the statement of claim, where the defendant is served in Ontario;
(b) within 40 days ... where the DF is served elsewhere in Canada or in the U.S.; or
(c) within 60 days ... where the defendant is served anywhere else.
18.02
(1) A defendant who intends to defend the action may deliver a notice of intent to defend (Form 18B) within
the time prescribed for delivery of a statement of defence. (2) They then have 10 days in addition to the time
prescribed by rule 18.01, within which to deliver a statement of defence.
(3) Sub-rules (1) and (2) apply, with necessary modifications, to,
(a) a defendant to a counterclaim who is not already a party to the main action and who has been served
with a statement of defence and counterclaim; and
(b) a third party who has been served with a third party claim.
RULE 25.07: Rules of Defense Pleading
25.07 (1) In a defence, a party shall admit every allegation of fact in the other party’s pleading that they do not
dispute.
(2) Subject to subrule (6), all allegations of fact that are not denied in a party’s defence shall be deemed to be
admitted unless the party pleads having no knowledge in respect of the fact.
(3) Where a party intends to prove a version of the facts different from that pleaded by the opposite
party, a denial of the version so pleaded is not sufficient. The party shall plead their own version of the facts in
the defence.
(4) In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the
opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue
that has not been raised in the opposite party’s pleading.
(5) Where an agreement is alleged in a pleading, a denial of the agreement by the opposite party shall be
construed only as a denial of the making of the agreement or of the facts from which the agreement may be
implied by law, and not as a denial of the legality or sufficiency in law of the agreement.
(6) In an action for damages, the amount of damages shall be deemed to be in issue unless specifically
admitted.
QUEBEC: SERVICE, APPEARANCE, AND NEGOTIATION OF THE TIMETABLE
Service

In the present system, a bailiff delivers a notice of the motion to the defendant.
55




Why bother? RJ: Natural justice won’t be done if the DF doesn’t have notice and a chance to be heard (in writing or
orally) before the judgment. Audi alterum partum: “hear the other side.” Every party should have the right to be
informed and to respond.
E.g. Art. 5 CCP says “No judicial demand can be adjudicated upon unless the party against whom it is made has been
heard or duly summoned.” But we also recognize that the PF can’t be held hostage to a DF who refuses to appear.
Hence, “duly summoning’ someone is enough to satisfy art. 5.
The general rule of service is still that it should be personal. However courts are changing. Consider the issue of
electronic documents/evidence. Arts 199- 146 talk about exceptions for faxing documents, etc.
119.2ff set out the rules of service.
Appearance

149: The defendant must appear before the expiry of the time fixed, by filing in the office of the court a written
appearance signed by him or his attorney.

If the appearance is not filed, the court can take a default judgement against a defendant.

If there are mistakes in the filing, clients can always make amendments to proceedings.
Negotiation of an Agreement as to the Conduct of the Proceedings (i.e. the Timetable)
 151.1: The parties are required to negotiate a timetable (echancier) charting out the 180-day pre-trial period.

If the parties can’t agree on the timetable by 30 days after the presentation of the action, the judge will impose a
timetable on them.
ONTARIO: SERVICE AND AMENDMENT OF PLEADINGS
Service: Rule 16
16.01 (1) An originating process shall be served personally as provided in rule 16.02 or by an alternative to
personal service as provided in rule 16.03.
(2) A party who has not been served with the originating process but delivers a defence, notice of intent to
defend or notice of appearance shall be deemed to have been served with the originating process as of the date
of delivery.
(3) No other document need be served personally, or by an alternative to personal service, unless these
rules or an order require personal service or an alternative to personal service.
(4) Any document that is not required to be served personally or by an alternative to personal service,
(a) shall be served on a party who has a lawyer of record by serving the lawyer, and service may be
made in a manner provided in rule 16.05;
(b) may be served on a party acting in person or on a person who is not a party,
(i) by mailing a copy of the document to the last address for service provided by the party or
other person or, if no such address has been provided, to the party’s or person’s last known
address, or
(ii) by personal service or by an alternative to personal service.
PERSONAL SERVICE
16.02 (1) Where a document is to be served personally, the service shall be made,
(a) on an individual (except persons with disabilities) by leaving a copy of the document with the individual;
(b) on a municipal corporation, by leaving a copy of the document with the chair, mayor, warden or reeve
of the municipality, with the clerk or deputy clerk of the municipality or with a lawyer for the municipality;
(c) on any other corporation, by leaving a copy of the document with an officer, director or agent of the
corporation, or with a person at any place of business of the corporation who appears to be in control or
management of the place of business;
(d) on a board or commission, by leaving a copy of the document with a member or officer of the board or
commission;
(e) on a person outside Ontario who carries on business in Ontario, by leaving a copy of the document
with anyone carrying on business in Ontario for the person;
(f) on Her Majesty the Queen in right of Canada, in accordance with subsection 23 (2) of the Crown
Liability and Proceedings Act (Canada);
(g) on Her Majesty the Queen in right of Ontario, in accordance with section 10 of the Proceedings
Against the Crown Act;
(h) on the Attorney General of Ontario, by leaving a copy of the document with a lawyer in the Crown Law
Office (Civil Law) of the Ministry of the Attorney General;
(i) on an absentee, by leaving a copy of the document with the absentee’s litigation guardian, if there is one
or, if not, with the Public Guardian and Trustee;
(j) on a minor, by leaving a copy of the document with the litigation guardian if one has been appointed or,
if not, with the minor and, where the minor resides with a parent or other person having the care or lawful
custody of the minor, by leaving another copy of the document with the parent or other person, but, where
the proceeding is in respect of the minor’s interest in an estate or trust, the minor shall be served by leaving
with the Children’s Lawyer a copy of the document bearing the name and address of the minor;
(k) on a mentally incapable person
(i) if there is a guardian or an attorney with a valid power of attorney for personal care with authority to
act in the proceeding, by leaving a copy of the document with the guardian or attorney,
56
(ii) if there is no such guardian or attorney but there is an attorney under a power of attorney with
authority to act in the proceeding, by leaving a copy with the attorney and an additional copy with the
person,
(iii) if there are none of the above, by leaving a copy of the document bearing the person’s name and
address with the Public Guardian and Trustee and leaving an additional copy with the person.
(m) on a partnership, by leaving a copy with any one or more of the partners or with a person at the
principal place of business of the partnership who appears to be in control or management of the place of
business
(n) on a sole proprietorship, by leaving a copy of the document with the sole proprietor or with a person at
the principal place of business of the sole proprietorship who appears to be in control or management of the
place of business.
(2) The dude personally serving a document need not have the original document in his possession or produce
it.
ALTERNATIVES TO PERSONAL SERVICE
16.03 (1) Where these rules or an order of the court permit service by an alternative to personal service, service shall
be made in accordance with this rule.
(2) Service on a party who has a lawyer may be made by leaving a copy with the lawyer or an employee in the
lawyer’s office, provided the lawyer endorses on the document or copy a dated acceptance of service.
(3) By accepting service the lawyer shall be deemed to represent to the court that the lawyer has the authority
of his or her client to accept service.
Service by Mail to Last Known Address
(4) Service of a document may be made by sending a copy of the document together with an acknowledgment
of receipt card (Form 16A) by mail to the last known address of the person to be served, but service by mail
under this subrule is only effective as of the date the sender receives the card. O. Reg. 24/00, s. 3.
Service at Place of Residence
(5) Where an attempt is made to effect personal service at a person’s place of residence and for any reason
personal service cannot be effected, the document may be served by,
(a) leaving a copy, in a sealed envelope addressed to the person, at the place of residence with anyone who
appears to be an adult member of the same household; and
(b) on the same day or the following day mailing another copy of the document to the person at the place of
residence,
and service in this manner is effective on the fifth day after the document is mailed.
Service on a Corporation
(6) Where the head office, registered office or principal place of business of a corporation or, in the case of an
extra-provincial corporation, the attorney for service in Ontario cannot be found at the last address recorded with
the Ministry of Consumer and Commercial Relations, service may be made on the corporation by mailing a copy
of the document to the corporation or to the attorney for service in Ontario, as the case may be, at that address.
SUBSTITUTED SERVICE OR DISPENSING WITH SERVICE
16.04 (1) Where it appears to the court that it is impractical for any reason to effect prompt service of an originating
process or any other document required to be served personally or by an alternative to personal service under
these rules, the court may make an order for substituted service or, where necessary in the interest of justice,
may dispense with service.
Effective Date of Service
(2) In an order for substituted service, the court shall specify when service in accordance with the order is
effective.
(3) Where an order is made dispensing with service of a document, the document shall be deemed to have been
served on the date of the order for the purpose of the computation of time under these rules.
SERVICE ON LAWYER OF RECORD
16.05 (1) Service of a document on the lawyer of record of a party may be made,
(a) by mailing a copy to the lawyer’s office;
(b) by leaving a copy with a lawyer or employee in the lawyer’s office;
(c) by depositing a copy at a document exchange of which the lawyer is a member or subscriber, but service
under this clause is effective only if the document or a copy of it and the copy deposited are date stamped by
the document exchange in the presence of the person depositing the copy;
(d) by faxing a copy to the lawyer’s office in accordance with subrules (3), (3.1) and (3.2) but, where service
is made under this clause between 4 p.m. and midnight, it shall be deemed to have been made the following
day;
(e) by sending a copy to the lawyer’s office by courier; or
(f) by e-mailing a copy to the lawyer’s office in accordance with subrule (4), but service under this rule is
effective only if the lawyer of record provides by e-mail an acceptance of service and the date of the
acceptance, and where the e-mail acceptance is received between 4 p.m. and midnight, service shall be
deemed to have been made on the following day.
57
(2) Service of a document by depositing a copy at a document exchange under clause (1) (c) is effective on the
day following the day on which it was deposited and date stamped, unless that following day is a holiday, in
which case service is effective on the next day that is not a holiday.
(2.1) Service of a document by sending a copy by courier under clause (1) (e) is effective on the second day
following the day the courier was given the document, unless that second day is a holiday, in which case service
is effective on the next day that is not a holiday.
(3) A document that is served by fax shall include a cover page indicating,
(a) the sender’s name, address and telephone number;
(b) the name of the lawyer to be served;
(c) the date and time of transmission;
(d) the total number of pages transmitted, including the cover page;
(e) the fax number of the sender; and
(f) the name and telephone number of a person to contact in the event of transmission problems.
Fax of Certain Documents
(3.1) A document of 16 pages or more inclusive of the cover page and the backsheet may be served by fax only
between 4 p.m. and 8 a.m. the following day, unless the party to be served gives prior consent.
(3.2) A motion record, application record, trial record, appeal book and compendium or book of authorities may
not be served by fax at any time unless the party to be served gives prior consent.
E-mail, Required Information
(4) The e-mail message to which a document served under clause (1) (f) is attached shall include,
(a) the sender’s name, address, telephone number, fax number and e-mail address;
(b) the date and time of transmission; and
(c) the name and telephone number of a person to contact in the event of transmission problems.
SERVICE BY MAIL
16.06 (1) Where a document is to be served by mail under these rules, a copy of the document shall be served by
regular lettermail or by registered mail.
Effective Date
(2) Service of a document by mail, except under subrule 16.03 (4), is effective on the fifth day after the
document is mailed but the document may be filed with proof of service before service becomes effective.
WHERE DOCUMENT DOES NOT REACH PERSON SERVED
16.07 Even though a person has been served with a document in accordance with these rules, the person may show on
a motion to set aside the consequences of default, for an extension of time or in support of a request for an
adjournment, that the document,
(a) did not come to the person’s notice; or
(b) only came to the person’s notice after it was served or is deemed to have been served.
VALIDATING SERVICE
16.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court
may make an order validating the service where the court is satisfied that,
(a) the document came to the notice of the person to be served; or
(b) the document was served in such a manner that it would have come to the notice of the person to be
served, except for the person’s own attempts to evade service.
PROOF OF SERVICE
Affidavit of Service
16.09 (1) Service of a document may be proved by an affidavit of the person who served it (Form 16B).
(2) Personal service or service under subrule 16.03 (5) (service at place of residence) of a document by a sheriff
or sheriff’s officer may be proved by a certificate of service (Form 16C).
(3) A lawyer’s written admission or acceptance of service is sufficient proof of service. No affidavit is required.
(4) Service of a document under clause 16.05 (1) (c) (document exchange) may be proved by the date stamp
on the document or a copy of it.
(5) The affidavit or certificate of service may be printed on the backsheet or on a stamp or sticker affixed to the
backsheet of the document served.
(6) Service of a document under clause 16.05 (1) (f) (e-mail) may be proved by a certificate of service of the
person who served the document stating that he or she,
(a) served the document by e-mailing a copy in accordance with subrule (4) and received by e-mail an
acceptance of service, with the date and time of the acceptance;
(b) has sworn an affidavit of service containing the particulars set out in the certificate of service;
(c) has kept the affidavit of service; and
(d) will, on the request of the court or a party, produce the affidavit of service.
Facts
9026-8863 Quebec Inc. v. Best Buy Canada Ltd., CVL, 2006

The bailiff serves the proceeding on a store manager, then serves an amendment to a manager of another
store. Best Buy had a policy re: how to deal with legal docs, but no one in Quebec knew about it. The
dude who received notice didn’t give it to the right person, and the legal department never saw it.
58
Issues
Held
Ratio
Notes
Best Buy is subject to a huge default judgment (almost 800K!). Within 15 days, they try to revoke it
under 482 CCP but the SC judge upholds the default judgment.

SC: Art. 5 CCP says that proper notice substitutes the right to be heard.

There was sufficient notice: notice was given to people in authority at the company. It’s the company’s
problem that these people didn’t respect their own policy and get the notice to the proper people.

It isn’t up to the PL to make sure that the legal department of the company sees the notice! The law would
be fragile if the court were to excuse Best Buy’s negligence. The size of the judgment is irrelevant.
Should the CA revoke the default judgment, and let BB make a defence?
Yes. Art. 2 CCP can excuse the negligence of a duly summoned party.

Courts need to show a little mercy when it comes to procedure: 2 CCP says that the point of procedure is
to render substance of the law effective, not to toss it out the window!

Best Buy deposited its reasons for having failed to appear, and it did so on time, so we should let them
come back and make a defence.

It is difficult to reconcile Best Buy and Beals. Jukier does not approve of Best Buy.

Procedural law is the handmaiden of the substantive law. CA does not want to take away the DF’s right to
plead a substantive defence.

This is not a case of surprise, fraud, or any other sufficient reason for failure to respond to notice – it is the
negligence of an employee. What does this do to the stability of judgments?
CCP Art. 2
2. The rules of procedure in this Code are intended to render effective the substantive law and to ensure that it is carried
out; and failing a provision to the contrary, failure to observe the rules which are not of public order can only affect a
proceeding if the defect has not been remedied when it was possible to do so. The provisions of this Code must be
interpreted the one by the other, and, so far as possible, in such a way as to facilitate rather than to delay or to end
prematurely the normal advancement of cases.
CCP Art. 199: Amendment of Pleadings
199. At any time before judgment, the parties may amend their pleadings without leave and as often as necessary
provided the amendment is not useless or contrary to the ends of justice and does not result in an entirely new action or
application having no connection with the original one. An amendment may be made, for instance, to modify, correct or
complete allegations or conclusions, to invoke new facts or to assert a right accrued since service of the motion to
institute proceedings.
Ontario Rules, Rule 26: Amendment of Pleadings
[WHAT] 26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as
are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[WHEN] 26.02 A party may amend the party’s pleading,
(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition,
deletion or substitution of a party to the action;
(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s
consent; or
(c) with leave of the court.
[HOW] 26.03 (1) An amendment to a pleading shall be made on the face of the copy filed in the court office, except
that where the amendment is so extensive as to make the amended pleading difficult or inconvenient to read the party
shall file a fresh copy of the original pleading as amended, bearing the date of the original pleading and the title of the
pleading preceded by the word “amended”.
(2) An amendment to a pleading shall be underlined so as to distinguish the amended wording from the original, and the
registrar shall note on the amended pleading the date on which, and the authority by which, the amendment was made.
(3) Where a pleading has been amended more than once each subsequent amendment shall be underlined with an
additional line for each occasion
[SERVICE] 26.04 (1) An amended pleading shall be served forthwith on every person who is, at the time of service, a
party to the main action or to a counterclaim, cross-claim or third party claim in the main action, unless the court orders
otherwise.
(2) Proof of service of an amended pleading other than an originating process shall be filed forthwith after it is served.
(3) Where an amended pleading is an originating process,
(a) it need not be served personally on a party who was served with the original pleading and responded to it;
(b) and it shall be served personally or by an alternative to personal service under rule 16.03 on an opposite
party who has not responded to the original pleading, whether or not the party has been noted in default.
[RESPONDING] 26.05 (1) A party shall respond to an amended pleading within the time remaining for responding to
the original pleading, or within ten days after service of the amended pleading, whichever is the longer period, unless the
court orders otherwise.
(2) A party who responded to a pleading that is subsequently amended and does not respond to the amended pleading
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within the prescribed time shall be deemed to rely on the party’s original pleading in answer to the amended pleading.
[AMENDMENT AT TRIAL] 26.06 Where a pleading is amended at the trial and the amendment is made on the record,
an order need not be taken out and the amended pleading need not be filed/served unless court orders otherwise.
JURISDICTION OF GEOGRAPHY, CHOICE OF FORUM CLAUSES AND ENFORCEMENT OF FOREIGN
JUDGMENTS
Geographic Jurisdiction

Distinct from subject matter distinction: You cannot choose subject matter jurisdiction; it is public order. E.g. If
your claim is $67,000, you must go to the Cour du Quebec; the parties cannot agree to argue before the Superior
Court. If you try, the court must make a motion of its own accord to move the argument.

Declinatory exceptions: Rule 21.01(3) & Art. 163 CCP.
Ontario Rules, Rule 21.01(3): Determination of an Issue Before Trial
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
[Jurisdiction] (a) the court has no jurisdiction over the subject matter of the action;
[Capacity] (b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have
the legal capacity to be sued;
[Another Proceeding Pending] (c) another proceeding is pending in Ontario or another jurisdiction between the same
parties in respect of the same subject matter; or
[Action Frivolous, Vexatious or Abuse of Process] (d) the action is frivolous or vexatious or is otherwise an abuse of
the process of the court, and the judge may make an order or grant judgment accordingly.
CCP, Art. 163: Declinatory Exceptions
163 CCP: A defendant, summoned before a court other than that before which the suit should have been instituted, may
ask that the suit be referred to the competent court within the legislative authority of Québec, or that the suit be
dismissed if there is no such court.
CCP, Arts. 68, 73: Place of Instituting Actions
68 CCP: Subject to the provisions of this Chapter and the provisions of Book X of the Civil Code, and notwithstanding any
agreement to the contrary, a purely personal action may be instituted:
1° Before the court of the defendant's real domicile or, in the cases contemplated by article 83 of the Civil Code,
before that of his elected domicile.
If the defendant has no domicile in Québec but resides or possesses property therein, he may be sued before the
court of his ordinary residence, before the court of the place where such property is situated, or before the court of the
place where the action is personally served upon him;
2° Before the court of the place where the whole cause of action has arisen; or, in an action for libel published in
a newspaper, before the court of the district where the plaintiff resides if the newspaper has circulated therein;
3° Before the court of the place where the contract which gives rise to the action was made.
A contract giving rise to an obligation to deliver, negotiated through a third party who was not the representative of the
creditor of such obligation, is deemed to have been made at the place where the latter gave his consent.
73 CCP: A real action or a mixed action may be taken either before the court of the domicile of the defendant or
before the court of the district where the property in dispute is situated in whole or in part.
Ontario Rules, Rule 13.1.02: Motion to Transfer to Another County
13.1.02 (1) If subrule 13.1.01 (1) applies to a proceeding but a plaintiff or applicant commences it in another place, the
court may, on its own initiative or on any party’s motion, order that the proceeding be transferred to the county
where it should have been commenced.
(2) If subrule (1) does not apply, the court may, on any party’s motion, make an order to transfer the proceeding
to a county other than the one where it was commenced, if the court is satisfied,
(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or
(b) that a transfer is desirable in the interest of justice, having regard to,
(i) where a substantial part of the events or omissions that gave rise to the claim occurred,
(ii) where a substantial part of the damages were sustained,
(iii) where the subject-matter of the proceeding is or was located,
(iv) any local community’s interest in the subject-matter of the proceeding,
(v) the convenience of the parties, the witnesses and the court,
(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most
expeditious and least expensive determination of the proceeding on its merits,
(viii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter.
(3) If an order has previously been made under subrule (2), any party may make a further motion, and in that case
subrule (2) applies with necessary modifications.
(3.1) Despite subrules 37.03 (1) and 76.05 (2) (place of hearing motions), a motion under subrule (1), (2) or (3) may be
brought and heard in the county to which the transfer of the proceeding is sought.
60
Geographic Jurisdiction in Cross Border Situations

When will a forum have the requisite jurisdiction? How can its jurisdiction be ousted?

Note: Applicable forum and applicable law are two very different things.

Strategic considerations of plaintiff (who chooses the forum)
o
Figure out where is cheapest (e.g. close to home/office, witnesses, etc.)
o
Figure out where the highest damages might be achieved.

Procedural rules adhere to the forum, no matter what law is applied to the merits of the
case. Still, damages are a grey area: they relate to both procedure and substance.
o
Consider where costs will be awarded and to what extent.
o
Where does the defendant have assets that can be seized to enforce court order
o
Where do you feel most comfortable

While the plaintiff gets the first kick at the can, all of the rules exist to protect the defendant.

Jurisdictional protections for defendant (who can contest the forum)
o
Suing in the defendant’s jurisdiction is certainly going to be accepted.
o
Consumer Protection legislation indicates that contracts are entered into at the domicile of the consumer.

Generally, you need to find a real and substantial connection (Helicopteros; Morguard at SCC) between the
cause of the action and the forum. N.B. This is not always the best connection (subject to forum non
conveniens). There is no exhaustive list of indicators, but ALI/UNIDROIT gives a good idea. Generally there are
three factors consistently considered:
1. Where is the defendant?
2. Where is the property?
3. Where did a significant part of the cause of action arise?

The difference between ON and QC: One of the items satisfied in 17.02 ON Rules (the real and substantial
connection) can still be rebutted by the defendant. Par contre, in 3148 CCQ (which is substantive instead of
procedural) holds that if one of the items is satisfied, the plaintiff has certainly secured the jurisdiction of Quebec –
i.e., there is no further real and substantial connection to demonstrate. (Spar says this; Patel article criticizes the
divergence in Canada between the R&S connection).
Displacing the Jurisdiction of the Forum (Forum Non Conveniens)

Forum Non Conveniens: Despite prima facie jurisdiction of the forum, the case is more closely related to or would be
more effectively heard in a different jurisdiction.

Rule 17.06: Stay the proceeding because there is a more appropriate forum. (S. 106 Court of Justice Act = Same.)

Art. 3135 CCQ (substantive not procedural) lays out the doctrine of Forum Non Conveniens

While the rules exist to protect the defendant, where the plaintiff sues is very important in reality. Their choice is
often determinative, as it puts the burden on the defendant to challenge that selection.
ALI/UNIDROIT, Principle 2: Jurisdiction Over Parties
2.1 – Jurisdiction over a party may be exercised :
2.1.1 – By consent of the parties to submit the dispute to the tribunal;
2.1.2 – When there is a substantial connection between the forum state and the party or the transaction or
occurrence in dispute. A substantial connection exists when a significant part of the transaction or occurrence occurred
in the forum state, when an individual defendant is a habitual resident of the forum state or a jural entity has received its
charter of organization or has its principal place of business therein, or when property to which the dispute relates is
located in the forum state.
2.2 – Jurisdiction may also be exercised, when no other forum is reasonably available, on the basis of:
2.2.1 – Presence of nationality of the defendant in the forum state; or
2.2.2 – Presence in the forum state of the defendant’s property, whether or not the dispute relates to the property,
but the court’s authority should be limited to the property or its value.
2.3 – A court may grant provisional measures with respect to a person or to property in the territory of the forum state,
even if the court does not have jurisdiction over the controversy.
2.4 – Exercise of jurisdiction must ordinarily be declined when the parties have previously agreed that some other
tribunal has exclusive jurisdiction.
2.5 – Jurisdiction may be declined or the proceeding suspended when the court is manifestly inappropriate relative to
another more appropriate court that could exercise jurisdiction.
2.6 – The court should decline jurisdiction or suspend the proceeding, when the dispute is previously pending in another
court competent to exercise jurisdiction, unless it appears that the dispute will not be fairly, effectively, and expeditiously
resolved in that forum.
Ontario Rules, Rule 17: Service Outside Ontario
17.02 A party to a proceeding may, without a court order, be served outside Ontario with an originating process
or notice of a reference where the proceeding against the party consists of a claim or claims,
[Property in Ontario] (a) in respect of real or personal property in Ontario;
[Administration of Estates] (b) in respect of the administration of the estate of a deceased person,
(i) in respect of real property in Ontario, or
(ii) in respect of personal property, where the deceased person, at the time of death, was resident in Ontario;
[Interpretation of an Instrument] (c) for the interpretation, rectification, enforcement or setting aside of a deed, will,
contract or other instrument in respect of,
61
(i) real or personal property in Ontario, or
(ii) the personal property of a deceased person who, at the time of death, was resident in Ontario;
[Trustee Where Assets Include Property in Ontario] (d) against a trustee in respect of the execution of a trust
contained in a written instrument where the assets of the trust include real or personal property in Ontario;
[Mortgage on Property in Ontario] (e) for foreclosure, sale, payment, possession or redemption in respect of a
mortgage, charge or lien on real or personal property in Ontario;
[Contracts] (f) in respect of a contract where,
(i) the contract was made in Ontario,
(ii) the contract provides that it is to be governed by or interpreted in accordance with the law of Ontario,
(iii) the parties to the contract have agreed that the courts of Ontario are to have jurisdiction over legal
proceedings in respect of the contract, or
(iv) a breach of the contract has been committed in Ontario, even though the breach was preceded or
accompanied by a breach outside Ontario that rendered impossible the performance of the part of the contract
that ought to have been performed in Ontario;
[Tort Committed in Ontario] (g) in respect of a tort committed in Ontario;
[Damage Sustained in Ontario] (h) in respect of damage sustained in Ontario arising from a tort, breach of contract,
breach of fiduciary duty or breach of confidence, wherever committed;
[Injunctions] (i) for an injunction ordering a party to do, or refrain from doing, anything in Ontario or affecting real or
personal property in Ontario;
[Judgment of Court Outside Ontario] (m) on a judgment of a court outside Ontario;
[Authorized by Statute] (n) authorized by statute to be made against a person outside Ontario by a proceeding
commenced in Ontario;
[Necessary or Proper Party] (o) against a person outside Ontario who is a necessary or proper party to a proceeding
properly brought against another person served in Ontario;
[Person Resident or Carrying on Business in Ontario] (p) against a person ordinarily resident or carrying on
business in Ontario;
[ Counterclaim, Crossclaim or Third Party Claim] (q) properly the subject matter of a counterclaim, crossclaim or
third or subsequent party claim under these rules; or
[Taxes] (r) made by or on behalf of the Crown or a municipal corporation to recover money owing for taxes or other
debts due to the Crown or the municipality.
SERVICE OUTSIDE ONTARIO WITH LEAVE
17.03 (1) In any case to which rule 17.02 does not apply, the court may grant leave to serve an originating
process or notice of a reference outside Ontario.
(2) A motion for leave to serve a party outside Ontario may be made without notice, and shall be supported by an
affidavit or other evidence showing in which place or country the person is or probably may be found, and the grounds on
which the motion is made.
ADDITIONAL REQUIREMENTS FOR SERVICE OUTSIDE ONTARIO
17.04 (1) An originating process served outside Ontario without leave shall disclose the facts and specifically refer to the
provision of rule 17.02 relied on in support of such service.
(2) Where an originating process is served outside Ontario with leave of the court, the originating process shall be served
together with the order granting leave and any affidavit or other evidence used to obtain the order.
MANNER OF SERVICE OUTSIDE ONTARIO
17.05 (1) In this rule, “contracting state” means a contracting state under the Convention; (“État contractant”)
“Convention” means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters signed at The Hague on November 15, 1965. (“Convention”).
(2) An originating process or other document to be served outside Ontario in a jurisdiction that is not a contracting state
may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the
jurisdiction where service is made, if service made in that manner could reasonably be expected to come to the notice of
the person to be served.
[Manner of Service in Convention States] (3) An originating process or other document to be served outside Ontario
in a contracting state shall be served,
(a) through the central authority in the contracting state; or
(b) in a manner that is permitted by Article 10 of the Convention and that would be permitted by these rules if
the document were being served in Ontario. O. Reg. 535/92, s. 7.
[Proof of Service] (4) Service may be proved,
(a) in the manner provided by these rules for proof of service in Ontario;
(b) in the manner provided by the law of the jurisdiction where service is made; or
(c) in accordance with the Convention, if service is made in a contracting state (Forms 17A to 17C).
MOTION TO SET ASIDE SERVICE OUTSIDE ONTARIO
17.06 (1) A party who has been served with an originating process outside Ontario may move, before
delivering a defence, notice of intent to defend or notice of appearance,
(a) for an order setting aside the service and any order that authorized the service; or
(b) for an order staying the proceeding.
62
(2) The court may make an order under subrule (1) or such other order as is just where it is satisfied that,
(a) service outside Ontario is not authorized by these rules;
(b) an order granting leave to serve outside Ontario should be set aside; or
(c) Ontario is not a convenient forum for the hearing of the proceeding.
(3) Where on a motion under subrule (1) the court concludes that service outside Ontario is not authorized by these
rules, but the case is one in which it would have been appropriate to grant leave to serve outside Ontario
under rule 17.03, the court may make an order validating the service.
(4) A motion under subrule (1) is not in itself a submission to the jurisdiction of the court over the moving party.
CCQ, Arts. 3134-3154 (Esp. 3148): International Jurisdictions of Quebec Authorities; Personal Actions of an
Extrapatrimonial and Family Nature; Personal Actions of a Patrimonial Nature; Real and Mixed Actions
INTERNATIONAL JURISDICTION OF QUÉBEC AUTHORITIES
3134. In the absence of any special provision, the QC authorities have jurisdiction when the defendant is domiciled in QC.
[FORUM NON CONVENIENS] 3135. Even though a Québec authority has jurisdiction to hear a dispute, it may
exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of
another country are in a better position to decide.
3136. Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient
connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such
proceedings outside Québec cannot reasonably be required.
3137. On the application of a party, a Québec authority may stay its ruling on an action brought before it if another
action, between the same parties, based on the same facts and having the same object is pending before a foreign
authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision
has already been rendered by a foreign authority.
3138. A Québec authority may order provisional or conservatory measures even if it has no jurisdiction over the merits of
the dispute.
3139. Where a Québec authority has jurisdiction to rule on the principal demand, it also has jurisdiction to rule on an
incidental demand or a cross demand.
3140. In cases of emergency or serious inconvenience, Québec authorities may also take such measures as they consider
necessary for the protection of the person or property of a person present in Québec.
3141. A Québec authority has jurisdiction to hear personal actions of an extrapatrimonial and family nature when
one of the persons concerned is domiciled in Québec.
3142. A Québec authority has jurisdiction to rule on the custody of a child provided he is domiciled in Québec.
3143. A Québec authority has jurisdiction to decide cases of support or applications for review of a foreign judgment
which may be recognized in Québec respecting support when one of the parties has his domicile or residence in Québec.
3144. A Québec authority has jurisdiction in matters relating to the nullity of a marriage or the dissolution or nullity of a
civil union when the domicile or place of residence of one of the spouses or the place of solemnization of their marriage or
civil union is in Québec.
3145. As regards the effects of marriage or a civil union, particularly those that are binding on all spouses regardless of
their matrimonial or civil union regime, a Québec authority has jurisdiction when the domicile or place of residence of one
of the spouses is in Québec.
3146. A Québec authority has jurisdiction to rule on separation from bed and board when one of the spouses has his
domicile or residence in Québec at the time of the institution of the proceedings.
3147. A Québec authority has jurisdiction in matters of filiation if the child or one of his parents is domiciled in Québec.
It has jurisdiction in matters of adoption if the child or plaintiff is domiciled in Québec.
3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where:
(1) the defendant has his domicile or his residence in Québec;
(2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the
dispute relates to its activities in Québec
(3) a fault was committed in Québec, damage was suffered in Québec, an injurious act occurred in Québec or
one of the obligations arising from a contract was to be performed in Québec;
(4) the parties have by agreement submitted to it all existing or future disputes between themselves arising out
of a specified legal relationship;
(5) the defendant submits to its jurisdiction.
However, a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all
existing or future disputes between themselves relating to a specified legal relationship to a foreign
authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.
[N.B. This CCQ Article codifies the ‘real and substantial connection’ and regulates jurisdiction].
3149. A Québec authority also has jurisdiction to hear an action involving a consumer contract or a contract of
employment if the consumer or worker has his domicile or residence in Québec; the waiver of such jurisdiction by
the consumer or worker may not be set up against him.
3150. A Québec authority has jurisdiction to hear an action based on a contract of insurance where the holder, the
insured or the beneficiary of the contract is domiciled or resident in Québec, the contract is related to an insurable
interest situated in Québec or the loss took place in Québec.
63
3151. A QC authority has exclusive jurisdiction to hear in first instance all actions founded on liability under 3129 CCQ.
REAL AND MIXED ACTIONS
3152. A Québec authority has jurisdiction over a real action if the property in dispute is situated in Québec.
3153. A Québec authority has jurisdiction in matters of succession if the succession opens in Québec, the defendant or
one of the defendants is domiciled in Québec or the deceased had elected that Québec law should govern his succession.
It also has jurisdiction if any property of the deceased is situated in Québec and a ruling is required as to the devolution
or transmission of the property.
3154. A Québec authority has jurisdiction in matters relating to a matrimonial or civil union regime in the following cases:
(1) the regime is dissolved by the death of one of the spouses and the authority has jurisdiction in respect of the
succession of that spouse;
(2) the object of the proceedings relates only to property situated in Québec.
In other cases, a Québec authority has jurisdiction if one of the spouses has his or her domicile or residence in Québec on
the date of institution of the proceedings.
Spar Aerospace Ltee. V. American Mobile Satellite Corp., CVL, SCC, 2002
American Mobile & 3 others are challenging the jurisdiction of QC court in a complaint by Spar against them.
Spar was a subcontractor of Hughes Aircraft to manufacture stuff for satellites at its QC office. In testing the
satellite, serious damage was caused and Hughes refused to pay Spar the performance-incentive payments
provided in their contract. Spar holds the appellants responsible for the damage to the satellite.
Issues 1) Do the QC courts have competence in the present matter pursuant to the factors set out in 3148(3) CCQ?
2) Should the criterion of a “real and substantial connection” be used when determining whether or not a QC
authority has international jurisdiction under art.3148 CCQ?
3) Even if QC courts are competent in the present matter, should jurisdiction be declined on the basis of the
doctrine of forum non conveniens, pursuant to art.3135 CCQ?
Held
Question 1: Yes – QC courts have competence pursuant to the “damages” criterion in 3148(3) CCQ.
Question 2: No “real and substantial connection” criterion for international jurisdiction
Question 3: No forum non conveniens
Ratio Lebel J. (Majority)
o
Spar’s HQ were in ON. None of the appellants have HQ or establishments in QC.
o
Must consider general principles in the interpretation of private international law: comity (dfn p.252, para19),
order and fairness (though not binding rules)
Question 1: - Jurisdiction Simipliciter
o
4 possible grounds for asserting jurisdiction under 3148(3) but only 2 relevant here (damage & injurious act)
o
Spar claims damage to its reputation in QC, thus resulting in loss of profits/clientele/future profits. The court
accepts Spar’s prima facie case since QC operations had developed their own reputation distinct from Spar’s
national rep, and QC facilities suffered injuries even if incentive payments were to be made to TO office.
o
Injurious act grounds rejected – An injurious act is understood to mean a damage-causing event that attracts
no-fault liability. None is shown in this case.
Question 2 : Real & Substantial Connection (RSC)

Morguard and Hunt established a constitutional imperative for Canadian courts to assume jurisdiction only
where a “real and substantial connection exists” – but this was in the context of interprovincial jurisdictional
disputes. Must consider that we’re a federation and provinces are governed by the same Constitution, so
concern re: federalism underlies these decisions.

The principles of comity, order and fairness guide the determination of PrIL issues such as jurisdiction, forum
non conveniens, choice of law and recognition of foreign judgments. In QC these are codified in CCQ.

Look to the CCQ 1st, then interpret it in accordance with the PrIL principles that underlie the rules. PrIL
principles are not binding rules; they are to assist in interpretation.

There is no need for the application of an additional “real and substantial connection” test to
validate QC jurisdiction since the grounds of actions in 3148 (fault, injurious act, damage, contract) are
sufficient to establish a “real and substantial connection” between the forum and the action.
Question 3 – Doctrine of Forum Non Conveniens:
o
3135 CCQ: the doctrine applies exceptionally. Another country must be in a better position to decide the
case.
o
No other jurisdiction is clearly more appropriate (though there are numerous options.) There is no reason to
use this exceptional power (p.277, para71: 10 possible factors in determining if a country better positioned):
1) The parties’ residence, that of witnesses and experts;
2) The location of the material evidence
3) The place where the contract was negotiated and executed
4) The existence of proceedings pending between the parties in another jurisdiction
5) The location of the Defendants’ assets
6) The applicable law
7) Advantages conferred upon Plaintiff by its choice of forum, if any;
8) The interest of justice
9) The interest of the parties;
10) The need to have the judgment recognized in another jurisdiction.
o
When there is no clear “best” forum, the PL’s choice wins out by default.

The forum non conveniens doctrine (3135) is the counterweight to and the justification for the wide breadth
Facts
64
of 3148. It is where juridical advantage, directness, size of the claim, and other questions will be dealt with.
FNC doctrine depends generally on order and fairness. Order takes into account certainty and efficiency.
Fairness takes into account the context of the individual parties and the appropriateness of any given forum.

FNC requires that the defendant show that the desired forum to be deferred to is “clearly better suited to
decide the case” by these and other relevant criteria.
The only thing that attached this case to QC is that Spar had had an establishment in St Anne de Bellevue, and
the damage was suffered in QC. The SCC kept the case here, because if there is not one other clearly more
convenient forum the case will be kept where it was instituted.

Class
Notes
Van Breda v. Village Resorts Ltd., 2010 ONCA
Facts: Two cases (Van Breda and Charron) involve claims for personal injury damages occasioned as a result of accidents
suffered by Canadian tourists at resorts in Cuba. (Their trips and hotels were booked through Ontario agents.)
Issue: (1) Should the cases be heard in Ontario? (2) When should Ontario courts assume jurisdiction over out-ofprovince defendants?
Held: (1) Yes for both. (2) See ratio.
New Test for Determining Jurisdiction:
1. Does the case fall within one of the connections specified in Rule 17.02 that engages a presumption of RSC? If
so, the defendant bears the burden of showing that a RSC does not exist.
2. Did the parties establish a real and substantial connection?*
a. What is the connection between the forum and the PL’s claim?
b. What is the connection between the forum and the DF?
c. Would it be unfair to make the DF defend the action in ON?
d. (If relevant,) what is the involvement of other parties to the suit?
e. Would ON be willing to recognize and enforce and extra-provincial judgement rendered on the same
jurisdictional basis as is being asserted here?
f. Consider the principles of comity, order and fairness, in relation to the inter-provincial or international
nature of the suit.
3. Should the case be moved on the basis of forum non conveniens?
4. Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to
assume jurisdiction.
* The considerations under step 2 are not independent factors with equal weight, but general legal principles that bear
upon the analysis. E.g., fairness is not a free-standing factor capable of trumping a weak connection.


a.
b.
c.
d.
The former test came from Muscutt; it is reformulated in this judgment.
Connections under Rule 17.02, with the exception of (h) and (o), shall now give rise to a presumption of RSC.
o
This change is necessary to bring Ontario law into line with the model Court Jurisdiction and Proceedings
Transfer Act (CJPTA) developed by the Uniform Law Conference of Canada.
o
The jurisprudence under Muscutt supports drawing such a presumption.
o
Quebec has something similar in Spar (i.e., the criteria in 3148 give rise to a presumption of RSC.)
o
This change will make proceedings on jurisdiction simpler and cheaper.
It is important to maintain a clear distinction between RSC and forum non conveniens. The factors considered
to determine FNC have no bearing on the determination of RSC.
Where a defendant could reasonably foresee that its conduct would cause harm within the forum by putting a product
into the normal channels of trade – and knows, or ought to know, that the product would be used in the forum –
jurisdiction may be assumed. However, the mere fact that it was foreseeable that a visiting plaintiff will return home
and continue to suffer damages from the injury does not, by itself, make the defendant subject to the plaintiff’s home
jurisdiction under Moran.
“Order and fairness” and “reasonable and substantial connection” are correlative and inextricably related.
The court rejects the notion from Beals that applying the RSC test to the recognition of foreign judgments would
obliterate the distinction between interprovincial and international cases. The SCC stated in Teck Cominco, “A
distinction should be made between situations that involve a uniform and shared approach to the exercise of
jurisdiction (e.g. inter-provincial conflicts) and those, such as the present [involving foreign parties], that do not.
II. CHOICE OF FORUM CLAUSES



Art. 3148, final paragraph: “However, a Québec authority has no jurisdiction where the parties, by agreement, have
chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a
foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.”
Should such clauses be respected in adhesion contracts where there is massive unequal bargaining power? What
about consumer settings? (Carnival Cruise Lines v. Shute)
What does this say about autonomy of the will? Why respect the choice of forum clause?
o
Bastarache J. in Pompey: We should respect choice of forum clauses to ensure commercial certainty and
autonomy of the parties.
o
GreCon: A choice of forum clause applies even for an incidental action (3148 CCQ trumps 3139 CCQ).
65
Carnival Cruise Lines v. Shute, USSC, CML, 1991
Cruise tickets included a clause that said all matters were to be dealt with before Florida courts. The tickets
were purchased through a travel agent in WA state and sent to PLs in that state. PL slipped and fell on the
boat in international waters and wants to sue in Washington.
Issues Should the forum-selection clause be invalid?
Held
No. PLs still have right to litigate; no bad faith by DF (i.e. D is not trying to avoid liability via the clause.)
Ratio
Blackmun J.

The argument is based on the fact that the choice of forum clause was not bargained for.

In Breman, 2 corporations had choice of forum clauses and court said, absent fraud, undue influence, or
overweening bargaining power, the clause must be given full effect.

The crucial difference between this and a business context is here, no negotiation was expected or occurred.
But we can’t make a general statement that non-negotiated forum-selection clauses are never enforceable

From a policy standpoint, cruise ships need to limit the forums in which they can be sued in light of fact that
they pass through many jurisdictions.

The Court rejects the idea PL is physically and financially incapable of pursuing in FL.

There was no bad-faith – no evidence that setting the forum was to discourage the pursuit of legit claims.

As there is no attempt by the petitioner to avoid liability, the forum-selection clause must stand. The
purpose of the relevant law is not to avoid having PLs travel to a distant forum.
Stevens and Marshall JJ. (dissent)

This is an attempt to weaken the right of PL to recover.

We shouldn’t be enforcing these clauses where there are such huge inequalities in bargaining power
Notes
It is totally legitimate for CCL to have one forum in which to handle their cases.
Facts
Facts
Issues
Held
Ratio
Notes
Facts
Issues
Held
Ratio
Z.I. Pompey Industrie v. ECU-Line, SCC, 2003
A bill of lading signed in France stipulates that the port of loading is in France, port of discharge is in Seattle
and all disputes arising out of the bill of lading shall be settled before Belgian courts in Antwerp. The RPs made
clear that, were the delicate piece of technology transported by train, it would be damaged. It was shipped to
Montreal and then transported by train to Seattle.
What is the appropriate test for stay of proceedings on basis of choice of forum clause?
The test is the “strong cause” test: The onus is on the PL. Here, onus is not met.
Bastarache J.

The Strong Cause test: PL must show a good reason why they shouldn’t be bound by the FS clause.

There is no reason to consider FS clauses to be non-responsibility clauses in disguise.

Quoting Jian Sheng (FCA), the court sets out the following test:
o
Where there is a choice of forum clause in bill of lading, the DF has the burden of persuading the
court that the conditions of the application of the clause have been met.
o
If so (i.e. if the clause applies) then the burden shifts to the PL to show sufficiently strong reasons
(or a “strong cause”) to support the conclusion that it would not be reasonable or just in the
circumstances to hold the PL to the terms of the contract.

There are strong policy considerations for keeping the “strong cause” test – the onus should be on the PL
who commences the suit contrary to the terms of a forum selection clause. We must protect FS clauses in
order to protect the autonomy of the will of both parties and commercial certainty.

Application to the facts: Yes, they are adhesion contracts – but both parties are sophisticated in maritime
law and aware of industry practices.

The suit is in federal court because it’s a maritime matter.

This seems fair, but it starts a philosophical trend that has been continued in Grecon and Dell.
GreCon Dimter Inc. c. J.R. Normand Inc., SCC, CVL, 2005
A contract between a sawmill equipment manufacturer in Germany, a middleman in QC, and a mill in QC
contains a choice of forum clause which sets the forum as Germany and the law as German. There were
delivery delays of 1.5 years and the intention was made to resiliate. The sawmill sues the middleman, who
sues the manufacturer.

Declinatory exception raised under art 83 CCP and 3148(2) CCQ (choice of forum clause)

Middleman (Normand) responded by invoking art 3139 CCQ – (principal action already before QSC and
so court had jurisdiction notwithstanding choice of forum clause.)
Does 3139 trump 3148(2)?
No. 3139 is subordinate to 3148 and therefore full effect is given to choice of forum clause.
3148(2) ousts Quebec’s authority where parties have chosen by agreement to submit to a foreign authority or
arbitrator. This decision rests on the importance of the autonomy of parties.
3148

The rules of private international law in Quebec are codified and must be interpreted as a coherent whole.

3148 attaches considerable importance to the principle of autonomy of the parties. The fact that parties
may by agreement oust QC’s jurisdiction attests to the legislature’s intention to recognize this autonomy

This aims at a broader principle of legal certainty in international transactions – i.e., stability and
foreseeability. The provisions are modelled on the Hague Convention on Choice of Court Agreements
66

Limitations on choice of forum clauses: Art 3151: certain actions are automatically subject to QC authority;
the wording of the clause must clearly and precisely specify the forum as mandatory.
3139

3139 calls for jurisdiction over incidental demands and cross-demands. It is an exception to principle that
jurisdiction in Quebec is established on a case-by-case basis.

But…3139 must be interpreted narrowly so as not to indirectly enlarge the international jurisdiction of the
Quebec authority contrary to the specific provisions.

There must be some convexity b/n the principle action and the incidental action.

3148 is a cornerstone principle  autonomy of the parties and legal certainty of international
transactions

Nothing suggests that 3139 was intended to be mandatory or intended to limit autonomy of the parties – it
is a permissive provision  the scope of 3139 is narrower than that of 3148.
3135 – suppletive

3135 only comes into play where Quebec court already has jurisdiction and then declines it. It is therefore
of secondary importance to other provisions discussed above.
Class

Grecon was involved by virtue of an incidental action. N.B. CCQ 3139: Where QC authority has
Notes
jurisdiction over the principal action it also has jurisdiction over the incidental action.

However, the SCC says that 3148 trumps 3139 and that there is a “hierarchy of rules”.

And the FNC couldn’t even be argued because the QC court didn’t have jurisdiction! This is a clear
indication of how strictly FS clauses are enforced and preference is given to 3148.
Enforcement of a Foreign Judgment: Stephen G.A. Pitel
THE PERSONAL NATURE OF THE RIGHT TO INVOKE THE JURISDICTION OF THE COURT AND
VEXATIOUS LITIGANTS
3 Issues to the personal right to go before the court:
1.
Do you have the legal capacity to sue or be sued?
o
You have to be a physical or legal person

Physical person: can’t be impaired by any mental incapacity. Minors, etc. can’t litigate on their
own behalf, so they have to get a litigation guardian (Ont. Rules 7) or a tutor/curator (Quebec).
In QC, Art. 61 CPC says no one required to be represented by a lawyer. This is n/a in Ontario.

Legal person: has to be represented by a lawyer (can’t self-rep, per Art. 61 CPC). If it’s an
officer of the corporation, you get them to represent you.
o
Ontario: Rule 21.01(3)(b): A motion to dismiss can be brought “If plaintiff/defendant does not have the
legal capacity to sue/be sued.”
2.
Have you raised a genuine legal dispute or a live controversy? You need a justiciable issue to go to court.
o
Should people have access to the courts to sue about anything? No. We circumscribe access to cases
that have concrete ramifications.
o
There is no such thing as a judicial reference in other countries, as in Canada. References are a privilege
of the state; there are no private references.
o
There are, however, declaratory judgments: these are not references, but relate to live issues that will
be in legal dispute in the future. A declaratory judgment is sought to allow a party to act and know the
legal consequences prior to their actions.
o
453 CCP: Any person who has an interest in the resolution of a genuine problem may take a declaratory
judgment if they want to know how to act in accordance with a contract, will, etc.

E.g. There is a patent, and you want to know if your invention will infringe the patent
o
You can’t take a moot case to court.

Public policy concerns about the scarcity of judicial resources

Separation of legislative and adjudicative roles (Canadian Council of Churches)

Sec. 17-23 provide examples of moot cases (ie. Contestation of parole when the person dies)

In Borowski, Sopinka holds that court can rule on moot cases if there are:

Collateral consequences: i.e., even if the issue is irrelevant, there are still consequences
from previous infringement (e.g. an ongoing adversarial issue)

Recurring precedents: i.e. if you know the issue will come back, it is worth deciding
the issue now (e.g., right to strike even when the strike has ended, right to abortion)

Matters of national importance or a social cost in leaving the matter undecided

But still, no “private references.”
3.
Do you have a personal interest in the case such as to merit legal standing?

55 CCP – A “personal Interest of pecuniary and/or psychological benefit” is necessary for standing. I.e., You
have to be personally affected to go to court.
67







4.
99 CCP – The Attorney General can be a party to any case.
492 CCP covers appeals
S. 316 Consumer Protection Act gives consumer advocacy groups standing for cases that affect consumers.
A special case is public interest standing. Why give someone standing as opposed to intervenor status?
o
The court is very concerned with busybodies (ie. vexatious litigants)
o
BUT access to the courts is important to avoid immunizing Parliament
o
Parliament used to be constrained from legislating; now we need public interest groups to allow
courts to perform a watchdog role
3-step test for public interest standing outlined by SCC in 1st Borowski.
o
Person must have a serious interest in the matter
o
Person must have a genuine interest as a citizen
o
There must be no other reasonable and effective manner that the issue can be brought to
court. [This is usually the key!]
Canadian Council of Churches: passes first two steps, but fails on step 3. Court holds that a refugee should
bring the case forward
Note 59(2): Where several people have a common interest but you don’t know who the others are, you can
represent them all (provided you have their mandate.)
Depriving a Person of Standing

Vexatious litigant vs. Vexatious action (vs. Sexatious action?)
o
“Vexatious litigant” is a status given to a person, by the Courts, who is constantly launching vexatious
actions. If you’re declared to be a vexatious litigant, the courts presume that you cannot take a case.
The onus of proving the usefulness of your claim is on you.

See ss. 7 (fundamental justice) and 11 (procedural rights) of the Canadian Charter and the
Quebec Charter – this might be inconsistent with right to open, independent, and impartial trial.
o
Vexatious action is merely an unfounded action, where a motion to dismiss may be made.
Facts
Issues
Held
Ratio
Ratio
Facts
Issues
Held
Borowski v. Canada (Attorney General), SCC, CML, 1989
Dude’s attacking s. 251 of the Criminal Code which allowed for limited access to therapeutic abortions. He
argues that all abortion should be illegal. Before this case made it to the SCC, Morgantaler was decided, which
struck down all prohibitions on abortion. This case raises issues of standing, justiciability, and mootness.
Is this case moot? Is it worth exercising judicial discretion to hear this case nonetheless?
The case is moot, and it is not worth using our discretion to hear it.
This is the quintessential example of mootness: asking the court to rule on a repealed law.
The General Doctrine of Mootness

The court can decline to hear something that is merely hypothetical or abstract, and/or if it will have
no effect on the rights of the parties.

The essential ingredient of the case must be present not only when the action is commenced but when
the court is going to give its decision.

Is there a tangible and concrete dispute, or has it disappeared? (This is the “live controversy test”)

E.g. A change in the law means it no longer applies to plaintiff (Beals)

In this case: None of the relief claimed is relevant any longer. Raising a constitutional question cannot
be the only basis for hearing before the court.
Exercise of Discretion

Sometimes, even in absence of live controversy there still remains a reason to go to court. There are 3
things courts must consider before exercising discretion in hearing the case.

(1) When there are collateral consequences (i.e. remaining liability, investment of interveners, etc).

(2) The case must be in the interest of judicial economy (i.e. it must be worth the cost to the court.)

(3) The court must demonstrate awareness of its adjudicative function – i.e. they must not become
legislators from the bench.
Application

Although it raises a question of public importance, it is not clear whether it is in the public interest to
decide on this. It is not up the court to make an abstract pronouncements on the rights of a foetus.
Canadian Council of Churches v. Canada, SCC, CML, 1992
CCoC claims that many of the amendments to the Immigration Act (1992) violated the Charter. The AG Canada
brought a motion to strike in part on the basis that the council did not have standing.
Does the CCoC have standing?
No.
68
Ratio
Definitions of standing in CML countries:

UK: an individual has standing in public law cases if (1) it is a question of an impugned right that
directly affects the individual, (2) if the individual has suffered special damaged, (3) or if it is a local
authority looking out for the rights of its citizens

US: (1) if the person has suffered actual or threatened injury, (2) if the injury can be fairly traced to
the challenged action, and (3) if the injury is likely to be redressed by a favourable decision. Even if all
three conditions are met, the court can still deny standing for PLs with abstract questions of wide
public significance.

Canada: (1) Is there are serious issue raised as to the invalidity of legislation? (2) PL needs to show
that either that she has been directly affected OR has a genuine interest as a citizen (3) AND that there
is no other reasonable and effective manner that the issue may be brought before the court.

Canada Post Charter: The Charter kind of changes everything because it required a generous and
liberal approach to standing. The Charter emphasized the fundamental right of the public to
government in accordance with the law. However, there is still a concern about the resources of the
court and the need to screen out busybodies.
Should the test be expanded? No – it is generous enough.
In this case:

The first two requirements are satisfied (the CCoC has shown there is a serious issue and is affected by
the fact that it helps so many refugees.)

However, it fails on step 3. There are other ways to resolve this, namely, a refugee could bring a claim
and they are more clearly directly affected than the CCoC.

CCoC raised concerns that refugees are in a position where it is difficult/impossible for them to bring
claims. The Court dismisses this argument by showing that refugees go to administrative tribunals all
the time. There is plenty of opportunity for the law to be challenged by better parties. The CCoC
should just be interveners.
Cap Rouge (Ville) v. Canada (Minister of Communications)
Not Google-able, therefore probably not important.
Facts
Issues
Dispositions
Ratio
Reasoning
Class Notes
Alliance for Marriage and Family v. A.A., CML, SCC, 2007
Two lesbians succeeded at the OCA in getting themselves both recognized as parents of a child,
along with the father (thus permitting three parents). The Crown did not appeal the judgment.
Alliance for Marriage and Family (ugly-ass traditional marriage proponents) attempted to gain
standing in the case, to which the parties objected.
Can the group gain public interest standing?
No. Instead they get deported to Utah.
To grant status in litigation where no party has an interest in appealing would allow the group to
retry the case.
“What the applicant is attempting to do is to substitute itself for the Attorney General in order to
bring important legal questions relating to the development and application of the law before this
Court. As we have seen, neither the Attorney General nor the immediate parties intend, for reasons
of their own, to contest the Court of Appeal’s judgment. This Court has never allowed a private
applicant under Rule 18(5) to revive litigation in which it had no personal interest. None of
the precedents relied upon by the applicant involved the substitution or addition of a party that did
not have a specific personal interest in the outcome of the litigation. In addition, the applicant does
not explain in its application how it meets the test for public interest standing from Canadian Council
of Churches. It merely states that the judgment will be otherwise “unappealable”.
Jukier: The one reasonable basis for public standing is #3: no other recourse by which the case
would come before the court. Both parties with an interest are happy here. LeBel copped out and
should have applied the test and showed how the group could not get public interest standing.
Ontario Rules, Rules 7-9: Parties Under Disability; Partnerships; Estates and Trusts
REPRESENTATION BY LITIGATION GUARDIAN
7.01 (1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or
defended on behalf of a party under disability by a litigation guardian.
(2) Despite subrule (1), an application under the Substitute Decisions Act, 1992 may be commenced, continued and
defended without the appointment of a litigation guardian for the respondent in respect of whom the application is
made, unless the court orders otherwise.
(3) A committee named by order or statute before April 3, 1995 is the litigation guardian of the person in respect of
whom the committee was named, and shall be referred to as the litigation guardian for all purposes.
(4) Subrule (3) also applies to the Public Guardian and Trustee acting under an order made under subsection 72 (1) or
(2) of the Mental Health Act as it read before April 3, 1995.
LITIGATION GUARDIAN FOR PLAINTIFF OR APPLICANT
7.02 (1) Any person who is not under disability may act, without being appointed by the court, as litigation guardian for
a plaintiff or applicant who is under disability, subject to subrule (1.1).
[Mentally Incapable Person or Absentee] (1.1) Unless the court orders otherwise, where a plaintiff or applicant,
69
(a) is mentally incapable and has a guardian with authority to act as litigation guardian in the proceeding, the
guardian shall act as litigation guardian;
(b) is mentally incapable and does not have a guardian with authority to act as litigation guardian in the
proceeding, but has an attorney under a power of attorney with that authority, the attorney shall act as
litigation guardian;
(c) is an absentee and a committee of his or her estate has been appointed under the Absentees Act, the
committee shall act as litigation guardian;
(d) is a person in respect of whom an order was made under subsection 72 (1) or (2) of the Mental Health Act
as it read before April 3, 1995, the Public Guardian and Trustee shall act as litigation guardian.
[Affidavit to be Filed] (2) No person except the Children’s Lawyer or the Public Guardian and Trustee shall act as
litigation guardian for a plaintiff/applicant who is under disability until the person files an affidavit in which the person,
(a) consents to act as litigation guardian in the proceeding;
(b) confirms that he or she has given written authority to a named lawyer to act in the proceeding;
(c) provides evidence concerning the nature and extent of the disability;
(d) in the case of a minor, states the minor’s birth date;
(e) states whether he or she and the person under disability are ordinarily resident in Ontario;
(f) sets out his or her relationship, if any, to the person under disability;
(g) states that he or she has no interest in the proceeding adverse to that of the person under disability; and
(h) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded
against him or her or against the person under disability.
LITIGATION GUARDIAN FOR DEFENDANT OR RESPONDENT
[Generally must be Appointed by Court] 7.03 (1) No person shall act as a litigation guardian for a defendant or
respondent who is under disability until appointed by the court, except as provided in subrule (2), (2.1) or (3).
[Where Minor Interested in Estate or Trust] (2) Where a proceeding is against a minor in respect of the minor’s interest
in an estate or trust, the Children’s Lawyer shall act as the litigation guardian of the minor defendant or respondent,
unless the court orders otherwise.
[Mentally Incapable Person or Absentee] (2.1) Unless the court orders otherwise, where a proceeding is against,
(a) a mentally incapable person who has a guardian with authority to act as litigation guardian in the
proceeding, the guardian shall act as litigation guardian;
(b) a mentally incapable person who does not have a guardian with authority to act as litigation guardian in the
proceeding but has an attorney under a power of attorney with that authority, the attorney shall act as litigation
guardian;
(c) an absentee, and a committee of his or her estate has been appointed under the Absentees Act, the
committee shall act as litigation guardian;
(d) a person in respect of whom an order has been made under subsection 72 (1) or (2) of the Mental Health
Act as it read before April 3, 1995, the Public Guardian and Trustee shall act as litigation guardian.
[Affidavit by Guardian or Attorney] (2.2) A person who has authority under subrule (2.1) to act as litigation guardian
shall, before acting in that capacity in a proceeding, file an affidavit containing the information referred to in subrule 10.
[Defending Counterclaim] (3) A litigation guardian for a plaintiff may defend a counterclaim without being appointed by
the court.
[Motion by Person Seeking to be Litigation Guardian] (4) A person who seeks to be the litigation guardian of a
defendant or respondent under disability shall move to be appointed by the court before acting as litigation guardian.
[Motion by Plaintiff or Applicant to Appoint Litigation Guardian] (5) Where a defendant or respondent under disability
has been served with an originating process and no motion has been made under subrule (4) for the appointment of a
litigation guardian, a plaintiff or applicant, before taking any further step in the proceeding, shall move for an order
appointing a litigation guardian for the party under disability.
(6) At least ten days before moving for the appointment of a litigation guardian, a plaintiff or applicant shall serve a
request for appointment of litigation guardian (Form 7A) on the party under disability personally or by an alternative to
personal service under rule 16.03.
(7) The request may be served on the party under disability with the originating process.
(8) A motion for the appointment of a litigation guardian may be made without notice to the party under disability.
(9) A plaintiff or applicant who moves to appoint the Children’s Lawyer or the Public Guardian and Trustee as the
litigation guardian shall serve the notice of motion and the material required by subrule (10) on the Children’s Lawyer or
the Public Guardian and Trustee. R.R.O. 1990, Reg. 194, r. 7.03 (9); O. Reg. 69/95, ss. 19, 20.
[Evidence on Motion to Appoint] (10) A person who moves for the appointment of a litigation guardian shall provide
evidence on the motion concerning,
(a) the nature of the proceeding;
(b) the date on which the cause of action arose and the date on which the proceeding was commenced;
(c) service on the party under disability of the originating process and the request for appointment of litigation
guardian;
(d) the nature and extent of the disability;
(e) in the case of a minor, the minor’s birth date;
(f) whether the person under disability ordinarily resides in Ontario and,
except where the proposed litigation guardian is the Children’s Lawyer or the Public Guardian and Trustee,
evidence,
(g) concerning the relationship, if any, of the proposed litigation guardian to the party under disability;
(h) whether the proposed litigation guardian ordinarily resides in Ontario;
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(i) that the proposed litigation guardian,
(i) consents to act as litigation guardian in the proceeding,
(ii) is a proper person to be appointed,
(iii) has no interest in the proceeding adverse to that of the party under disability, and
(iv) acknowledges having been informed that s/he may incur costs not recoverable from another party.
REPRESENTATION OF PERSONS UNDER DISABILITY
[Litigation guardian for party] 7.04 (1) Unless there is some other proper person willing and able to act as litigation
guardian for a party under disability, the court shall appoint,
(a) the Children’s Lawyer, if the party is a minor;
(b) the Public Guardian and Trustee, if the party is mentally incapable within the meaning of section 6 or 45 of
the Substitute Decisions Act, 1992 in respect of an issue in the proceeding and there is no guardian or attorney
under a power of attorney with authority to act as litigation guardian;
(c) either of them, if clauses (a) and (b) both apply to the party.
[Legal representative for minor who is not a party] (2) Where, in the opinion of the court, the interests of a minor who
is not a party require separate representation in a proceeding, the court may request and may by order authorize the
Children’s Lawyer, or some other proper person who is willing and able to act, to act as the person’s legal represent’ve.
[Litigation guardian for incapable person who is not a party] (3) Where, in the opinion of the court, the interests of a
mentally incapable person who is not a minor and not a party require separate representation in a proceeding, the court
may appoint as the mentally incapable person’s litigation guardian the Public Guardian and Trustee or some other
proper person who is willing and able to act.
POWERS AND DUTIES OF LITIGATION GUARDIAN
7.05 (1) Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be
done by the party’s litigation guardian.
(2) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps
necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim
or third party claim.
(3) A litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee shall be represented by a
lawyer and shall instruct the lawyer in the conduct of the proceeding.
REMOVAL OR SUBSTITUTION OF LITIGATION GUARDIAN
7.06 (1) Where, in the course of a proceeding,
(a) a minor for whom a litigation guardian has been acting reaches the age of majority, the minor or the
litigation guardian may, on filing an affidavit stating that the minor has reached the age of majority, obtain from
the registrar an order to continue (Form 7B) authorizing the minor to continue the proceeding without the
litigation guardian;
(b) a party under any other disability for whom a litigation guardian has been acting ceases to be under
disability, the party or the litigation guardian may move without notice for an order to continue the proceeding
without the litigation guardian,
and the order shall be served forthwith on every other party and on the litigation guardian.
(2) Where it appears to the court that a litigation guardian is not acting in the best interests of the party under
disability, the court may substitute the Children’s Lawyer, the Public Guardian and Trustee or any other person as
litigation guardian.
NOTING PARTY UNDER DISABILITY IN DEFAULT
7.07 (1) If a party to an action is under disability, they may be noted in default under R.19.01 only with a judge’s leave.
(2) Notice of a motion for leave under subrule (1) shall be served,
(a) on the litigation guardian of the party under disability; and
(b) on the Children’s Lawyer, unless,
(i) the Public Guardian and Trustee is the litigation guardian, or
(ii) a judge orders otherwise.
DISCONTINUANCE BY OR AGAINST PARTY UNDER DISABILITY
7.07.1 (1) If a party to an action is under a disability, the action may be discontinued by or against the party under
rule 23.01 only with leave of a judge.
(2) Notice of a motion for leave under subrule (1) shall be served,
(a) on the litigation guardian of the party under disability; and
(b) on the Children’s Lawyer, unless,
(i) the Public Guardian and Trustee is the litigation guardian, or
(ii) a judge orders otherwise.
APPROVAL OF SETTLEMENT
[Settlement Requires Judge’s Approval] 7.08 (1) No settlement of a claim made by or against a person under
disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without
the approval of a judge.
(2) Judgment may not be obtained on consent in favour of or against a party under disability without judge’s approval.
[Where no Proceeding Commenced] (3) Where an agreement for the settlement of a claim made by or against a
person under disability is reached before a proceeding is commenced in respect of the claim, approval of a judge shall
be obtained on an application.
[Material Required for Approval] (4) On a motion or application for the approval of a judge under this rule, there
shall be served and filed with the notice of motion or notice of application,
(a) an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed
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settlement and the position of the litigation guardian in respect of the settlement;
(b) an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the
proposed settlement;
(c) where the person under disability is a minor who is over the age of sixteen years, the minor’s consent in
writing, unless the judge orders otherwise; and
(d) a copy of the proposed minutes of settlement.
[Notice to Children’s Lawyer or Public Guardian and Trustee] (5) On a motion or application for the approval of a judge
under this rule, the judge may direct that the material referred to in subrule (4) be served on the Children’s Lawyer or
on the Public Guardian and Trustee as the litigation guardian of the party under disability and may direct the Children’s
Lawyer or the Public Guardian and Trustee, as the case may be, to make an oral or written report stating any objections
he or she has to the proposed settlement and making recommendations, with reasons, in connection with the proposed
settlement.
MONEY TO BE PAID INTO COURT
7.09 (1) Any money payable to a person under disability under an order or a settlement shall be paid into court, unless
a judge orders otherwise.
(2) Any money paid to the Children’s Lawyer on behalf of a person under disability shall be paid into court, unless a
judge orders otherwise.
RULE 8: PARTNERSHIPS AND SOLE PROPRIETORSHIPS
PARTNERSHIPS
8.01 (1) A proceeding by or against two or more persons as partners may be commenced using the firm name of the
partnership.
(2) Subrule (1) extends to a proceeding between partnerships having one or more partners in common.
DEFENCE
8.02 Where a proceeding is commenced against a partnership using the firm name, the partnership’s defence shall be
delivered in the firm name and no person who admits having been a partner at any material time may defend the
proceeding separately, except with leave of the court.
NOTICE TO ALLEGED PARTNER WHERE ENFORCEMENT SOUGHT AGAINST PARTNER
8.03 (1) In a proceeding against a partnership using the firm name, where a plaintiff or applicant seeks an order that
will be enforceable personally against a person as a partner, the plaintiff or applicant may serve the person with the
originating process, together with a notice to alleged partner (Form 8A) stating that the person was a partner at a
material time specified in the notice.
(2) A person served as provided in subrule (1) shall be deemed to have been a partner at the material time, unless the
person defends the proceeding separately denying that he or she was a partner at the material time.
PERSON DEFENDING SEPARATELY
8.04 A person becomes a party to a proceeding as a defendant or respondent, and the title of the proceeding shall be
amended accordingly, if the person defends a proceeding separately,
(a) denying having been a partner at the material time; or
(b) with leave of the court under rule 8.02.
DISCLOSURE OF PARTNERS
8.05 (1) Where a proceeding is commenced by or against a partnership using the firm name, any other party may
serve a notice requiring the partnership to disclose forthwith in writing the names and addresses of all the partners
constituting the partnership at a time specified in the notice and, where the present address of a partner is unknown,
the partnership shall disclose the last known address of that partner.
(2) Where a partnership fails to comply with a notice under subrule (1), its claim may be dismissed or the proceeding
stayed or its defence may be struck out.
(3) Where the name of a partner is disclosed pursuant to a notice under subrule (1) and the partner has not been
served as provided in rule 8.03, the partner may be so served within fifteen days after the name is disclosed.
ENFORCEMENT OF ORDER
[Against Partnership Property] 8.06 (1) An order against a partnership using the firm name may be enforced against
the property of the partnership.
[Against Person Served as Alleged Partner] (2) An order against a partnership using the firm name may also be
enforced, where the order or a subsequent order so provides, against any person who was served as provided in rule
8.03 and who, at the material time,
(a) under that rule, is deemed to have been a partner;
(b) has admitted having been a partner; or
(c) has been adjudged to have been a partner.
[Against Person not Served as Alleged Partner] (3) Where, after an order has been made against a partnership using
the firm name, the party obtaining it claims to be entitled to enforce it against any person alleged to be a partner other
than a person who was served as provided in rule 8.03, the party may move before a judge for leave to do so, and the
judge may grant leave if the liability of the person as a partner is not disputed or, if disputed, after the liability has been
determined in such manner as the judge directs.
SOLE PROPRIETORSHIPS
8.07 (1) Where a person carries on business in a business name other than his or her own name, a proceeding may be
commenced by or against the person using the business name.
(2) Rules 8.01-8.06 apply, with necessary modifications, to a proceeding by or against a sole proprietor using a
business name, as though sole proprietor were a partner and the business name were the firm name of a partnership.
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RULE 9: ESTATES AND TRUSTS
PROCEEDINGS BY OR AGAINST EXECUTOR, ADMINISTRATOR OR TRUSTEE
9.01 (1) A proceeding may be brought by or against an executor, administrator or trustee as representing an estate or
trust and its beneficiaries without joining the beneficiaries as parties. R.R.O. 1990, Reg. 194, r. 9.01 (1).
[Exceptions] (2) Subrule (1) does not apply to a proceeding,
(a) to establish or contest the validity of a will;
(b) for the interpretation of a will;
(c) to remove or replace an executor, administrator or trustee;
(d) against an executor, administrator or trustee for fraud or misconduct; or
(e) for the administration of an estate or the execution of a trust by the court.
[Executor, Administrator or Trustee Refusing to be Joined] (3) Where a proceeding is commenced by executors,
administrators or trustees, any executor, administrator or trustee who does not consent to be joined as a plaintiff or
applicant shall be made a defendant or respondent.
[Beneficiaries and Others Added by Order] (4) The court may order that any beneficiary, creditor or other interested
person be made a party to a proceeding by or against an executor, administrator or trustee.
PROCEEDING AGAINST ESTATE THAT HAS NO EXECUTOR OR ADMINISTRATOR
9.02 (1) Where it is sought to commence or continue a proceeding against the estate of a deceased person who has no
executor or administrator, the court on motion may appoint a litigation administrator to represent the estate for the
purposes of the proceeding.
(2) An order in a proceeding to which a litigation administrator is a party binds or benefits the estate of the deceased
person, but has no effect on the litigation administrator in a personal capacity, unless a judge orders otherwise.
REMEDIAL PROVISIONS
[Proceeding Commenced before Probate or Administration] 9.03 (1) Where a proceeding is commenced by or against a
person as executor or administrator before a grant of probate or administration has been made and the person
subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly
constituted from its commencement.
[Proceeding Brought by or against Estate] (2) A proceeding commenced by or against the estate of a deceased person,
(a) by naming “the estate of A.B., deceased”, “the personal representative of A.B., deceased” or any similar
designation; or
(b) in which the wrong person is named as the personal representative,
shall not be treated as a nullity, but the court may order that the proceeding be continued by or against the proper
executor or administrator of the deceased or against a litigation administrator appointed for the purpose of the
proceeding, and the title of the proceeding shall be amended accordingly.
[Proceeding Commenced in the Name of or Against a Deceased Person] (3) A proceeding commenced in the name of or
against a person who has died before its commencement shall not be treated as a nullity, but the court may order that
the proceeding be continued by or against the executor or administrator or a litigation administrator appointed for the
purpose of the proceeding and the title of the proceeding shall be amended accordingly.
[Where There is an Executor or Administrator and a Litigation Administrator has been Appointed] (4) Where it appears
that a deceased person for whom a litigation administrator has been appointed had an executor or administrator at the
time of the appointment, the proceeding shall not be treated as a nullity, but the court may order that the proceeding
be continued against the executor or administrator and the title of the proceeding shall be amended accordingly.
(5) A proceeding by or against a deceased person or an estate shall not be treated as a nullity because it
was not properly constituted, but the court may order that the proceeding be reconstituted by analogy to the
provisions of this rule.
[Stay of Proceeding until Properly Constituted] (6) No further step in a proceeding referred to in subrule (2), (3),
(4) or (5) shall be taken until it is properly constituted and, unless it is properly constituted within a reasonable time,
the court may dismiss the proceeding or make such other order as is just.
[Terms May be Imposed] (7) On making an order under this rule, the court may impose such terms as are just,
including a term that an executor or an administrator shall not be personally liable in respect of any part of the estate of
a deceased person that the executor or administrator has distributed or otherwise dealt with in good faith while not
aware that a proceeding had been commenced against the deceased person or the estate.
CCP, Arts. 55-60: Actions, Parties to Actions and Attorneys
55. Whoever brings an action at law, whether for the enforcement of a right which is not recognized or is jeopardized
or denied, or otherwise to obtain a pronouncement upon the existence of a legal situation, must have a sufficient
interest therein.
56. A person must be able to fully exercise his rights to be a party to an action in whatever form it may be, saving
contrary provisions of law.
A person who is not able to fully exercise his rights must be represented, assisted or authorized, in the manner provided
by the laws which govern his status and capacity or by this Code.
The irregularity resulting from failure to be represented, assisted or authorized has no effect unless it is not remedied,
and this may be done retroactively at any stage of a case, even in appeal.
57. Any person or corporation domiciled outside Québec, who is authorized by the law of his domicile to appear in
judicial proceedings, may do so before the courts of Québec.
58. Any person who, under the law of a foreign country, is empowered to represent a person who died or made his will
there and left property in Québec, may be a party in that capacity to proceedings before any court of Québec.
59. A person cannot use the name of another to plead, except the State through authorized representatives.
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Nevertheless, when several persons have a common interest in a dispute, any one of them may appear in judicial
proceedings on behalf of them all, if he holds their mandate. The power of attorney must be filed in the office of the
court with the first pleading; thereafter the mandate cannot be revoked except with leave of the court and is not
affected by the death or change of status of the mandators. In such case, the mandators are jointly and severally liable
with their mandatary for the costs.
Tutors, curators and others representing persons who are not able to fully exercise their rights, plead in their own name
in their respective capacities. This also applies to an administrator of the property of others in respect of anything
connected with his administration and to a mandatary in the performance of a mandate given by a person of full age in
anticipation of his incapacity to take care of himself or administer his property.
60. Where all or some of the directors of an association within the meaning of the Civil Code are party to legal
proceedings in their capacity as directors, they may do so under their own name or under the name which the
association has given itself or the name by which it is known. However, an association of employees must, to institute
legal proceedings, deposit at the office of the court, with the proceeding introductive of suit, a certificate of the
Commission des relations du travail under the Labour Code (chapter C-27) attesting that it is an association of
employees within the meaning of the Labour Code.
Facts
Issues
Dispositions
Ratio
Class Notes
Vexatious Litigants : Productions Pixcam Inc. V. Fabrikant
Fabrikant was declared a vexatious litigant, following which, Pixcam sought to have his claim
dismissed.
Should Fabrikant retain his standing? What is the test?
The burden is on the vexatious litigant to show that his claim is valid. Fabrikant fails.

“[34] Once a litigant has been declared vexatious, the allegations of any new proceedings that
he/she is making and for which an authorization must be sought cannot be presumed not to be
vexatious. Therefore, such an applicant has the burden to establish prima facie the seriousness
of the claim for which he/she is seeking authorization.”

“Mr. Fabrikant did not discharge the burden incumbent on him to establish prima facie that his
new claim was no more than another example of his predisposition to abuse the legal system.”

“[36] In other words, the proposed statement of claim did not refute the presumption that Mr.
Fabrikant was trying, once more, to abuse the legal system. On the contrary, para. 4 of his draft
statement of claim shows that he still denies that he committed the most serious offence,

murder; (...) Mr. Fabrikant had not shown a serious cause of action against Pixcom and Astral in
his application for authorization.»
The court relies on CCP 2, 20, 46 & 501.
PRESERVATION OF RIGHTS: PROVISIONAL AND PROTECTIVE MEASURES
Pending Litigation, you want to...

Protect or preserve substantive rights pending the judgment on the merits

Protect ability to execute the ultimate judgment

Protect evidence you will need to make your case
Procedural Translations:
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Interlocutory Injunctions
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Mareva Injunction: Conservatory freezing. You apply to freeze assets, to keep them from being them from being
moved offshore (which is the best way for the defendant to become judgment proof).

Anton Pillar Order: New measure to address the increasing relevance of electronic evidence, to stop the defendant
from destroying files, discs, USB keys, hard drives, etc.
Some common features

They all seek similar objectives:
o
To render the judgment useful
o
To preserve the plaintiffs rights pending litigation
o
If the provisional measure is granted, the plaintiff might still lose the case at trial. Generally speaking, the
proof to achieve an order is not very high.

We don’t want any of them to turn into a pre-trial within a trial. Usually the proof needed at the order stage is the
appearance of a right, or a prima facie right.

Extra risk is involved when a proceeding is ex parte (i.e. where the defendant is not present.) This happens in urgent
situations.
ALI/Unidroit Principle 8: Provisional and Protective Measures
8.1 The court may grant provisional relief when necessary to preserve the ability to grant effective relief by final
judgment or to maintain or otherwise regulate the status quo.
Provisional measures are governed by the principle of proportionality.
8.2 A court may order provisional relief without notice only upon urgent necessity and preponderance of considerations
of fairness. The applicant must fully disclose facts and legal issues of which the court properly should be aware. A
person against whom ex parte relief is directed must have the opportunity at the earliest practicable time to respond
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concerning the appropriateness of the relief.
8.3 An applicant for provisional relief should ordinarily be liable for compensation of a person against whom the relief
is issued if the court thereafter determines that the relief should not have been granted. In appropriate circumstances,
the court must require the applicant for provisional relief to post a bond or formally to assume a duty of compensation.
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Interlocutory Injunction
All injunctions are dubbed extraordinary measures, i.e., they are supposed to be applied restrictively. Despite this,
interlocutory injunctions are one of the most common features of litigation in all areas of law.
In QC, injunctions are equitable remedies imported from common law, and defined in art. 751 CCP:
o
A general power of injunction lies with a superior court as part of their inherent jurisdiction (unless
statutorily delegated to another tribunal.)
The jurisprudence reveals a lot of confusion. E.g. In a case where a girl is discriminated against in joining a hockey
team, should the court order that the girl play (positive) or that the team stop discriminating (negative)?
o
The legal penalty for non-compliance is CONTEMPT OF COURT. This is bordering on criminal law.
Injunctions do not sanction past conduct – they constrain future behaviour.
Art. 753 CCP, Rule 40 ON Rules: Provisional injunctions are of limited duration.
Injunctions are a discretionary measure, not a right.
Specific performance is a remedy sought at trial upon judgment of the merits. An interlocutory injunction is an
interim remedy.
Traditional view= Three-Prong Test (RJR-Macdonald)
1. There is a serious question to be tried (N.B. not an assessment on the merits; not even a prima facie test)
2. Petitioner (usually the PL, but can be a DF) will suffer irreparable harm if injunction is refused
3. The balance of convenience between the parties is weighed



In CML, the source is jurisprudence. In CVL, the source is largely art. 752 CCP as well as jurisprudence.
This is a global test, not a three-step test. E.g., increased seriousness may balance decreased irreparable harm. This
speaks to the discretionary nature of these injunctions.
Criticism of the traditional test:
o
Groleau: The first part of the test (seriousness) is too low a threshold. We need a higher standard because right
now, once the injunction is achieved, the case is usually over. Practically, the question becomes moot.
o
Art. 760 CCP: Interlocutory injunctions stand unless the CA suspends the injunction on appeal.
CCP Arts. 751-761
[Definition] 751. An injunction is an order of the Superior Court or of a judge thereof, enjoining a person, his senior
officers, agents or employees, not to do or to cease doing, or, in cases which admit of it, to perform a particular act or
operation, under pain of all legal penalties.
752. In addition to an injunction, which he may demand by a motion to institute proceedings, with or without other
conclusions, a party may, at the commencement of or during a suit, obtain an interlocutory injunction.
An interlocutory injunction may be granted when the applicant appears to be entitled to it and it is
considered to be necessary in order to avoid serious or irreparable injury to him, or a factual or legal
situation of such a nature as to render the final judgment ineffectual.
752.1. Ex officio or on the motion of a party, the court may, in every case where it considers it appropriate, order the
parties to join issues in the principal action within an appointed time, and fix the date of the hearing.
753. The app. for interlocutory injunction is made to the court, by written motion, supported by an affidavit affirming
the truth of the facts alleged and served upon the opposite party, with a notice of the day when it will be presented. In
case of urgency, a judge may nevertheless grant it provisionally even before it has been served. Notwithstanding the
foregoing, in no case, except with the consent of the parties, may a provisional injunction exceed 10 days.
753.1. No application for an interlocutory injunction may be presented at the beginning of proceedings unless a motion
to institute proceedings has been filed in the office of the court.
If the application is granted, the motion to institute proceedings must be attached to the order and be served with it
unless the judge allows the motion not to be served. In the latter case, the applicant must file the motion at the office of
the court within five days of the order, with a copy for the defendant.
However, the application may be presented without a motion to institute proceedings if the latter could not be filed in
time. In such a case, if the application is granted, the order may be served without the motion to institute proceedings.
However, the motion must be served within the time determined by the judge.
754. The application for an interlocutory injunction is contested orally unless the court allows contest in writing.
754.1. The parties make their proof by means of affidavits sufficiently detailed to establish all the facts necessary to
support their pretensions. They must cause the affidavits and all the documents they intend to refer to at the proof and
hearing to be served on the opposite party as soon as possible before presentation of the application for an interlocutory
injunction. However, the applicant must cause his affidavits to be served at the same time as the application.
754.2. If on presentation of the app. for an interlocutory injunction the record is complete, the court hears the parties.
In addition to proof by affidavit, any party may present oral proof, if he so wishes.
If on presentation of the application for an interlocutory injunction the record is incomplete, the court fixes the date for
the proof and hearing and issues any order necessary to safeguard the rights of the parties for the time and on the
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conditions it determines.
754.3. The court may, at the hearing, prescribe any measure designed to accelerate the progress of the hearing and
limit the proof, if no prejudice results to a party.
755. Unless, for good reason, the court or the judge granting an interlocutory injunction decides otherwise, the
applicant must be ordered to give security, in a prescribed amount, to pay the costs and damages which may result
therefrom. The certificate of the clerk that the security has been given must be attached to the order before it is served.
A judge may at any time increase or reduce the amount of such security.
756. The order of interlocutory injunction must in all cases be served upon the opposite party, in the same manner as
a motion to institute proceedings, or in the manner prescribed by the court or the judge.
757. The court or a judge may suspend or renew an interlocutory injunction, for such time and on such conditions as is
determined.
758. An order of injunction can in no case be granted to restrain legal proceedings or the exercise of functions for a
legal person established in the public interest or for a private interest, except in the case provided for in 329 CCQ.
759. Any final judgment in which an injunction is pronounced must be served upon the opposite party.
760. An injunction pronounced in a final judgment remains in force notwithstanding appeal; an interlocutory
injunction remains in force notwithstanding a final judgment dissolving it, provided plaintiff has instituted
an appeal in 10 days.
However, a judge of the Court of Appeal may provisionally suspend an injunction.
761. Any person named or described in an order of injunction, who infringes or refuses to obey it, and any person not
described therein who knowingly contravenes it, is guilty of contempt of court and may be condemned to a fine not
exceeding $50,000, with or without imprisonment for a period up to one year, and without prejudice to the right to
recover damages. Such penalties may be repeatedly inflicted until the contravening party obeys the injunction.
The court may also order the destruction or removal of anything done in contravention of the injunction, if there is
reason to do so.
Ontario CJA 101, 102: Interlocutory Orders
Injunctions and receivers
101.(1) In the Superior Court, an interlocutory injunction or mandatory order may be granted or a receiver or receiver
and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or
convenient to do so.
(2) An order under subsection (1) may include such terms as are considered just.
Injunction in labour dispute
102.(1)In this section,
“labour dispute” means a dispute or difference concerning terms, tenure or conditions of employment or concerning the
association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or
conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and
employee.
(2) Subject to subsection (8), no injunction to restrain a person from an act in connection with a labour dispute shall be
granted without notice.
Steps before injunction proceeding
(3) In a motion or proceeding for an injunction to restrain a person from an act in connection with a labour dispute, the
court must be satisfied that reasonable efforts to obtain police assistance, protection and action to prevent or remove
any alleged danger of damage to property, injury to persons, obstruction of or interference with lawful entry or exit from
the premises in question or breach of the peace have been unsuccessful.
Evidence
(4) Subject to subsection (8), affidavit evidence in support of a motion for an injunction to restrain a person from an act
in connection with a labour dispute shall be confined to statements of facts within the knowledge of the deponent, but
any party may by notice to the party filing such affidavit, and payment of the proper attendance money, require the
attendance of the deponent to be cross-examined at the hearing.
Interim injunction
(5) An interim injunction to restrain a person from an act in connection with a labour dispute may be granted for a
period of not longer than four days.
Notice
(6) Subject to subsection (8), at least two days notice of a motion for an interim injunction to restrain a person from
any act in connection with a labour dispute shall be given to the responding party and to any other person affected
thereby but not named in the notice of motion.
(7) Notice required by subsection (6) to persons other than the responding party may be given,
(a) where such persons are members of a labour organization, by personal service on an officer or agent of the
labour organization; and
(b) where such persons are not members of a labour organization, by posting the notice in a conspicuous place
at the location of the activity sought to be restrained where it can be read by any persons affected,
and service and posting under this subsection shall be deemed to be sufficient notice to all such persons.
Interim injunction without notice
(8) Where notice as required by subsection (6) is not given, the court may grant an interim injunction where,
(a) the case is otherwise a proper one for the granting of an interim injunction;
(b) notice as required by subsection (6) could not be given because the delay necessary to do so would result in
irreparable damage or injury, a breach of the peace or an interruption in an essential public service;
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(c) reasonable notification, by telephone or otherwise, has been given to the persons to be affected or, where
any of such persons are members of a labour organization, to an officer of that labour organization or to the
person authorized under section 89 of the Labour Relations Act to accept service of process under that Act on
behalf of that labour organization or trade union, or where it is shown that such notice could not have been
given; and
(d) proof of all material facts for the purpose of clauses (a), (b) and (c) is established by oral evidence.
Misrepresentation as contempt of court
(9) The misrepresentation of any fact or the withholding of any qualifying relevant matter, directly or indirectly, in a
proceeding for an injunction under this section, constitutes a contempt of court.
Appeal
(10) An appeal from an order under this section lies to the Court of Appeal without leave.
Ontario Rule 40: Interlocutory Injunction or Mandatory Order
[How to get one] 40.01 An interlocutory injunction or mandatory order under section 101 or 102 of the Courts of
Justice Act may be obtained on motion to a judge by a party to a pending or intended proceeding.
WHERE MOTION MADE WITHOUT NOTICE
[Maximum Duration] 40.02 (1) An interlocutory injunction or mandatory order may be granted on motion without
notice for a period not exceeding ten days.
[Extension] (2) Where an interlocutory injunction or mandatory order is granted on a motion without notice, a motion
to extend the injunction or mandatory order may be made only on notice to every party affected by the order, unless
the judge is satisfied that because a party has been evading service or because there are other exceptional
circumstances, the injunction or mandatory order ought to be extended without notice to the party.
(3) An extension may be granted on a motion without notice for a further period not exceeding ten days.
[Labour Injunctions Excepted] (4) Subrules (1) to (3) do not apply to a motion for an injunction in a labour dispute
under section 102 of the Courts of Justice Act.
UNDERTAKING Re: DAMAGES
40.03 On a motion for an interlocutory injunction or mandatory order, the moving party shall, unless the court orders
otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that
the granting of the order has caused damage to the responding party for which the moving party ought to compensate
the responding party.
FACTUMS REQUIRED
40.04 (1) On a motion under rule 40.01, each party shall serve on every other party to the motion a factum consisting
of a concise argument stating the facts and law relied on by the party.
(2) The moving party’s factum shall be served at least four days before the hearing.
(3) The responding party’s factum shall be served at least two days before the hearing.
(4) Each party’s factum shall be filed, with proof of service, in the court office where the motion is to be heard, at least
two days before the hearing.
Facts
Issues
Held
Ratio
RJR –Macdonald Inc. c. Canada, SCC, 1994
The federal government passes the Tobacco Products Control Act, regulating advertising and health warnings of
tobacco products. RJR Macdonald argues that it violates 2(b) of the Charter, asks for a stay of application of the
act until the case is resolved, as well as 12 months any decision affirming the validity of the act.
Should RJR Macdonald be granted a stay while the case is decided?
No.
Courts will use a three-part test to determine whether a stay or interlocutory injunction will be granted.

The 3-part American Cyanamid test (adopted in Canada in Metropolitan Stores) should be applied to
applications for interlocutory/interim injunctions/stays in both private law and Charter cases.

First Stage: An applicant for relief must demonstrate a serious question to be tried
o
The applicant here essentially needs to show that their case is not frivolous or vexatious.

N.B. The standard is still very high for interim (as opposed to interlocutory) relief –
because then, there is a judgment on the merits upon which the court can rely which
generally denies the applicant the very right he is seeking to assert
o
Whether there is a serious question, the matter should be determined by the motions judge on the
basis of common sense and an extremely limited review of the case on the merits

The fact that an appellate court has granted leave to appeal the main action is an
important consideration for this case.
o
A motions court should only go beyond a preliminary investigation into the merits when the grant
or refusal of the interlocutory motion would amount to a final determination of the case
o
Note: The judge will generally have to go on to second and third steps of the test, unless the
action is obviously frivolous or vexatious.

Second Stage: The applicant is required to demonstrate that irreparable harm will result if the relief is
not granted
o
Must be a harm that cannot be remedied by the eventual decision on the merits in favour of
the applicant
o
“Irreparable” refers to the nature of the harm rather than its magnitude. E.g., harm that cannot be
quantified in monetary terms; or harm that cannot be cured because damages cannot be collected.
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
Third Stage: Assessment of the balance of inconvenience to the parties – which of the two parties will
suffer the greater harm from the grant/denial of an interlocutory injunction?
o
In constitutional cases, a consideration of the public interest must be taken into account when
assessing the inconvenience which it is alleged will be suffered by both parties
o
To see if the granting or the withholding of interlocutory relief would occasion greater
inconvenience, must also examine the nature of the relief sought and the harm the parties contend
they will suffer
Application to this case:
1. There is a serious issue, since the QCA stated there were serious constitutional issues with a total ban
on tobacco advertising, and leave to appeal has been granted by the SCC.
2. There is irreparable harm because RJR will have to spend a lot of money to change its packaging
(maybe only to have to change it back.) N.B. The expenditure of money is not normally an irreparable
harm. It is in this case because the action aims to strike down legislation as unconstitutional and the
government generally doesn’t pay damages to the successful party in these cases.
3. The losses to RJR are huge financial losses – but they are big companies able to bear the blow, and can
pass on some of it to their customers. The public interest (in public health awareness and decreasing
the incidence of smoking) strongly outweighs RJR’s private interest.
Class
Notes
(1) Serious Question: The serious question standard is much lower than the (prior) prima facie case
standard. Why? It’s difficult to decide complex factual and legal issues based on the limited evidence available
at this point and we don’t want to risk a tentative determination on the merits before full evidence is heard.
There are two exceptions to this standard, where a review of the merits will be necessary:
(i) The result of interlocutory injunction will in effect amount to a final determination of the action
(ii) There’s a question of constitutionality that is a question of law alone (not really relevant for us)
(2) Irreparable Harm: If the harm cannot be remedied by the ultimate judgment, it is “irreparable.”
3) Balance of Interests: Numerous factors taken into account. Public interest is important; you must take into
account harm that could be suffered by those other than the parties.


One problem with this case is that it is about a stay of proceedings, but the court says that they are
applying the same legal test as for interlocutory injunctions.
This is also a public law case, not a private law case – but it is still relevant.
Freezing Orders: Mareva Injunction
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A Mareva Injunction orders the freezing of DF’s assets, even if they’re in the hands of a third party (often, a bank).
They’re important in cases of fraud or more generally, when there is a fear that the defendant will dissipate assets or
transfer them out of the jurisdiction making enforceability of final judgment difficult.
Origin: Mareva (A 1975 Denning decision on maritime law). It comes to Canada in 1979 in a matrimonial dispute, but
was not firmly entrenched by the SCC until 1985.
Most often, Marevas are granted ex parte to prevent giving the DF the opportunity to pre-empt the order.
The injunction does not encompass the dispossession of the assets of the defendant; it’s merely an order
making it impossible for the owner of the assets to part with them or transfer them.
In some cases you may not only want to freeze an asset, but you might also want to order the DF to take care it
(E.g., why would a defendant with a “frozen” shopping mall fix the leaking roof?). If the asset is real immovable
property, a Mareva Inunction (or seizure before judgment in Quebec) is not what you want.
o
Art. 742 CCP - Order for sequestration
o
Rule 41;45 ON - Protective order
The Mareva is said to be more worrisome than the interlocutory injunction. Why?
o
Are you affecting somebody’s right of ownership? Not technically – it is an action in personam, not an action
in rem, i.e., it’s an order against the owner, not the thing owned. However, if it is an order against a person,
it affects all your property, no matter the jurisdiction, and is therefore more far-reaching than an action in
rem, which generally can only be executed on property within the court’s jurisdiction. (Hence, “the
worldwide Mareva injunction.”)
o
Does it infringe on the liberty of the defendant? Yes, but all injunctions do.
o
We never know who will win the case on the merits. A Mareva gives the party pre-judgment execution
rights. Further, courts have begun to quantify the amount of assets that they think the defendant might be
liable for (quantifying the pre-judgment execution!)
o
There is a huge risk to the PL’s: they may open themselves to damages for securing a Mareva Injunction that
was not necessary. Now, courts are beginning to ask for the plaintiff to provide security for those damages!
N.B. A Paulian action, in CVL, is a claim by a creditor against a third party to rescind any transfer of property made to
the third party by the debtor done to frustrate enforcement of the creditor's debt. Classic example is if, before a suit or a
freezing order is made, the defendant transfers his assets to his wife. This is fraud, and there are rules in the code that
allow the creditor to reverse this. This is distinct from the Mareva Injunction, which seeks to prevent this type of
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fraudulent transfer of assets before it happens. A Mareva is a pre-trial motion. A Paulian action asks a court to decide
on the merits whether a past transfer was fraudulent. Mareva Injunctions are ex parte, Paulian actions are not.
Test for Mareva Injunction

The test follows the three prongs of the test for interlocutory injunctions, but is much tougher in two ways:
o
The standard in (1) is not “serious question” but “strong arguable prima facie case”
o
The question in (2) looks not for “irreparable harm” but for a “real risk of disposal or dissipation of
assets that would render nugatory a judgment.”
o
In (2), the PL doesn’t have to prove bad faith or intention to defraud, but they do have to show some level of
objective evidence that the defendant will attempt to dissipate assets.
o
(3) is still the “balance of convenience between parties” question.

Tracy: PL must also show that the extent of the amount sought to be frozen bears some relation to their potential
damage award.
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Seizure Before Judgment (Quebec)
Art. 733 CCP: The plaintiff, with authorization, may seize before judgment the property of the defendant when there
is reason to fear that without this remedy the recovery of his debt may be put in jeopardy.
SBJ is similar to Mareva Injunctions in some ways:
o
Both ex parte
o
Same objectives
o
Both exceptional measures
However, seizure before judgment is an action in rem, and is thus limited to assets in Quebec. Therefore,
lawyers will often invoke a seizure before judgments when dealing with property in QC, but a Mareva Injunction if the
assets are outside QC.
Mareva Injunctions are available in QC, but they are not as popular.
Facts
Issues
Held
Ratio
Tracy v. Instaloans Financial Solutions Centres, BCCA, CML, 2007
Tracy was the representative plaintiff in a class action against “payday loan” companies for charging interest
that is contrary to the criminal code. While the class action was pending in B.C., Instaloans was sold to a
competitor in another jurisdiction. Tracy realized that even if they got judgment, it would be hard to get
anything and thus applied for a Mareva injunction. The company was nothing but a shell, so it also sought a
personal Mareva against the shareholders.
Should the Mareva injunction have been issued?
Yes, but not to the extent it was. The Mareva is not granted; the case is sent back to trial.

No court should permit a defendant to take action designed to ensure that subsequent orders of
the court are rendered less effective. We cannot allow DFs to make themselves judgment-proof.

Mareva injunctions developed to preserve the efficacy of judgments in today’s era of instant
communication and paperless cross-border transfers.

A Mareva is an extreme and extraordinary measure. It is an exception to the rule that security for a debt
will not be ordered before judgment.

Judges need to be cautious and prudent, since Mareva injunctions have certain attendant dangers:
o
They tie up a litigant’s assets indefinitely pending trial of an action which may not succeed, or
which may result in an award for far less than the caged assets
o
They could allow a plaintiff to force a settlement by freezing their opponent’s assets. A Mareva
injunction cannot be used as procedural blackmail.

In BC, the traditional test for the granting of an interlocutory injunction is:
o
Does the plaintiff have a strong prima facie case or a good arguable case?
o
Does the balance of convenience favour the granting of the injunction? (Irreparable harm is
considered under this prong.)

But the judge can’t allow himself to become a prisoner of this formula. The fundamental question in each
case is whether granting the injunction is just and equitable in all the circumstances of the case.

The extremity of the Mareva Injunction requires another step to be surpassed in order for an applicant
to obtain one: they need to show that there is a real risk of disposal or dissipation of assets so as to
render nugatory any judgment.

The applicant must also show that the extent of the amount sought to be frozen bears some relation
to their potential damage award.

In this case, there is obviously a serious question to be tried because it has been the subject of litigation in
other jurisdictions (Ontario, Alberta)

The balance of convenience was decided by the trial judge to favour granting of the injunction
o
This is a discretionary decision, and is owed deference unless a serious error made
o
The Appeals judge doesn’t seem entirely convinced that this case poses a serious risk for
dissipation of assets, but does not see fit to correct the trial judge on the injunction against the
companies. However, he overturns the injunction against the corporate officers.
o
The plaintiff has sought to freeze $39 million – this is more than her damage award will likely be,
so she should go back to trial court to determine the appropriate amount to freeze.

Must consider in this case the fact that it is a class action. PL has numerous advantages over DF; PL is
not exposed to costs and has not had to submit to an undertaking in exchange for the injunction.
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
Class
Notes
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Must consider the issue of time – a Mareva injunction should not be indefinite. The PL must promise
to expedite the trial and the time period for injunction should be specified.
The trend is to challenge not whether the Mareva should be granted, but the extent to which it is granted.
Everything’s at the discretion of the trial judge and unless there is an overriding and palpable error, it will
not be overturned (Housen)
Here, it was an error to order the injunction against individual shareholders because there was no
indication that they would move assets out of jurisdiction. (Judgment reversed.)
The judge considers the extent to which the Mareva is affected by the fact that this is a Class Action. The
fact that this is a class action, will play a role in the balancing of the conveniences / inconveniences.
This consideration may just be tossed in to help the court rule against the PL.
Is it valid to let the particular aspects of class action weigh in on the determination of an injunction?
Anton Piller Orders (APOs)
Origin: Anton Piller KG v. Manufacturing Processes Ltd. (U.K. C.A. 1976), an IP case dealing with potential
infringement of copyrighted designs.
An APO is a court order that compels a party to consent to a search of their premises and seizure of evidence without
prior warning. The purpose is to prevent the destruction of incriminating evidence.
APOs resemble a search warrant, and differentiate themselves from them based on a Draconian notion of free will.
(Either you consent to the search or you face contempt of court.)
Today, APOs are regularly obtained in civil litigation, often in employment contexts where an employer suspects an
employee of stealing proprietary information.
The ability to grant an Anton Piller order is based on the inherent jurisdiction of the court.

In Quebec, this is codified in arts. 2, 20, 46 CCP.

This was confirmed by QCCA in 2002 in Raymond Chabot (2002)
Note: APOs don’t exist in the U.S.
The Criteria for an Anton-Piller Order (see Celanese)

The test has the same skeleton as the test for an interlocutory injunction (RJR):
1. PL must show a strong prima facie case
2. Potential damage to the PL must be very serious
3. There must be convincing evidence that the DF has incriminating evidence in their possession
4. PL must show a real possibility that defendant will destroy such evidence before discovery
o
How can this be proven? In practice, PLs focus on the dishonest character of the defendant and the
easily disposable character of the evidence
Purpose and Effect of an Anton Piller Order

To preserve relevant evidence that might otherwise be destroyed or concealed by the defendant

Procedural safeguards in pre-trial process

Recall that in ON, parties must provide an affidavit of evidence – (re: all evidence relevant to litigation.) There would
be no point to the affidavit if the DF simply destroyed the evidence.

An APO “authorizes a private party to insist on entrance to the premises of its opponent to conduct a surprise search,
the purpose of which is to seize and preserve evidence to further its claim in a private dispute.” [Celanese para. 1]

APOs are mostly used to seize electronic evidence. Often, a computer expert accompanies those executing the order.

The seizure can be done in the defendant’s business premises, home, car, etc.
Dangers of an Anton Piller Order

It is granted ex parte (usually in judge’s chambers)

It is usually granted immediately after filing suit, but can even be sought before filing suit.

It is interlocutory (so justification on merits of the case is not made out)

It is granted in rushed circumstances (often before the action is served)

It approximates search and seizure in civil cases, which is not technically available. There’s no forcible entry, but
given that you’re in contempt if you don’t comply it’s a “distinction without a meaningful difference” (Celanese)
As
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a Result of the Dangers
It is an exceptional remedy, seen to be “at the extremity of court’s powers” (Anton Piller KG)
It is termed a draconian order (Celanese)
Vinod Chopra shows how hard it can be to meet the 4-step test in Celnaese.
Yet despite these restrictive characterizations, APOs are increasing, largely due to their usefulness with respect to
electronic evidence where documents are easily deleted, moved or destroyed
o
(Celanese): “Experience has shown that despite their draconian nature, there is a proper role for Anton Piller
orders to ensure that unscrupulous defendants are not able to circumvent the court’s processes by, on being
forewarned, making relevant evidence disappear. Their usefulness is especially important in the modern era
of heavy dependence on computer technology, where documents are easily deleted, moved or destroyed.”
Implementing Safeguards
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A court can appoint a supervising solicitor (who acts as officer of the court) who is independent of the plaintiff and
who is present at the search to ensure its integrity. The independent solicitor explains what is happening to
defendant and makes a record of what is seized.
The DF must be allowed some time to contact his lawyer (or obtain legal counsel if he does not have one.) RJ: The
longest she’s ever seen is 2hrs.
DF should be allowed to copy necessary information from devices (e.g. school work, bank statements, etc.)
Orders should be carefully drafted to specify what may be seized and when seizure may take place.
Abuses

Improper order in the first place

Proper order, but seizure of a confidential information (subject to a solicitor-client privilege)

Proper order, but abusive execution of order, particularly vis-à-vis children
Remedies for Abuse

Apply to the court to annul or vary the order

Have unlawfully seized material returned. (If done properly, the PL’s lawyer will not have accessed the materials yet,
since it remains with the bailiff for a while.)

Disqualify the lawyers involved (Celanese)

Award damages against the PL if they improperly took an APO. (N.B. The PL may have undertaken to pay such
damages.)
Protection of Evidence
CCP, Arts. 402(2), 404, 438
402. If, after defence filed, it appears from the record that a document relating to the issues between the parties is in
the possession of a third party, he may, upon summons authorized by the court, be ordered to give communication of it
to the parties, unless he shows cause why he should not do so.
The court may also, at any time after defence filed, order a party or a third person having in his possession any
real evidence relating to the issues between the parties to exhibit it, preserve it or submit it to an expert's
appraisal on such conditions, at such time and place and in such manner as it deems expedient.
402.1. Except with leave of the court, no expert witness may be heard unless his written report has been
communicated and filed in the record in accordance with the provisions of Sections I and II of Chapter I.1 of this Title.
However, in the case of a motion other than a motion to institute proceedings, a copy of the report must be served on
the parties at least 10 days before the date of the hearing, unless the court decides otherwise.
The filing in the record of the whole or abstracts only of the out of court testimony of an expert witness may stand in
lieu of his written report.
404. At any stage of the case, the parties may agree, or the court, if it sees fit to do so, may permit that a witness be
heard out of court, provided that all the parties are present or duly summoned.
Depositions must in that case be made by way of affidavits sufficiently detailed to establish all the facts necessary to
support the conclusions sought or be taken down by stenography or in handwriting before a person authorized to
administer oaths and be filed in the record to have the same force and effect as if they had been taken at the hearing.
Notwithstanding the foregoing, the court cannot maintain an application for the annulment of a marriage or a civil union
nor, where the defendant has filed a defence, an application for separation from bed and board or divorce or for the
dissolution of a civil union unless the evidence of the plaintiff has been given before the court.
438. Anyone who, expecting to be a party to a legal proceeding, has reason to fear that some evidence that he
will need may become lost or more difficult to present may, by motion, ask:
(a) that the witnesses whose absence or incapacity he fears be heard before the hearing;
(b) that anything movable or immovable, the condition of which may affect the outcome of the
expected legal proceeding, be examined by a person of his choice.
Ontario Rules 32, 36, 45: Inspection of Property, Taking Evidence, Interim Preservation of Property
RULE 32: INSPECTION OF PROPERTY
32.01 (1) The court may make an order for the inspection of real or personal property where it appears to be
necessary for the proper determination of an issue in a proceeding.
(2) For the purpose of the inspection, the court may,
(a) authorize entry on or into and the taking of temporary possession of any property in the
possession of a party or of a person not a party;
(b) permit the measuring, surveying or photographing of the property in question, or of any particular object or
operation on the property; and
(c) permit the taking of samples, the making of observations or the conducting of tests or experiments.
(3) The order shall specify the time, place and manner of the inspection and may impose such other terms, including
the payment of compensation, as are just.
(4) No order for inspection shall be made without notice to the person in possession of the property unless,
(a) service of notice, or the delay necessary to serve notice, might entail serious consequences to the moving
party; or
(b) the court dispenses with service of notice for any other sufficient reason.
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RULE 36: TAKING EVIDENCE BEFORE TRIAL
36.01 (1) In this rule, “party” includes a party to a pending or intended proceeding.
[By Consent or by Order] (2) A party who intends to introduce the evidence of a person at trial may, with leave of
the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having
the person’s testimony available to be tendered as evidence at the trial.
[Discretion of Court] (3) In exercising its discretion to order an examination under subrule (2), the court shall take
into account,
(a) the convenience of the person whom the party seeks to examine;
(b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or
sickness;
(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;
(d) the expense of bringing the person to the trial;
(e) whether the witness ought to give evidence in person at the trial; and
(f) any other relevant consideration.
[Expert Witness] (4) Before moving for leave to examine an expert witness under subrule (2), the moving party shall
serve on every other party the report of the expert witness referred to in subrule 53.03 (1) (calling expert witness at
trial) unless the court orders otherwise.
[Interim Costs, Pending or Intended Proceeding] (5) Where an order is made under subrule (2) for the
examination of a witness in respect of a matter that is or will be the subject of a pending or intended proceeding, the
court may, if it considers it appropriate to do so, order the moving party to pay to any other party, in advance of the
examination, any or all of the costs reasonably expected to arise for the other party from the examination and any
related cross-examination or re-examination.
36.02 (1) Subject to subrule (2), Rule 34 applies to the examination of a witness under rule 36.01, unless the court
orders otherwise, and, for the purpose, a reference in Rule 34 to a party includes a reference to a party to a pending or
intended proceeding.
(2) A witness examined under rule 36.01 may be examined, cross-examined and re-examined in the same manner as a
witness at trial.
EXAMINATIONS OUTSIDE ONTARIO
36.03 Where an order is made under rule 36.01 for the examination of a witness outside Ontario, the order shall, if the
moving party requests it, provide for the issuing of a commission and letter of request under subrules 34.07 (2) and (3)
for the taking of the evidence of the witness and, on consent of the parties, any other witness in the same jurisdiction,
and the order shall be in Form 34E.
USE AT TRIAL
36.04 (1) In subrules (2) to (7), where an action,
(a) is brought by or against a corporation, “party” includes an officer, director or employee of the corporation;
(b) is brought by or against a partnership or a sole proprietorship using the firm name, “party” includes each
person who was, or is alleged to have been, a partner or the sole proprietor, as the case may be;
(c) is brought by or against a party under disability, “party” includes the litigation guardian;
(d) is brought by or against an assignee, “party” includes the assignor;
(e) is brought by or against a trustee of the estate of a bankrupt, “party” includes the bankrupt;
(f) is brought or defended for the immediate benefit of a person who is not a party,
“party” includes the person for whose immediate benefit the action is brought or defended.
(2) At trial any party may use the transcript and videotape or other recording of an examination under rule 36.01 or
36.03 of a witness who is not a party as the evidence of the witness, unless the court orders otherwise on the ground
that the witness ought to give evidence at trial or for any other sufficient reason.
(3) A witness who is not a party and whose evidence has been taken under rule 36.01 or 36.03 shall not be called to
give evidence at the trial, except with leave of the trial judge.
(4) With leave of the trial judge or the consent of the parties, a party may use at trial the transcript and a videotape or
other recording of an examination under rule 36.01 of a witness who is a party as the evidence of the witness.
(5) In exercising its discretion under subrule (4), the court shall take into account,
(a) whether the party is unavailable to testify by reason of death, infirmity or sickness;
(b) whether the party ought to give evidence in person at the trial; and
(c) any other relevant consideration.
(6) Use of evidence taken under rule 36.01 or 36.03 is subject to any ruling by the trial judge respecting admissibility.
(7) The transcript and a videotape or other recording may be filed with the court at trial and need not be read or played
at trial unless a party or the trial judge requires it.
RULE 45: INTERIM PRESERVATION OF PROPERTY
45.01 (1) The court may make an interim order for the custody or preservation of any property in question in a
proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in
the possession of a party or of a person not a party.
(2) Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the
court may order its sale in such manner and on such terms as are just.
SPECIFIC FUND
45.02 Where the right of a party to a specific fund is in question, the court may order the fund to be paid into court or
otherwise secured on such terms as are just.
RECOVERY OF PERSONAL PROPERTY HELD AS SECURITY
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45.03 (1) Where in a proceeding a party from whom the recovery of personal property is claimed does not dispute the
title of the party making the claim, but claims the right to retain the property as security for a debt, the court may order
the party claiming recovery of the property to pay into court or otherwise give security for the debt and such further
sum, if any, for interest and costs as the court directs.
(2) The affidavit in support of a motion under subrule (1) shall disclose the name of every person asserting a claim to
possession of the property of whom the party claiming recovery has knowledge and every such person shall be served
with notice of the motion.
(3) On compliance with an order under subrule (1), the property shall be given to the party claiming recovery and the
money in court or the security shall await the outcome of the proceeding.
Protection of the Object of Litigation
CCP Arts. 733, 742: Seizure and Sequestration of property
733. The plaintiff may, with the authorization of a judge, seize before judgment the property of the defendant,
when there is reason to fear that without this remedy the recovery of his debt may be put in jeopardy.
742. The court may of its own motion, or on application, order the sequestration of property when it considers that the
protection of the rights of the parties so requires. Sequestration may be ordered by a trial judge when case is in
appeal.
Courts of Justice Act, Ontario, s. 101 and s. 104: Injunctions and Interim orders for recovery of personal
property
Interlocutory Orders: Injunctions and Receivers
101.(1)In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or
receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or
convenient to do so.
(2)An order under subsection (1) may include such terms as are considered just.
104.(1)In an action in which the recovery of possession of personal property is claimed and it is alleged that the
property,
(a) was unlawfully taken from the possession of the plaintiff; or
(b) is unlawfully detained by the defendant,
the court, on motion, may make an interim order for recovery of possession of the property.
[Damages] (2)A person who obtains possession of personal property by obtaining or setting aside an interim order
under subsection 1 is liable for any loss suffered by the person ultimately entitled to possession of the property.
Ontario Rules 41, 44, 45: Appointment of receiver, Interim recovery and preservation of personal property
RULE 41: APPOINTMENT OF RECEIVER
41.01 In rules 41.02 to 41.06, “receiver” means a receiver or receiver and manager.
[How to get one] 41.02 The appointment of a receiver under section 101 of the Courts of Justice Act may be
obtained on motion to a judge in a pending or intended proceeding.
[Form Requirements] 41.03 An order appointing a receiver shall,
(a) name the person appointed or refer that issue in accordance with Rule 54;
(b) specify the amount and terms of the security, if any, to be furnished by the receiver for the proper
performance of the receiver’s duties, or refer that issue in accordance with Rule 54;
(c) state whether the receiver is also appointed as manager and, if necessary, define the scope of the receiver’s
managerial powers; and
(d) contain such directions and impose such terms as are just. R.R.O. 1990, Reg. 194, r. 41.03.
41.04 An order appointing a receiver may refer the conduct of all or part of the receivership in accordance with Rule 54.
[Directions] 41.05 A receiver may obtain directions at any time on motion to a judge, unless there has been a
reference of the conduct of the receivership, in which case the motion shall be made to the referee.
41.06 A receiver may be discharged only by the order of a judge.
RULE 44: INTERIM RECOVERY OF PERSONAL PROPERTY
44.01 (1) An interim order under section 104 of the Courts of Justice Act for recovery of possession of personal
property may be obtained on motion by the plaintiff, supported by an affidavit setting out,
(a) a description of the property sufficient to make it readily identifiable;
(b) the value of the property;
(c) that the plaintiff is the owner or lawfully entitled to possession of the property;
(d) that the property was unlawfully taken from the possession of the plaintiff or is unlawfully detained by the
defendant; and
(e) the facts and circumstances giving rise to the unlawful taking or detention.
(2) The notice of motion shall be served on the defendant unless the court is satisfied that there is reason to believe
that the defendant may improperly attempt to prevent recovery of possession of the property or that, for any other
sufficient reason, the order should be made without notice. R.R.O. 1990, Reg. 194, r. 44.01 (2).
[Order to Contain Description and Value of Property] 44.02 An interim order for recovery of possession of
personal property shall contain a description of the property sufficient to make it readily identifiable and shall state the
value of the property.
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DISPOSITION OF MOTION
[Where Made on Notice] 44.03 (1) On a motion for an interim order for recovery of possession of personal property
made on notice to the defendant, the court may,
(a) order the plaintiff to pay into court as security twice the value of the property as stated in the order, or
such other amount as the court directs, or to give the appropriate sheriff security in such form and amount as
the court approves, and direct the sheriff to take the property from the defendant and give it to the plaintiff;
(b) order the defendant to pay into court as security twice the value of the property as stated in the order, or
such other amount as the court directs, or to give the plaintiff security in such form and amount as the court
approves, and direct that the property remain in the possession of the defendant; or
(c) make such other order as is just.
[Where Made Without Notice] (2) On a motion for an interim order for the recovery of possession of personal
property made without notice to the defendant, the court may,
(a) order the plaintiff to pay into court as security twice the value of the property as stated in the order, or such
other amount as the court directs, or to give the appropriate sheriff security in such form and amount as the
court approves, and direct the sheriff to take and detain the property for a period of ten days after service of
the interim order on the defendant before giving it to the plaintiff; or
(b) make such other order as is just.
[Condition and Form of Security] 44.04 (1) Where an interim order for the recovery of possession of personal
property requires either party to give security, the condition of the security shall be that the party providing the security
will return the property to the opposite party without delay when ordered to do so, and pay any damages and costs the
opposite party has sustained by reason of the interim order.
... (3) Where the bond is to be given by a person other than an insurer licensed under the Insurance Act to write surety
and fidelity insurance, the person giving the bond shall first be approved by the court.
[Setting Aside the Order] 44.05 The court on motion may set aside or vary an interim order for the recovery of
possession of personal property or stay enforcement of the order.
[Release of Security] 44.06 Any security furnished pursuant to an order made under rule 44.03 may be released on
the filing of the written consent of the parties or by order of the court.
[Duty of Sheriff] 44.07 (1) Before proceeding to enforce an interim order for the recovery of possession of personal
property, the sheriff shall ascertain that any security required by the order has been given.
(2) The sheriff shall serve the order on the defendant when the property or any part of it is recovered or as soon
thereafter as is possible.
(3) Where the sheriff is unable to comply with the order, or it is dangerous to do so, the sheriff may move for directions
from the court.
(4) The sheriff shall, without delay after attempting to enforce the order and in any event within ten days after service
of the order, report to the plaintiff on what property has been recovered and, where the sheriff has failed to recover
possession of all or part of the property, on what property has not been recovered and the reason for his or her failure
to recover it.
[WHERE DEFENDANT PREVENTS RECOVERY] 44.08 Where the sheriff reports that the defendant has prevented the
recovery of all or part of the property, the court may make an order,
(a) directing the sheriff to take any other personal property of the defendant, to the value of the property that the
sheriff was prevented from recovering, and give it to the plaintiff; and
(b) directing the plaintiff to hold the substituted property until the defendant surrenders to the plaintiff the property that
the sheriff was prevented from recovering.
RULE 45: INTERIM PRESERVATION OF PROPERTY
45.01 (1) The court may make an interim order for the custody or preservation of any property in question in a
proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in
the possession of a party or of a person not a party.
(2) Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the
court may order its sale in such manner and on such terms as are just.
[Specific Fund] 45.02 Where the right of a party to a specific fund is in question, the court may order the fund to be
paid into court or otherwise secured on such terms as are just.
[Recovery of Personal Property Held as Security] 45.03 (1) Where in a proceeding a party from whom the
recovery of personal property is claimed does not dispute the title of the party making the claim, but claims the right to
retain the property as security for a debt, the court may order the party claiming recovery of the property to pay into
court or otherwise give security for the debt and such further sum, if any, for interest and costs as the court directs.
(2) The affidavit in support of a motion under subrule (1) shall disclose the name of every person asserting a claim to
possession of the property of whom the party claiming recovery has knowledge and every such person shall be served
with notice of the motion.
(3) On compliance with an order under subrule (1), the property shall be given to the party claiming recovery and the
money in court or the security shall await the outcome of the proceeding.
Jurisprudence: APOs, Seizure Before Judgment, and Interim Preservation of Evidence and Property
Facts
Celanese Canada Inc v. Murray Demolition Co., SCC, CML, 2006
Celanese employed Murray Demolition (MD) to demolish its plant. MD allowed Canadian Bearings (CB) access
the demo site. CB here attempted to copy various proprietary processes and equipment. Celanese is now suing
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Canadian Bearings and others for stealing its tech.
Issues
Held
Ratio
Judge granted Celanese an ex parte Anton Piller order against CB and others. In the course of the search,
approx 1400 e-docs thought to be relevant but not yet screened for solicitor-client privilege were downloaded
by BDO (Celanese’s accounting firm). Cassels Brock (Celanese’s lawyer) then copied these and didn’t tell BLG
(Canadian Bearing’s lawyer). Turns out privileged communications were among these copied docs! BLG finds
out and sends a letter notifying Cassels Brock, but Cassels Brock doesn’t hand over these communications.
Instead, they say they’ve deleted them. Canadian Bearings brings motion to disqualify Cassels Brock from
continuing to represent Celanese.
The appeal is to determine the test for disqualification: Which parties bear the burden of showing the prejudice
arising from disclosure of solicitor and client privileged docs?
Celanese and its lawyers had an onus to rebut the presumption of a risk of prejudice. They failed.
Anton Piller Orders
o
Although once an exception, APOs are often issued now in ordinary civil disputes. Easier access leads
some to not appreciate “the very serious responsibility imposed by such a draconian order.” (para. 30)
o
The strength and weakness of APOs is that they are made ex parte and interlocutory (no supporting
affidavits, no cross-examination, etc.)
o
They’re usually obtained and implemented in time-sensitive circumstances of urgency. They’re time limited.
4 Essential Conditions for Anton Pillar Order:
1. Plaintiff must demonstrate a strong prima facie case
2. The damage to the PL in case of DF’s (potential or actual) misconduct must be very serious
3. Must be convincing evidence that DF has in its possession incriminating documents/things.
4. Must show a real possibility that the defendant may destroy such material before discovery process.
The following safeguards should be explicitly laid out in the APO itself to protect the parties’ basic rights:

A supervising lawyer who’s independent of the P ensures that the execution of the APO is “as careful
as possible and with due consideration for the rights and interests of all involved.”

Unless there are unusual circumstances, the plaintiff should pay damages if the order turns out to
be unwarranted or is badly executed.

The scope of order should be no wider than necessary, and no material should be removed from the
site unless it is clearly covered by order’s terms.

There should be a term in the APO that sets out the procedure for dealing with privileged docs so
that the DF can advance claims of confidentiality over docs before they come into plaintiff’s possession.

Criminal search warrants provide guidance here (see p.88 in coursepack)

APO should contain a limited use clause (i.e. items seized may only be used for purposes of
impending litigation.)

Order should state explicitly that DF is entitled to return to court on short notice to discharge order
or vary amount of security.

Order should provide for seized materials to be returned to defendants ASAP. (See p.88)
Proper conduct during the search:
1. Search should be commenced during normal business hours when the DF’s lawyer more likely to be
reachable for consultation.
2. Premises shouldn’t be searched and nothing should be removed without the DF or one of her
responsible employees present.
3. Persons conducting search should be specified in the order.
4. On site, PF’s counsel should serve copy of statement of claim and the order to defendant, and in
plain language explain the nature and effect of the order.
5. DF should be given reasonable time to consult with counsel prior to permitting entry into premises
6. A detailed list of all evidence seized should be provided by supervising solicitor to the DF for
inspection (and to verify she’s got everything back after seizure.)
7. If # 6 isn’t possible, docs should be placed in the custody of the supervising solicitor and the DF’s
counsel should be given reasonable opportunity to review them (for lawyer-client privilege) prior to
release of them to plaintiff.
8. If ownership of the material is disputed, it should be provided for safekeeping with DF’s lawyers or the
supervising lawyer. (p 89)
Procedure for after the search:

APO must clearly state that the responsibilities of supervising solicitor continue beyond search to matters
arising out of search.

The supervising solicitor is required to file a report with the court within a set time limit describing the
execution, who was present, and what was seized.

The Court may want to make the plaintiff file and serve a motion for review of the execution.

In this case, the draft order placed before motions judge was deficient. (There was no provision to deal
with solicitor-client privileges.)
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When should counsel before removed for possession of confidential information?
Per Macdonald Estate:
o
There’s a presumption that confidences will be used to prejudice of client unless receiving solicitors
can show that a reasonably informed person would be satisfied that no use of confidential info would occur.
o
Only clear and convincing contrary evidence rebuts this presumption (para 42).
o
There is no onus on the moving party to provide further evidence as to the nature of the confidential info
beyond what’s needed to establish that the receiving lawyer has privileged information.
o
In this case, CB has discharged its onus, and Court of Appeal erred in placing onus of proof on CB.
Appropriate Remedy:
o
If a remedy short of removing the searching solicitors will cure problem, it should be considered.
o
CBA gives 6 factors to use to decide whether a lawyer should be removed:
1. How privileged info came into Cassel Brock’s hands: Court says it was unintended but avoidable.
Inadequate precautions were taken.
2. What Cassels Brock did when they realized they had privileged docs: CB failed to have these docs
listed at search site, and then declined to return the material to BLG.
3. Extent of review made of the privileged material: CB deny any “substantial review” of privileged
documents. But at same time, they had classification names for them, so they must have looked at
them in some detail. Court can’t be sure.
4. Contents of the privileged communications and degree to which they are prejudicial: CB failed to
discharge their onus of identifying the extent to which they accessed privileged info while classifying
material. Now they have to shoulder the consequences.
5. Stage of litigation: Litigation is at an early stage, so removing counsel will not have the same
“extreme” or “devastating” effects it would have at a later date.
6. Potential effectiveness of a firewall or other precautionary steps: Any appropriate firewalls were not in
place prior to occurrence of the mischief.
Facts
Issues
Held
Ratio
Vinod Chopra Films Private Ltd. v. John Doe
This case is a judicial review of a rolling Anton Piller order. Rolling APOs are granted in situations where
the DFs are not known and as such the APO is issued against John Doe and Jane Doe. Vinod Chopra Films
(VCF) and Reliance Mediaworks (RM) were, respectively, the copyright owners and licensees of a film entitled
"3 Idiots." Upon execution of the ex parte Anton Piller order, unauthorized copies of the film were seized.
Some of the named DFs, small shopkeepers, sought a review. VCF and RM submitted that the potential or
actual damage was very serious as the Indian economy had suffered job losses and revenue losses as a result
of piracy and because piracy would lead to the loss of sales of video products. They also argues that there
was a real possibility that the DFs would destroy any incriminating evidence in their possession.
1. Have the PLs established that the damage, potential or actual, is very serious?
2. Have the PLs provided convincing evidence that the defendants have in their possession incriminating
documents or things?
3. Have the PLs established a real possibility that the DFs may destroy such material before discovery?
4. Have the PLs provided a proper basis for a "John Doe" proceeding?
5. Have the interests of justice been brought into disrepute?
APO set aside.

APOs began as an extraordinary remedy, to be used only when it was "essential" and there was "grave
danger" that the evidence might be destroyed such that the "ends of justice be defeated" and, from the
defendant's point of view, no real harm would be done.

In Canada, the principal jurisprudence for APOs comes from Celanese, where such orders were said to be
an "extraordinary remedy" to be used only when there is a "real possibility that relevant evidence will be
destroyed or otherwise made to disappear".

When reviewing an APO, such a review is conducted de novo and evidence in addition to that
considered by the Judge granting the original Order may be taken into consideration. (para 18).

Post-APO conduct of a DF may be introduced during a review of the APO but used with extreme
caution if it is to be used in support of an allegation made at the ex parte hearing that the DF would
have been likely to destroy relevant material.
Steps of Review
1. Conduct a review of the 4 requirements set out in Celanese.
a. Strong prima facie case?
b. Serious damage in the case of DF’s misconduct?
c. Convincing evidence that the DF has incriminating documents or things?
d. Real possibility that the DF may destroy such material before the discovery process?
2) Conduct a review of two additional criteria set out in Netbored Inc.
a. Would the inspection do harm to the DF?
b. Would the interests of justice be brought into disrepute?
3) In cases of rolling APOs, consider the following criteria set out in Club Monaco:
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4)




a.
The affidavits should contain the personal knowledge of the affiant as to the nature and
extent of the problem as it relates to the Plaintiff. (N.B. Counsel’s knowledge won’t do,
otherwise it could impact the independence of counsel.)
b.
Evidence, given in the form of general statements, of the plaintiff's understanding of the
effect of counterfeiting upon the value of their intellectual properties
c.
Other elements of the proof can and should be particularized, specifically the instances
of counterfeiting known to the PL which would justify the granting of an order. Generally, it
is not sufficient to say that the PL is aware of counterfeiting in a given city or region.
d.
In general, a number of instances of counterfeiting would be required to justify a "rolling"
order for the simple reason that a specific instance would only justify a specific order. If the
plaintiff wants an order to apply to unlimited future instances, it is incumbent upon them to
demonstrate that specific orders are not an appropriate remedy.
e.
Proof of a number of incidents of counterfeiting in a particular province would only justify an
order for that province. If a Canada-wide order is sought, there should be some proof that
the counterfeiting is not a local problem.
f.
Grounds upon which it is believed that counterfeiting is occurring should be clearly stated. A
simple assertion of the affiant’s beliefs is not sufficient.
g.
In cases where it is sought to renew an existing order, PL must demonstrate the use which
it has made of the order previously granted. An order that has not been enforced does not
need to be renewed. However, enforcement does not, of itself, justify renewal of the order.
h.
An assertion in an affidavit that the plaintiff agrees to be bound by an undertaking as to
damages is not an undertaking as to damages just as a promise to agree is not an
agreement. A separate undertaking as to damages, directed to the court, properly executed
by corporate officers who have the authority to do so should accompany the application.
Ask whether John Doe is appropriate:
a.
Using John Doe is permissible only in the case of misnomer. The traditional procedure
of suing John Doe as the unknown or unidentified person in a cause of action has long been
accepted… where the person is real and is alleged to be part of the incident or transaction
giving rise to the claim.
b.
The proper test to be applied in cases of determining whether or not there has been a
misnomer is to ask the question - would a reasonable person reading the document
understand that he is the person referred to therein but wrongly named or named
under a pseudonym? If so, it is a matter of misnomer and the court will permit
amendment of the pleadings in order to properly identify the party. If such is not the case,
the rule is that it is not a case of misnomer but simply an attempt to introduce a new party
by way of addition or substitution.
None of the evidence regarding actual or potential damage specifically related to Canada, the motion
picture "3 Idiots" or the defendants.
Only a handful of unauthorized copies of the film were seized and those copies sold at approximately one
or two dollars per copy. Therefore, the plaintiffs failed to establish that the damage would be serious.
While there was sufficient evidence that retail establishments were selling unauthorized copies of the
motion picture, no probative evidence was provided to establish that the defendants would be likely to
hide or destroy relevant items.
As a number of defendants were known before the APO was sought, the rolling order was inappropriate.
PLURALITY OF PARTIES
Permutations and Combinations of Plurality of Parties
Joinder of claims: One plaintiff vs. one defendant with multiple causes of action (Rule 5.01; Art. 66 CCP)

PL has many complaints against one person. Combine them into one lawsuit or file multiple suits?

Policy Issue: Is it more efficient to talk about a plurality of issues in the context of one case, where you know the
relationship between parties? Or, if the issues are really distinct, is it more efficient for things to be disjoined?
One plaintiff vs. multiple defendants (Rule 5.02(2); Art. 66 CCP)
Multiple plaintiffs vs. 1 defendant (not a class action) (Rule 5.02(1); Art. 67 CCP)
Counter claim and cross claim (Rule 27; Art. 172(2) CCP)
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
Forced



172(2) only allows counter claims, not cross claims. In QC, you have to implead your co-defendant as a third
party in order to cross claim.
Intervention of a Third Party (Rule 5.03, 29.01; Art. 216 CCP)
This is only undertaken DFs because only a defendant would want to bring in a third party.
The third party becomes a co-defendant.
You want to do this under two circumstances typically:
1. When you can pass on your liability to the plaintiff to another party (very common, e.g. GreCon, and
very important, since impleading the third party caused the case to go to Germany);
2. When you can share your liability with someone jointly or solidarily. (See Ala Mura)
Voluntary Intervention of a Third Party (Rule 13.01; Art. 208 CCP)

A party may want in on the suit if they have an interest in the conflict, and want to protect their rights (See Alta
Mura) or if they want to piggyback on a claim in order to protect their rights. Here, the issues are standing,
interest, moot-ness, etc.
Friend of the court/Amicus Curiae (Rule 13.02; Art. 211 CCP)

This is used with respect to constitutional questions of public concern.

Attorney generals have vast powers to walk into a case as an intervener.

At Appellate courts, and especially the SCC, interveners become very important.

Interveners are not parties to the case, so there are no issues of standing, moot-ness, etc.
One PL and one DF with multiple causes of action (Rule 5.01, art. 66)

All jurisdictions allow for multiple claims against the same DF.

ON Rule 5.01: a PL may, in the same proceeding, join any claims they have against an opposite party.

Open ended and broad range of arguments that the DF can bring

CCP 66: Several causes of action may be joined in the same suit provided that 4 criteria are met:

The recourses exercised must not be incompatible or contradictory

The causes of action must seek condemnations of a like nature

The joinder must not be expressly prohibited

The causes of action must be susceptible of the same mode of trial.

“In the alternative and without prejudice to the foregoing…” a party can take many separate actions but the
court can order them to be joined. Here is the push and pull between the courts and the parties.

Both ON and QC give the judge the power to join actions against the same DF.

ON Rule 6.01 & CCP 270/271: two or more actions can be brought by order of the court if it appears expedient

N.B. Art. 271 CCP is particularly broad.

Generally speaking, the party bringing the multiple actions does not need to justify the cumulative actions. If the
DF doesn’t make a motion to disjoin, the court will go along with it.

A DF facing several claims may make a motion for a disjoinder because the recourses are not compatible.
One PL and many DFs with the one cause of action (Rule 5.02 (2), art 66)

It’s very rare to have multiple DFs without multiple causes of action.

Rule 5.02 (2): Two or more persons may be joined as DF’s where there are claims of relief made from the same
transaction or occurrence; joint wrong; or there is a common question of law or fact that arises and doubt about
from whom the PL is entitled to relief.

Art 66 applies to both multiple DF’s and multiple issues (See the 4 elements above.)

In Federation of Jewish Schools, three claims were disjoined. It was not that the recourses were incompatible or
contradictory, but they did not seek condemnations of a like nature.

E.g. correcting minutes of union meeting is nowhere near nullifying contracts

This case also takes an expanded view of the final criterion in art. 66, relying on the fact that it
wouldn’t involve the same witnesses.
Many PLs and One DF (Rule 5.02 (1), art 67)

ON Rule 5.02 (1): Two or more PLs may join their claims because they assert they have a claim to relief out of
the same transaction

We go to Rule 5.05 for the reasons to take a motion to disjoin

Art 67 CCP: Two or more persons whose claims have the same juridical basis, etc., may join in the same suit.

Subject matter jurisdiction: Which level of court should you be in?

E.g. Suppose you are suing 7 people for 10K each – do you go to CQ or SC? Answer: CQ, if it has
jurisdiction for each of the individual claims. However, if some claims are 10K and some are 100K, then
you go to SC.

Art. 67(2) CCP: The court can disjoin the claims if the interests of justice it is better served separately.

This is all that people had before the class action was developed in QC in 1978 and later in CML provinces; at this
point you would have gotten a mandate (e.g. action by A in the name of others.) Now, however, there is class
action if you don’t know, e.g., all the people who invested with Earl Jones.

What if your part of the suit is smaller and it needs to be in simplified procedure?
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

ON Rule 5.05: one of the things that the judge can do is disjoin the claims. However, the judge can do
whatever is just as long as it makes juridical sense. E.g., the court can keep them together but assess
costs for those that should have received help regarding procedure.
In QC, costs don’t have the same policy applications, and we don’t have separate tracks.
Counter-claims (when PL sues DF, and DF counter claims against PL) and cross claims (when PL sues DF and DF sues X):
(Rule 27, art 172 (2))

Counter claims: A sues B; B says they did not do it AND that A is actually the wrongdoer to B.

Rule 27.01 & 172 para 2 CCP: A counter claim is raised in the defense

PL’s can say, “don’t piggy back on my case; sue me separately.” The court can order this in some cases.

Rule 27.08: (1) A counterclaim shall be tried at the trial of the main action, unless the court orders
otherwise. (2) Where it appears that a counterclaim may unduly complicate or delay the trial of the
main action, or cause undue prejudice to a party, the court may order separate trials or order that the
counterclaim proceed as a separate action

Cross claims

Rule 28: A DF can make a crossclaim against a co-DF where co-DF is liable for part or all of the claim.

Rule 28.10: A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a crossclaim, and
on motion by the plaintiff the court may make such order or impose such terms, including an order that
the crossclaim proceed as a separate action, as are necessary to prevent prejudice or delay where that
may be done without injustice to the parties to the crossclaim.

Crossclaims are nowhere to be found in the CCP. (172(2) specifically applies only to counterclaims
against the PL.) In QC, you need to implead the other DF into the case.
Forced intervention of a Third Party (Rule 5.03, 29.01, art 216)

The DF can force the intervention of a third party, who becomes a co-DF in the case. (Only DFs do this.)

Art. 216 CCP: Any party to a case may implead a third party whose presence is necessary to permit a complete
solution of the question involved in the action, or against whom he claims to exercise a recourse in warranty.

A sues B, who forces the intervention of C. This happens

when B feel like he can pass on his liability to C (see GreCon where C is the manufacturer)

when B wants to share his liability solidarily or jointly (see Gariepy where A (client) is suing B (lawyer)
for not suing C (notary and accountant) in a botched tax plan)

when prescription issues prevent A from suing C directly, but B can still sue C (possibly)

Rule 29.01: A defendant may make a third party claim against a person who is not a party to the action who,
a. is or may be liable to the defendant for all or part of the plaintiff’s claim;
b. is or may be liable to the defendant for an independent claim for damages or other relief arising out of,
i.
a transaction, occurrence or series thereof involved in the main action, or
ii.
a related transaction or occurrence or series of transactions or occurrences; or
should be bound by the determination of an issue arising between the plaintiff and the defendant.
Voluntary Intervention of a Third Party (Rule 13.01, art 208)

Sometimes you want to come into a case if you have an interest in what is going on with A and B and you want
to protect one of your rights that may be adversely affected. (E.g. the intervener in Altamira.)

To intervene, you have to show that you have a sufficient interest under art 55 CCP.
Friend of court/amicus curiae (rule 13.02, art 211)

Until recently, friends of the court were a (central) phenomenon of public/constitutional litigation. However, they
are showing up more and more regularly in non-public law cases as well!

These intervenors do not become parties.
ALI/UNIDROIT, Principles 12, 13: Multiple Claims; Amicus Curiae
12. Multiple Claims and Parties; Intervention
12.1 A party may assert any claim substantially connected to the subject matter of the proceeding against
another party or against a third person subject to the jurisdiction of the court.
12.2 A person having an interest substantially connected with the subject matter of the proceeding may apply to
intervene. The court itself, or on motion of a party, may require notice to a person having such an interest, inviting
intervention. Intervention may be permitted unless it would result in unreasonable delay or confusion of the
proceeding or otherwise unfairly prejudice a party. Forum law may permit intervention
in second-instance proceedings.
12.3 When appropriate, the court should grant permission for a person to be substituted for, or to be admitted in
succession to, a party.
12.4 The rights and obligations of participation and cooperation of a party added to the proceeding are ordinarily the
same as those of the original parties. The extent of these rights and obligations may depend upon the basis, timing, and
circumstances of the joinder or intervention.
12.5 The court may order separation of claims, issues, or parties, or consolidation with other proceedings, for fair or
more efficient management and determination or in the interest of justice. The authority should extend to parties or
claims that are not within the scope of these Principles.
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13. Amicus Curiae Submission
Written submissions concerning important legal issues in the proceeding and matters of background information may be
received from third persons with the consent of the court, upon consultation with the parties. The court may invite such
a submission. The parties must have the opportunity to submit written comment addressed to the matters contained in
such a submission before it is considered by the court.
Plurality of Defendants and Plurality of Plaintiffs
CCP Arts. 66, 67, 273.1
66. Several causes of action may be joined in the same suit, provided that the recourses exercised are not
incompatible or contradictory, that they seek condemnations of a like nature, that their joinder is not expressly
prohibited and that they are susceptible of the same mode of trial.
A creditor cannot divide a debt that is due, for the purpose of suing for the several portions of it by different actions.
67. Two or more persons, whose claims have the same juridical basis or raise the same points of law and
fact, may join in the same suit. The suit must be instituted before the Court of Québec, if that court has jurisdiction
in each of the claims; otherwise it must be instituted before the Superior Court.
At any time before the hearing, the court may order that claims joined in virtue of this article be disjoined, if it is of
opinion that the interests of justice will thus be better served.
Unless the court orders otherwise, unsuccessful co-plaintiffs are jointly and severally liable for the costs.
273.1. The court may, on an application, split an action in any matter at any stage of the proceeding.
The resulting trials are held before the same judge, unless the chief judge or chief justice decides otherwise.
Ontario Rules 5.02, 5.04, 5.05
Multiple Plaintiffs or Applicants
5.02 (1) Two or more persons who are represented by the same lawyer of record may join as plaintiffs or applicants
in the same proceeding where,
(a) they assert, whether jointly, severally or in the alternative, any claims to relief arising out of the same
transaction or occurrence, or series of transactions or occurrences;
(b) a common question of law or fact may arise in the proceeding; or
(c) it appears that their joining in the same proceeding may promote the convenient administration of justice.
Multiple Defendants or Respondents
(2) Two or more persons may be joined as defendants or respondents where,
(a) there are asserted against them, whether jointly, severally or in the alternative, any claims to relief arising
out of the same transaction or occurrence, or series of transactions or occurrences;
(b) a common question of law or fact may arise in the proceeding;
(c) there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief;
(d) damage or loss has been caused to the same plaintiff or applicant by more than one person, whether or not
there is any factual connection between the several claims apart from the involvement of the plaintiff or
applicant, and there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief
or the respective amounts for which each may be liable; or
(e) it appears that the joinder may promote the convenient administration of justice.
JOINDER OF NECESSARY PARTIES
5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the
issues in a proceeding shall be joined as a party to the proceeding.
[Claim by Person Jointly Entitled] (2) A plaintiff or applicant who claims relief to which any other person is jointly
entitled with the plaintiff or applicant shall join, as a party to the proceeding, each person so entitled.
[Claim by Assignee of Chose in Action] (3) In a proceeding by the assignee of a debt or other chose in action, the
assignor shall be joined as a party unless,
(a) the assignment is absolute and not by way of charge only; and
(b) notice in writing has been given to the person liable in respect of the debt or chose in action that it has been
assigned to the assignee.
[Power of Court to Add Parties] (4) The court may order that any person who ought to have been joined as a party
or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in
the proceeding shall be added.
[Party Added as Defendant or Respondent] (5) A person who is required to be joined as a party under subrule (1),
(2) or (3) and who does not consent to be joined as a plaintiff or applicant shall be made a defendant or respondent.
[Relief Against Joinder of Party] (6) The court may order relief against the requirement of joinder under this rule.
MISJOINDER, NON-JOINDER AND PARTIES INCORRECTLY NAMED
[Proceeding not to be Defeated by Misjoinder] 5.04 (1) No proceeding shall be defeated by reason of the
misjoinder or non-joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as
they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all
persons who are not parties.
[Adding, Deleting or Substituting Parties] (2) At any stage of a proceeding the court may by order add, delete or
substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would
result that could not be compensated for by costs or an adjournment.
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[Adding Plaintiff or Applicant] (3) No person shall be added as a PL or applicant unless the person’s consent is filed.
RELIEF AGAINST JOINDER
5.05 Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or
delay the hearing or cause undue prejudice to a party, the court may,
(a) order separate hearings;
(b) require one or more of the claims to be asserted, if at all, in another proceeding;
(c) order that a party be compensated by costs for having to attend, or be relieved from attending, any part of
a hearing in which the party has no interest;
(d) stay the proceeding against a defendant or respondent, pending the hearing of the proceeding against
another defendant or respondent, on condition that the party against whom the proceeding is stayed is bound
by the findings made at the hearing against the other defendant or respondent; or
(e) make such other order as is just.
Cross-claims and Counterclaims
CCP Art. 172
172. The defendant may plead by defence any ground of law or fact which shows that the conclusions of the demand
cannot be granted in whole or in part.
He may also in the same proceeding constitute himself cross-plaintiff in order to urge against the plaintiff any claim
arising from the same source as the principal demand, or from a related source. The court remains seized of the cross
demand notwithstanding discontinuance of the principal demand.
Ontario Rules 27, 28
RULE 27: COUNTERCLAIM
[When Available Against the PL] 27.01 (1) A DF. may assert, by way of counterclaim in the main action, any right or
claim against the p. including a claim for contribution or indemnity under the Negligence Act in respect of another
party’s claim against the DF.
[Against the PL and Another Person] (2) A defendant who counterclaims against a plaintiff may join as a defendant
to the counterclaim any other person, whether a party to the main action or not, who is a necessary or proper party to
the counterclaim.
[Statement of Defence and Counterclaim] 27.02 A counterclaim (Form 27A or 27B) shall be included in the same
document as the statement of defence and the document shall be entitled a statement of defence and counterclaim.
[Counterclaim Where DF to Counterclaim Not Already Party To Main Action] 27.03 Where a person who is not
already a party to the main action is made a defendant to the counterclaim, the statement of defence and counterclaim,
(a) shall be issued,
(i) within the time prescribed by rule 18.01 for delivery of the statement of defence in the main action
or at any time before the defendant is noted in default, or
(ii) subsequently with leave of the court; and
(b) shall contain a second title of proceeding showing who is the PL by counterclaim and who are the DFs to the
counterclaim
[Time for Delivery/Service: Where all Parties are Parties to Main Action] 27.04 (1) Where a counterclaim is
only against the plaintiff, or only against the plaintiff and another person who is already a party to the main action, the
statement of defence and counterclaim shall be delivered within the time prescribed by rule 18.01 for the delivery of the
statement of defence in the main action, or at any time before the defendant is noted in default.
[Time for Delivery/Service Where New Party is Brought In] (2) Where a counterclaim is against the plaintiff and
a defendant to the counterclaim who is not already a party to the main action, the statement of defence and
counterclaim shall be served, after it has been issued, on the parties to the main action and, together with all the
pleadings previously delivered in the main action, on a defendant to the counterclaim who is not already a party to the
main action, and shall be filed with proof of service,
(a) within thirty days after the statement of defence and counterclaim is issued or at any time before the
defendant is noted in default; or
(b) subsequently with leave of the court.
(3) A statement of defence and counterclaim need not be served personally on any person who is a party to the main
action, except where a defendant to the counterclaim is also a defendant in the main action and has failed to deliver a
notice of intent to defend or a statement of defence in the main action, in which case the defendant shall be served
personally or by an alternative to personal service under rule 16.03 whether or not the defendant has been noted in
default in the main action.
[Time for Delivery of Defence to Counterclaim] 27.05 (1) The plaintiff and any other defendant to a counterclaim
who is already a party to the main action shall deliver a defence to counterclaim (Form 27C) within twenty days after
service of the statement of defence and counterclaim.
(2) Where the plaintiff delivers a reply in the main action, the defence to counterclaim shall be included in the same
document as the reply and the document shall be entitled a reply and defence to counterclaim.
(3) Except as provided in subrule 18.02 (3) (notice of intent to defend) or 19.01 (5) (late delivery of defence), a
defendant to a counterclaim who is not already a party to the main action shall deliver a defence to counterclaim,
(a) within twenty days after service of the statement of defence and counterclaim, where the defendant to the
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counterclaim is served in Ontario;
(b) within forty days after service of the statement of defence and counterclaim, where the defendant to the
counterclaim is served elsewhere in Canada or in the United States of America; or
(c) within sixty days after service of the statement of defence and counterclaim, where the defendant to the
counterclaim is served anywhere else.
[Time for Delivery of Reply to Defence to Counterclaim] 27.06 A reply to defence to counterclaim (Form 27D), if
any, shall be delivered within ten days after service of the defence to counterclaim.
[Amending Defence To Add Counterclaim] 27.07 (1) A defendant who has delivered a statement of defence that
does not contain a counterclaim and who wishes to counterclaim only against the plaintiff or only against the plaintiff
and another person who is already a party to the main action may amend the statement of defence in accordance with
rules 26.02 and 26.03 in order to add the counterclaim, and rule 26.05 (responding to amended pleading) applies to the
amended statement of defence and counterclaim.
(2) A defendant who has delivered a statement of defence that does not contain a counterclaim and who wishes to
counterclaim against the plaintiff and another person who is not already a party to the main action may, with leave of
the court, have the registrar issue an amended statement of defence and counterclaim, and rule 26.05 (responding to
amended pleading) applies to the amended statement of defence and counterclaim.
[TRIAL OF COUNTERCLAIM] 27.08 (1) A counterclaim shall be tried at the trial of the main action, unless the court
orders otherwise.
(2) Where it appears that a counterclaim may unduly complicate or delay the trial of the main action, or cause undue
prejudice to a party, the court may order separate trials or order that the counterclaim proceed as a separate action.
DISPOSITION OF COUNTERCLAIM
[Where Claim in Main Action not Disputed] 27.09 (1) Where a DF does not dispute the claim of the PL in the main
action, but asserts a counterclaim, the court may stay the main action or grant judgment, with or without a stay of
execution, until the counterclaim is disposed of.
[Where Counterclaim not Disputed] (2) Where the PL does not dispute the counterclaim of a DF, the court may
stay the counterclaim or grant judgment, with or without a stay of execution, until the main action is disposed of.
[Where Both Claim and Counterclaim Succeed] (3) Where both the plaintiff in the main action and the plaintiff by
counterclaim succeed, either in whole or in part, and there is a resulting balance in favour of one of them, the court may
in a proper case give judgment for the balance and dismiss the smaller claim and may make such order for costs of the
claim and counterclaim as is just.
[Application to Counterclaims, Crossclaims and Third Party Claims] 27.10 Rules 27.01 to 27.09 apply, with
necessary modifications, to the assertion of a counterclaim by a defendant to a counterclaim, by a defendant to a
crossclaim and by a third party.
RULE 28: CROSSCLAIM
28.01 (1) A defendant may crossclaim against a co-defendant who,
(a) is or may be liable to the defendant for all or part of the plaintiff’s claim;
(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,
(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or
(ii) a related transaction or occurrence or series of transactions or occurrences; or
(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.
(2) A defendant who claims contribution from a co-defendant under the Negl. Act shall do so by way of crossclaim.
[Statement of Defence and Crossclaim] 28.02 A crossclaim (Form 28A) shall be included in the same document as
the statement of defence and the document shall be entitled a statement of defence and crossclaim.
[Amending Defence to Add Crossclaim] 28.03 A def. who has delivered a statement of defence that does not
contain a crossclaim and who wishes to crossclaim may amend the statement of defence in accordance with rules 26.02
and 26.03 in order to add the crossclaim, and rule 26.05 (responding to amended pleading) applies to the amended
statement of defence and crossclaim.
[Time For Delivery Of Statement Of Defence And Crossclaim] 28.04 (1) A statement of defence and crossclaim
shall be delivered,
(a) within the time prescribed by rule 18.01 for delivery of the statement of defence in the main action or at
any time before the defendant is noted in default; or
(b) subsequently with leave, which the court shall grant unless the plaintiff would be prejudiced thereby.
(2) A statement of defence and crossclaim need not be served personally on a defendant against whom a crossclaim is
made, unless the defendant has failed to deliver a notice of intent to defend or a statement of defence in the main
action, in which case the defendant shall be served personally or by an alternative to personal service under rule 16.03,
whether or not the defendant has been noted in default in the main action.
[Time For Delivery Of Defence To Crossclaim] 28.05 (1) Subject to subrule (2), a defence to crossclaim (Form
28B) shall be delivered within twenty days after service of the statement of defence and crossclaim.
[Where Defence to Crossclaim not Required] (2) Where,
(a) a crossclaim contains no claim other than a claim for contribution or indemnity under the Negligence Act;
(b) the defendant to the crossclaim has delivered a statement of defence in the main action; and
(c) the defendant to the crossclaim in response to the crossclaim relies on the facts pleaded in the defendant’s
statement of defence in the main action and not on a different version of the facts or on any matter that might,
if not specifically pleaded, take the crossclaiming defendant by surprise,
the defendant to the crossclaim need not deliver a defence to the crossclaim and shall be deemed to deny the
allegations of fact made in the crossclaim and rely on the facts pleaded in the statement of defence in the main action.
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CONTENTS OF DEFENCE TO CROSSCLAIM
28.06 (1) In a defence to crossclaim, the defendant may,
(a) defend against the crossclaim; and
(b) where appropriate, defend against the plaintiff’s claim against the crossclaiming defendant, in which case
the defendant may raise any defence open to the crossclaiming defendant. R.R.O. 1990, Reg. 194, r. 28.06 (1).
[Separate Part for Defence Against Plaintiff] (2) Where the defendant defends against the plaintiff’s claim against
the crossclaiming defendant, the defence to crossclaim shall contain a separate part entitled a defence to plaintiff’s claim
against crossclaiming defendant.
[Consequence of Defending Against Plaintiff] (3) A defendant who defends against the plaintiff’s claim against the
crossclaiming defendant,
(a) has the same rights and obligations in the action, including those in respect of discovery, trial and appeal,
as a defendant to that claim; and
(b) is bound by any order or determination made in the main action between the pl. and the crossclaiming def.
[Time for Reply by PL] (4) The plaintiff’s reply, if any, to the defence to plaintiff’s claim against crossclaiming
defendant shall be delivered within ten days after service of that defence.
[Consequence of Not Defending Against PL] (5) A defendant who does not defend against the plaintiff’s claim
against the crossclaiming defendant is bound by any order or determination made in the main action between the
plaintiff and the crossclaiming defendant.
[Effect of Default of Defence to Crossclaim] 28.07 Where a defendant against whom a crossclaim is made is noted
in default in respect of the crossclaim, the crossclaiming defendant may obtain judgment against the other defendant
only at the trial of the main action or on motion to a judge.
[Time For Delivery Of Reply To Defence To Crossclaim] 28.08 A reply to defence to crossclaim (Form 28C), if
any, shall be delivered within ten days after service of the defence to crossclaim.
[TRIAL OF CROSSCLAIM] 28.09 A crossclaim shall be tried at or immediately after the trial of the main action,
unless the court orders otherwise.
[PREJUDICE OR DELAY TO PLAINTIFF] 28.10 A plaintiff is not to be prejudiced or unnecessarily delayed by reason
of a crossclaim, and on motion by the plaintiff the court may make such order or impose such terms, including an order
that the crossclaim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be
done without injustice to the parties to the crossclaim.
[Application to Counterclaims and 3rd Party Claims] 28.11 Rules 28.01 to 28.10 apply, with necessary changes, to
the assertion of a crossclaim between co-DFs to a counterclaim or between 3rd parties to a 3rd party claim.
Forced Intervention of a Third Party
CCP Arts. 216-222
216. Any party to a case may implead a third party whose presence is necessary to permit a complete solution of the
question involved in the action, or against whom he claims to exercise a recourse in warranty.
217. Such forced intervention is affected by ordinary summons and the application must be filed with a copy of the
motion to institute proceedings.
219. A third party called in simple or personal warranty cannot take up the defence of the warrantee; he can merely
contest the demand against the latter, if he thinks proper.
220. A third party called in legal warranty may take up the defence of the warrantee, who may be relieved from the
contestation if he so requires. Although relieved from the contestation, the warrantee may nevertheless act therein for
the conservation of his rights.
Judgments rendered against the warrantor may, after being served on the warrantee, be executed against the latter.
222. Unless the court decides otherwise, the principal action and the action in warranty must be heard jointly, and a
single judgment decides them both.
The plaintiff in the principal action or any other party has an interest to make any useful application to ensure that the
action in warranty does not cause undue delay in the principal action.
Ontario Rules 5.03, 29
JOINDER OF NECESSARY PARTIES
5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the
issues in a proceeding shall be joined as a party to the proceeding.
[Claim by Person Jointly Entitled] (2) A plaintiff or applicant who claims relief to which any other person is jointly
entitled with the plaintiff or applicant shall join, as a party to the proceeding, each person so entitled.
[Claim by Assignee of Chose in Action] (3) In a proceeding by the assignee of a debt or other chose in action, the
assignor shall be joined as a party unless,
(a) the assignment is absolute and not by way of charge only; and
(b) notice in writing has been given to the person liable in respect of the debt or chose in action that it has been
assigned to the assignee.
[Power of Court to Add Parties] (4) The court may order that any person who ought to have been joined as a party
or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in
the proceeding shall be added as a party.
[Party Added as Defendant or Respondent] (5) A person who is required to be joined as a party under subrule (1),
(2) or (3) and who does not consent to be joined as a plaintiff or applicant shall be made a defendant or respondent.
[Relief Against Joinder of Party] (6) The court may by order relieve the requirement of joinder under this rule.
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RULE 29: THIRD PARTY CLAIM
29.01 A defendant may commence a third party claim against any person who is not a party to the action and who,
(a) is or may be liable to the defendant for all or part of the plaintiff’s claim;
(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,
(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or
(ii) a related transaction or occurrence or series of transactions or occurrences; or
(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.
[Time for Third Party Claim] 29.02 (1) A third party claim (Form 29A) shall be issued within 10 days after the
defendant delivers a statement of defence, or at any time before the defendant is noted in default, whichever is earlier.
[Exception and Reply] (1.1) A third party claim may be issued within 10 days after the plaintiff delivers a reply in the
main action to the defendant’s statement of defence.
[Exceptions, Consent and Leave] (1.2) A third party claim may be issued at any time with the plaintiff’s consent or
with leave, which the court shall grant unless the plaintiff would be prejudiced thereby.
[Service] (2) A third party claim shall be served on the third party personally or by an alternative to personal service
under rule 16.03, together with all the pleadings previously delivered in the main action or in any counterclaim,
crossclaim or third or subsequent party claim in the main action, within thirty days after the third party claim is issued.
(3) A third party claim shall also be served on every other party to the main action within the time for service on the
third party, but personal service is not required.
[THIRD PARTY DEFENCE] 29.03 Except as provided in subrule 18.02 (3) (notice of intent to defend) or 19.01 (5)
(late filing of defence), a 3rd party may defend against the 3rd party claim by delivering a 3rd party defence (Form 29B),
(a) within twenty days after service of the third party claim, where the third party is served in Ontario;
(b) within forty days after service of the third party claim, where the defendant is served elsewhere in Canada
or in the United States of America; or
(c) within sixty days after service of the third party claim, where the third party is served anywhere else.
[Reply to Third Party Defence] 29.04 A reply to third party defence (Form 29C), if any, shall be delivered within ten
days after service of the third party defence.
[DEFENCE OF MAIN ACTION BY THIRD PARTY] 29.05 (1) Where appropriate, the third party may defend against
the plaintiff’s claim against the defendant by delivering a statement of defence in the main action, in which the third
party may raise any defence open to the defendant.
[Consequence of Defending Main Action] (2) A third party who delivers a statement of defence in the main action,
(a) has the same rights and obligations in the main action, including those in respect of discovery, trial and
appeal, as a defendant in the main action; and
(b) is bound by any order or determination made in the main action between the plaintiff and the defendant
who made the third party claim.
[Time for Statement of Defence] (3) The statement of defence of the third party shall be delivered within the time
prescribed by rule 29.03 for the delivery of the third party defence.
[Time for Reply] (4) The plaintiff’s reply, if any, to the statement of defence of the third party shall be delivered
within ten days after service of that statement of defence.
[Consequence of Not Defending Main Action] (5) A third party who does not deliver a statement of defence in the
main action is bound by any order or determination made in the main action between the plaintiff and the defendant
who made the third party claim.
[Effect of Third Party Defence] 29.06 Where a third party has delivered a third party defence,
(a) the third party shall be served with all subsequent documents in the main action;
(b) judgment in the main action on consent or after the noting of the defendant in default may be obtained only
on notice to the third party; and
(c) where the def. making the third party claim has also made a crossclaim against a co-defendant, the codefendant and the third party have the same rights to discovery from each other as if they were parties to the
same action.
[Effect of Default Of Third Party] 29.07 Where a third party has been noted in default, the defendant may obtain
judgment against the third party only at the trial of the main action or on motion to a judge.
[TRIAL OF THIRD PARTY CLAIM] 29.08 (1) After close of pleadings in the 3rd party claim it shall be listed for trial as
an action as provided in Rule 48 without undue delay and placed on the trial list immediately after the main action.
(2) The 3rd party claim shall be tried at or immediately after the trial of the main action, unless court orders otherwise.
[PREJUDICE OR DELAY TO PLAINTIFF] 29.09 A plaintiff is not to be prejudiced or unnecessarily delayed by reason
of a third party claim, and on motion by the plaintiff the court may make such order or impose such terms, including an
order that the third party claim proceed as a separate action, as are necessary to prevent prejudice or delay where that
may be done without injustice to the defendant or the third party.
[Third Party Directions] 29.10 Any party affected by a third party claim may move for directions in respect of any
matter of procedure not otherwise provided for in these rules.
[FOURTH AND SUBSEQUENT PARTY CLAIMS] 29.11 (1) A third party may, by commencing a fourth party claim,
assert against any person not already a party to the third party claim any claim that is properly the subject matter of a
third party claim, and rules 29.01 to 29.10 apply, with necessary modifications, to the fourth party claim.
(2) A fourth party claim need not be served personally on a fourth party who is a party to the main action, unless the
fourth party is a defendant in that action and has failed to deliver a notice of intent to defend or a statement of defence
in the main action, in which case the fourth party shall be served personally or by an alternative to personal service
under rule 16.03, whether or not the fourth party has been noted in default in the main action.
(2.1) Despite subrule 29.02 (2), when a fourth party claim is served on a person who is already a party to the main
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action or to any counterclaim, crossclaim or third party claim in the main action, the pleadings previously delivered in
the main action or in any counterclaim, crossclaim or third party claim in the main action need not be served.
(3) A fourth or subsequent party may assert any claim that is properly the subject matter of a third party claim in like
manner as a third party claim.
[Application to Fourth and Subsequent Party Claims] 29.12 The provisions of these rules that apply to third party
claims apply, with necessary modifications, to fourth and subsequent party claims.
[Application to Counterclaims and Crossclaims] 29.13 Rules 29.01 to 29.12 apply, with necessary modifications,
to the assertion of a third party claim by a defendant to a counterclaim or by a defendant to a crossclaim.
[File Number] 29.14 3rd and subsequent party claims shall be given the same file # as the main action, followed by a
suffix letter.
Voluntary Intervention of a Third Party
CCP Arts. 208-215
55. Whoever brings an action at law, whether to enforce a right which is not recognized or is jeopardized or denied, or
otherwise to obtain a pronouncement upon the existence of a legal situation, must have a sufficient interest therein.
208. Any person interested in an action to which he is not a party, or whose presence is necessary to authorize, assist
or represent a party who is incapable, may intervene therein at any time before judgment.
209. Voluntary intervention is termed aggressive when the third party asks that he be acknowledged as having,
against the parties or one of them, a right which is in dispute; it is termed conservatory when the third party only seeks
to be substituted for one of the parties, in order to represent him, or to be joined with such party in order to assist him,
either to aid his action or to support his pretensions.
210. A third party who intends to intervene in a proceeding for conservatory or aggressive purposes must notify a
declaration to all the parties, specifying the party's interest in the case and the conclusions sought and stating the facts
justifying such conclusions, and file a copy of the declaration at the office of the court; in addition, the third party's
declaration must propose an intervention procedure which must be consistent with any agreements between the parties
and with the timetable agreed between them or determined by the court.
The parties have 10 days to express their opposition in writing, notify it to the parties and file a copy at the office of the
court. If no opposition is filed, the third party's interest is presumed sufficient and the intervention procedure accepted.
If an opposition is filed, the third party shall apply to the court for a determination; if it authorizes the intervention, the
court determines the intervention procedure.
An intervening party becomes a party to the proceeding.
211. A third party may ask to intervene in order to make representations during the trial. The third party must inform
the parties in writing of the purpose of and the grounds for the intervention. After hearing the parties, the court may
authorize the intervention if it deems it expedient, having regard to the questions at issue.
215. When the principal action and the intervention are heard at the same time, a single judgment decides them both.
Ontario Rule 13
RULE 13.1: PLACE OF COMMENCEMENT AND HEARING OR TRIAL
13.1.01 (1) If a statute or rule requires a proceeding to be commenced, brought, tried or heard in a particular county,
the proceeding shall commence at a ct office in that county and the county shall be named in the originating process.
[Choice of Place] (2) If subrule (1) does not apply, the proceeding may be commenced at any court office in any
county named in the originating process.
[Motion to Transfer to Another County] 13.1.02 (1) If subrule 13.1.01 (1) applies to a proceeding but a plaintiff or
applicant commences it in another place, the court may, on its own initiative or on any party’s motion, order that the
proceeding be transferred to the county where it should have been commenced.
(2) If subrule (1) does not apply, the court may, on any party’s motion, make an order to transfer the proceeding to a
county other than the one where it was commenced, if the court is satisfied,
(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or
(b) that a transfer is desirable in the interest of justice, having regard to,
(i) where a substantial part of the events or omissions that gave rise to the claim occurred,
(ii) where a substantial part of the damages were sustained,
(iii) where the subject-matter of the proceeding is or was located,
(iv) any local community’s interest in the subject-matter of the proceeding,
(v) the convenience of the parties, the witnesses and the court,
(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most
expeditious and least expensive determination of the proceeding on its merits,
(viii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter.
(3) If an order has previously been made under subrule (2), any party may make a further motion, and in that case
subrule (2) applies with necessary modifications.
(3.1) Despite subrules 37.03 (1) and 76.05 (2) (place of hearing motions), a motion under subrule (1), (2) or (3) may
be brought and heard in the county to which the transfer of the proceeding is sought.
[Transfer on Initiative of Regional Senior Judge]
(4) If subrule (1) does not apply, the regional senior judge in whose region the proceeding was commenced may, on
his or her own initiative and subject to subrules (5) and (6), make an order to transfer the proceeding to another county
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in the same region.
(5) Before making an order under subrule (4), the regional senior judge will direct parties to appear before him, by
personal attendance or telephone / video conference (Rule 1.08), to consider whether the order should be made.
(6) An order under subrule (4) may be made only if the regional senior judge is satisfied that the transfer is desirable in
the interest of justice, having regard to the factors listed in subclauses (2) (b) (i) to (ix).
(7) If an order has previously been made under subrule (4), a further order may be made, and in that case subrule (4)
applies with necessary modifications.
[Effect of Order] (8) If an order is made under subrule (1), (2) or (4),
(a) the court file shall be transferred to the court office in the county to which the proceeding has been transferred; and
(b) all further documents required to be filed in the proceeding shall be filed there.
Consolidation of Separate Actions
CCP Arts. 270-272, 509
270. Even where the claims do not originate from the same source or from related sources, two or more actions
between the same parties, brought before the same jurisdiction, may be joined by order of the court, if it appears
expedient to the court to hear them together and if it causes no undue delay for any of the actions or serious injury to
any third person interested in any of the actions.
271. The court may also order that several actions brought before it, whether or not involving the same parties, be
tried at the same time and decided on the same evidence; it may also order that the evidence in one be used in another
or that one be tried and decided first and the others meanwhile stayed.
272. An order under article 270 or 271 may be issued at any stage of a proceeding, but it may be revoked by the trial
judge if he is of opinion that it is in the interest of justice to do so. No appeal lies from such order or from the order
revoking it.
509. In appeal, judge hears all incidental proceedings provided for in Title 4, Book II to the extent they are applicable.
In exceptional circumstances, the Court may, if the interests of justice so require, allow a party to adduce, in such
manner as the Court directs, indispensable new evidence.
Applications under this article are presented by motion, and the procedure is the same as in first instance, in the
absence of rules of practice to the contrary.
During the hearing of such an application, any party may submit relevant evidence, and the judge or the Court, as the
case may be, may return the case to the court of first instance so that further proof relating to the app. may be made.
If, in the judge's opinion, the interests of justice so require, the judge may refer an application to the Court.
Ontario Rule 6
RULE 6: CONSOLIDATION OR HEARING TOGETHER
6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,
(a) they have a question of law or fact in common;
(b) the relief claimed arises out of the same transaction or occurrence/series of transactions or occurrences; or
(c) for any other reason an order ought to be made under this rule,
the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or
(e) any of the proceedings be,
(i) stayed until after the determination of any other of them, or
(ii) asserted by way of counterclaim in any other of them.
(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay. For that purpose,
the court may dispense with service of notice listing the trial and abridge the time for placing an action on the trial list.
[DISCRETION OF PRESIDING JUDGE] 6.02 Where the court has made an order that proceedings be heard either at
the same time or one immediately after the other, the judge presiding at the hearing nevertheless has discretion to
order otherwise.
RULE 6.1: SEPARATE HEARINGS
6.1.01 With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding,
including separate hearings on the issues of liability and damages.
Ontario CJA, s. 107
[Consolidation of Proceedings in Different Courts] 107.(1)Where two or more proceedings are pending in two or
more different courts, and the proceedings,
(a) have a question of law or fact in common;
(b) claim relief arising out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason ought to be the subject of an order under this section,
an order may, on motion, be made,
(d) transferring any of the proceedings to another court and requiring the proceedings to be consolidated, or to
be heard at the same time, or one immediately after the other; or
(e) requiring any of the proceedings to be,
(i) stayed until after the determination of any other of them, or
(ii) asserted by way of counterclaim in any other of them.
[Transfer from Small Claims Court] (2) A proceeding in the Small Claims Court shall not be transferred under clause
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(1) (d) to the Superior Court of Justice without the consent of the plaintiff in the proceeding in the Small Claims Court.
(3)A proceeding in the Small Claims Court shall not be required under subclause (1) (e) (ii) to be asserted by way of
counterclaim in a proceeding in the Superior Court of Justice without the consent of the plaintiff in the proceeding in the
Small Claims Court.
[Motions] (4) The motion shall be made to a judge of the Superior Court of Justice.
[Directions] (5) An order under subsection (1) may impose such terms and give such directions as are considered just,
including dispensing with service of a notice of readiness or listing for trial and abridging the time for placing an action
on the trial list.
[Transfer] (6) A proceeding that is transferred to another court under clause (1) (d) shall be titled in the court to
which it is transferred and shall be continued as if it had been commenced in that court.
[Discretion at Hearing] (7)Where an order has been made that proceedings be heard either at the same time or one
immediately after the other, the judge presiding at the hearing nevertheless has discretion to order otherwise.
Illustrations
Facts
Issue
Ratio
Saint-Martin v. Fédération des Enseignants des Ecoles Juives, QCSC, CVL, 2002
Essentially, there’s a dispute about the validity of some decisions made by PL’s union, the Federation des
enseignants des ecoles juives. There are multiple parties and the demands are for (1) declaration of nullity of
two votes (2) demand of ‘quo warranto’ (3) correction of minutes of meetings. (See para. 12)
Can the issues be split? Yes.
Should the three actions be split up (as the employer demands)?

66 CCP states that claims may be joined provided that the recourses exercised are not incompatible or
contradictory, that they seek condemnations of a like nature, that their joinder is not expressly prohibited
and that they are susceptible of the same mode of trial.

66 CCP does not permit the joinder of wholly unrelated claims against different debtors having no
common source and no connection of any kind other than the fact that each of the debtors, individually
may owe money to the creditor. (73)

The actions here are not contradictory, but they will not necessarily be submitted to the same modes of
inquiry or require the same witnesses (para. 21) or even proceed from the same set of facts (para 23).
Should the federation’s request for the dismissal of the action be granted?

One of the applicant’s claims (based on 838 CCP) is simply incorrect in law.

The notion of ‘inscription partielle’ does not exist in the CCP but « nos tribunaux sont donc prêts à
temporiser la règle apparemment stricte de ne pas accorder d’inscriptions en droit partielles, lorsqu’il s’agit
de situations ou le recours faisant l’objet de la demande d’irrecevabilité peut être facilement isolé du reste
de la demande » (para 34)

The SCC has in fact allowed partial demands of dismissal (e.g. Oznaga)

In this case the request for dismissal cannot be granted because of something to do with two of the actions
being subsidiary actions (para 40-43)
Should the claimant’s allegations be struck out? No.

The Federation argues that over half the allegations are superfluous or not pertinent. The Court agrees that
it’s long, but it’s because the claimant is trying to explain the background to the situation (para 53).

Because this is a motion and not an action, while the statement is long, it is acceptable (57).
Facts
Issue
Ratio
Fonds d’Assurance-Responsabilité du Barreau v. Gariepy, QCCQ, CVL, 2005
M sold his business to C in 1987, and the transaction included a contract of employment prepared by the
notary, Gariepy, and the accountant, Forcier. M was supposed to get a salary of $1,000/week + certain
bonuses. In 1993, the business refused to give him the bonuses. M consulted a lawyer, Daigle, who told him to
sue C for the bonuses. C counterclaimed to get back all the $$ he had paid to M. The Superior Court dismissed
the action, but said that Gariepy and Forcier hadn't ensured that M and C actually understood what the contract
meant. Mathieu sued his lawyer Daigle, saying that Daigle didn't represent him well enough and that he
neglected to tell him to sue Gariepy and Forcier. The QC Bar is defending Daigle, and is presenting a request
for forced intervention per 216 CCP to force Gariepy and Forcier to intervene, as they committed two of the
original faults. They argue that their intervention will provide a complete resolution for the case.
Can Forcier and Gariepy be forced to be named in the case?  No.
 The Bar is saying that Daigle, Gariepy and Forcier are responsible in solidum for the prejudice suffered by
M. The presence of G & F are thus necessary for complete resolution of the case.
 Obligation in solidum (imperfect solidarity) is a jurisprudential creation that occurs when the faults of
many debtors all contributed to realization of the same damage. There are not only many different
obligational links, but there are many different kinds of debt. The only thing in common is the claim.
 Here, there's obviously solidary liability between G&F, but there is no link between G&F and Daigle.
 Daigle is being pursued for subsequent fault. His fault occurred in 1993, while G&F's occurred in 1989.
This passage of time isn't fatal, but it shows that there were distinct and successive faults that did
not contribute to the same injury.
 The mandates could be related, but they do not constitute responsibility for one unique thing.
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Class
Notes
Facts
Issues
Ratio
Facts
Issue
Ratio
Facts
Ratio
Forced Intervention

We must avoid conflating necessity and utility. 216 CPC specifies that the forced intervention occurs when
it is necessary for complete solution of the litigation. Here, it is not.

Forced intervention is juridically equal to a joinder to the principal action. We're adding a new DF who has
to respond to questions from the plaintiff.

If the 3rd party can do what is needed through a subpoena as a witness then they should not be impleaded
as a co-defendant. The lawyer could have called the other parties as a witness.

This is a loss of chance case. How can you show that you should be compensated for the damages when all
you can show is that you lost the chance to win a case?
Kingsway General Insurance Co. V. Duvernay Plomberie et Chauffage
After work by a plumber, Sanum Knit Fabrics (represented by Kingsway Insurance suffers water damage.
Kingsway doesn’t compensate Sanum for the damage despite their insurance contract. When Sanum takes
them to court, Kingway argues that Sanum’s claim is exaggerated and that they should go after Duvernay.
Kingsway then tries to implead the plumbers into the action as a PL alongside themselves.
Can an insurer who refuses to pay an indemnity to a claimant forcibly implead the 3rd party who is potentially
responsible for the accident giving rise to the claim under 216 CCP? Yes, in this case.

There is big difference between a “mise en cause” (impleading) and “le recours en garantie.”

“Recours en garantie” : Kingsway could pay the claimant and go after the plumbers once subrogated
into the insuree’s rights (under 2724 and 2895 CCQ.)

« L’intervention forcée vise plus simplement à joindre un nouveau défendeur à l’instance telle
qu’engagée pour permettre de résoudre, au sein d’un même débat, le litige et favoriser une solution
complète de celui-ci » (86). I.e., the goal of forced 3rd party intervention is to permit the complete
resolution of the issue in a single proceeding.

An impleaded party has the same rights as the initial DF and he can contest the main action.

Impleading aims to reduce costs and avoid the useless repetition of actions (86).

An insurer must wait until after the trial to go after the initial cause of the damage, since subrogation
only takes place once the insurer (debtor) has accepted his obligation to pay the insuree (creditor) (91).

A review of case law gives us an example of an insuree who went after the party causing the damage for
the difference between the insurance payment and the cost of re-building, while the insurance company
went after the same party for the sum of the claim they paid.

Here, impleading the plumbers will allow the issue to be completely resolved (since if plumbers are at
fault, they will pay insurers), thus saving judicial resources. (96)
Beardon v. Lee (ONSC)
[Medical malpractice case] An expert witness for PLs was alleged to have lied about his qualifications. He
wants to intervene in a case where the initial judgement was set aside on that basis.
Should the court grant a motion by the PL’s expert witness for leave to intervene in a pending motion by DFs
to set aside judgment on grounds of the expert’s fraud? Yes, in this case.

Rule 13.01(1) sets out the rules for interveners.

The protection of a proposed intervener’s integrity is a legitimate interest for the purposes of
13.01(1)(a).

However, 13.01(1)(b) doesn’t apply because he does not meet the criteria of adverse effect.

The Judge’s decision to use their discretion to grant status depends on the nature of the case, the issues
which arise and the likelihood of the doctor being able to make a useful contribution to the resolution of
the motion without causing injustice to the immediate parties (99).
School of Dance Pre-Professional Programme Inc. V. Crichton Cultural Community Centre (CML)
Parties are involved in a dispute relating to their shared use of a historical building. The school wants to sell
the building under partition. The City of Ottawa wants to be added to the action because of its financial and
cultural stake in the proceedings. (The City gave a $250K grant to the School to help them buy the property.)

Rule 5.03(1) says that any party that is necessary for court to adjudicate effectively and completely on
the issue shall be joined.

Based on the information presented, the City will be impacted by the decision, so they should be joined.
THE DISCOVERY PROCESS


Disclosure is about revealing to the other side everything that you will present at trial. Discovery is facilitating the
other party’s examination of you. The process is exploratory and involves sharing.
Disclosure involves things like declarations, communication with the other party, production of evidence for the
court and the affidavit of documents (Ontario).
98



1) Sanction: You can’t use at trial what you did not disclose. Rule 30.08 gives the judge broad powers to
make “any order that is just” including dismissal of a case for failure to disclose.
Discovery is different in the U.K./Canada/U.S. context from the continental European context
Discovery is inextricably linked to the role of the judge (re: forensic exploration or forensic determination) and the
existence of the adversarial system. Inquisitorial systems don’t have the same concept of discovery (See Hazard.)
Discovery is reviled in continental Europe for two reasons:
1) Fear that discovery will lead to American-style discovery (which is overly broad, unregulated, prone to
permitting “fishing expeditions”, very lengthy, very costly, and nevertheless seen as part of due process)
2) Fear that discovery will lead to other kinds of legal strategies they don’t like, e.g. class actions, CFAs,
punitive damages, etc.
Purpose and Effects

Discovery is an ongoing and multi-staged process
o
Ontario: Rules 29.1 - 35
o
Quebec: arts. 119, 274.1, 331.1-331.7, 397-400, 402-403 CCP

The discovery process includes both discovery and disclosure.
o
Ontario: Compare Rule 30.03 with Rule 31.03
o
Quebec: Compare arts. 331.1-331.2 with arts. 397-398

The discovery process facilitates the trial. It narrows down the issues and limits the expenditure of court resources.

It also aims to level the playing field with regard to information.
Discovery: What does it enable?

In Ontario, you have a maximum of seven hours. What do you want to get done?
o
Assess the strengths and weaknesses of both your side and the other side(s) of the case
o
Obtain admissions
o
Narrow down the issues for trial
o
Asses the credibility of a person examined as a witness
o
Get a recorded version of the parties’ testimony prior to trial

Discovery promotes settlement when done right.
Discovery: Costs

Ontario Task Force Report (2003): In cases that go to trial, discovery accounted for:
o
Up to 25% of total billings in 32% of cases
o
25%-50% of total billings in 44% of cases
o
50%+ of total billings in 23% of cases

The high costs can create issues of access to justice. The legislature has several options to mitigate the problem:
o
Limit the use of discovery by imposing time limits and monetary caps.

Quebec: No discovery for cases worth under $25 000. This is purely a proportionality rule.

Ontario: For simplified procedure and cases worth $25K- $100K, discovery is limited to 2 hours.
Rule 31.05.1: No party shall spend more than 7 hours on discovery without either the consent of
both parties or leave of the court (which considers conduct, the financial ability of the parties, the
complexity of the case, etc.)
o
Narrow the scope of discovery
Discovery: Scope

Who may be examined?
o
As a general rule in Canada, you only get to discover the other party, and you only get to do it once (unless
you get leave from the court. (If the party is a corporation, you may get to discover more than one person.)
o
You cannot discover the expert. You get their report, but not a kick at the can.

What may be asked in an examination on discovery?
o
You can ask questions on issues “relating to” the case (397 CCP) or “relevant to” to case (ON.)

Quebec: The length of discovery is determined by the parties and approved by the judge.

Ontario: Written discovery is possible, except for cases under simplified procedure (76.04(1)). In any case, you can
never have a part-oral, part-written discovery – it must be one or the other.

Rules 29.1 – 35 set out the new “Discovery Plan” (which eerily resembles Quebec’s timetable in some aspects)
o
Parties must agree to the plan no later than 60 days after the closing of pleading
o
The plan must be in writing and specify the intended scope, costs, length, time of examination, etc. See
29.1.03(3) for the full list of criteria.
o
Unlike in Quebec, the Discovery Plan does not need to be filed in court or approved by a judge. However, a
party can complain to a judge, in which case sanctions might be ordered.
o
29.1.05 allows the judge to refuse relief and to award costs on any motion relating to discovery if the parties
can’t agree to (or fail to update) a plan. (In QC, the judge will just make the timetable for you.)
Abuse of Discovery

Parties can violate the scope of questioning

Parties can engage in improper, vexatious, or useless examinations

Parties being examined can give evasive answers or otherwise fail to comply with the examination
99

Parties can file unmeritorious objections to discovery and needless motions
Sanctions for Abuse

Costs: In Quebec, the tariffs used to limit the use of costs as a sanction, but the new 54.1 CCP opens the door to
cost awards in cases of abuse.

Terminating sanction: A judge may terminate an examination (396.4 CCP) or (less likely) dismiss the entire
action (Rule 34.15; 54.1 CCP)

Evidentiary sanctions: You can’t introduce at trial what was not provided in discovery (Rule 31.07; 331.1 CCP)

Contempt of court? It’s unclear whether contempt orders can be made in discovery in Quebec.
o
50 CCP: You are not “in court” in discovery. However, Jukier thinks a contempt order is possible in an
indirect way: apply for a court order regarding non-compliance or abuse in discovery, and then if the
improper conduct continues in violation of the court order, perhaps you can get slapped with contempt.
o
Rule 34.15(2): A judge can make a contempt order if you don’t comply with the examination.
Confidentiality in Discovery

Discovery typically takes place in a lawyer’s office, and is recorded. The party to be examined is sworn in.

If the case goes to trial, what came out in discovery can be included in the record. There’s no confidentiality in that
sense. However, the vast majority of cases settle after discovery without a trial. Is there confidentiality there?

Why should it be confidential?

People are more honest when they think that what they are saying is confidential.

Confidentiality provides an incentive to settle – i.e., “If you settle, this embarrassing thing won’t go to trial.”

Why should it not be confidential?

The open court principle – or, “Justice withers in a cloud of secrecy” (Bentham).

However, this principle exists to ensure judicial accountability. In discovery, the judge isn’t there. There is
no concern for judicial accountability.

In the U.S., the general default provisions hold that discovery is not confidential unless a party shows good reason for
a protective order for confidentiality.
ALI/UNIDROIT Principle 16: Access to Information and Evidence
16. Access to Information and Evidence
16.1 Generally, the court and each party should have access to relevant and non-privileged evidence, including
testimony of parties and witnesses, expert testimony, documents, and evidence derived from inspection of things, entry
upon land, or, under appropriate circumstances, from physical or mental examination of a person. The parties should
have the right to submit statements that are accorded evidentiary effect.
16.2 Upon timely request of a party, the court should order disclosure of relevant, non-privileged, and reasonably
identified evidence in the possession or control of another party or, if necessary and on just terms, of a non-party. It is
not a basis of objection to such disclosure that the evidence may be adverse to the party or person making the
disclosure.
16.3 To facilitate access to information, a lawyer for a party may conduct a voluntary interview with a potential nonparty witness.
16.4 Eliciting testimony of parties, witnesses, and experts should proceed as customary in the forum. A party should
have the right to conduct supplemental questioning directly to another party, witness, or expert who has first been
questioned by the judge or by another party.
16.5 A person who produces evidence, whether or not a party, has the right to a court order protecting against improper
exposure of confidential information.
16.6 The court should make free evaluation of the evidence and attach no unjustified significance to evidence according
to its type or source.
CCP Arts. 331.1ff: Disclosure
331.1. A party who intends to refer at the hearing to an exhibit in his possession, whether the exhibit be real evidence
or a document, including the whole or an abstract of testimony, an expert's report or any other document referred to
in articles 294.1, 398.1, 398.2, 399.2 and 402.1, must communicate it to any other party to the proceedings, in
accordance with the provisions of this Section.
331.2. In proceedings introduced pursuant to article 110, exhibits must be disclosed to the other parties by means of
a notice of disclosure.
Disclosure is not required if a copy of the exhibits is provided to the parties upon service of a pleading.
In the case of an exhibit in support of a pleading, the notice or the copy of the exhibit must be attached to the
pleading being served.
331.3. The procedure and the time limit for communicating exhibits may be agreed between the parties in the
proceeding timetable or determined by the court.
If the proceeding timetable does not set out the procedure or the time limit for communicating exhibits, a party having
received a notice of disclosure may, in writing, request a copy of the exhibits. If the request is not complied with
within 10 days after it is received, the party may apply to the court for satisfaction.
331.4. Except where otherwise provided in the proceeding timetable, upon inscribing a case for proof and hearing, a
party who intends to refer at the hearing to an exhibit in his or her possession other than an exhibit in support of a
pleading must communicate the exhibit to all other parties. The other parties must do likewise within 30 days after the
inscription, failing which any exhibit they may wish to refer to may be filed only with the authorization of the court.
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In the case of an oral defence and where the hearing is not held at the time of presentation of the motion to institute
proceedings, any exhibit to which the first paragraph applies must be communicated within the time limit set forth in
the proceeding timetable or determined by the court, failing which the exhibit may be filed only with authorization of
court.
331.5. If, owing to the circumstances, a copy of an exhibit cannot reasonably be provided to a party having requested
such a copy, the party in possession of the exhibit must give access thereto by other means. If the parties cannot
agree, a judge may be requested to determine a communication procedure and, if appropriate, a time limit.
331.6. A party that intends to use real evidence at the hearing must give the other parties access to the evidence in
accordance with the provisions of this Section, with the necessary modifications.
Ontario Rules, Rule 53.03
[Experts’ Reports] 53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days
before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the
expert, containing the information listed in subrule (2.1).
(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not
less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the
expert, containing the information listed in subrule (2.1).
(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The instructions provided to the expert in relation to the proceeding.
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the
range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
7. An acknowledgement of expert’s duty (Form 53) signed by the expert.
[Schedule for Service of Reports] (2.2) Within 60 days after an action is set down for trial, the parties shall agree
to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1)
and (2), unless the court orders otherwise.
[Sanction for Failure to Address Issue in Report] (3) An expert witness may not testify with respect to an issue,
except with leave of the trial judge, unless the substance of his testimony with respect to that issue is set out in,
(a) a report served under this rule; or
(b) a supplementary report served on every other party to the action not less than 30 days before the
commencement of the trial.
[Extension or Abridgment of Time] (4) The time provided for service of a report or supplementary report under
this rule may be extended or abridged,
(a) by the judge or case management master at the pre-trial conference or at any conference under Rule 77;
(b) or by the court, on motion.
Hazard, G.C. “Discovery and the Role of the Judge in Civil Law Jurisdiction”
Pre-trial discovery is an integral part of contemporary American civil litigation, but discovery is not available in CVL
[continental] jurisdictions. This is frustrating for American judges.
American System:

Discovery is the deposition of witnesses and discovery of documents

May be taken as a right and without court permission

Can even go so far as to use the power of subpeona
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The duration of discovery is limited only by the resources of the parties

Entails a danger of “fishing expeditions” (which are prohibited in other CML jurisdictions via procedural rules)

All CML systems are adversarial – i.e., the role of the judge is to decide between competing presentations of
evidence and law that are presented by advocates. The judge is not responsible for finding the “truth” or
ensuring the adequate development of evidence at trial. CVL systems are totally different.
Civil Law Systems:

CVL systems are inquisitorial.

Judges decide both fact and law, and are thus responsible for eliciting evidence.

The advocates’ function is to assist the judge in fulfilling her responsibility

There is no “pre-trial” in the CVL. Evidence is received on a tentative basis until proven wrong.

The judge needs to know only what is necessary to decide the case

The CVL has a historical mistrust of the judiciary, since in France, judges were key to the Ancien Regime.
Societe National Industrielle Aerospatiale v.United States District Court for the Southern District:

In this case there was a conflict between the US Federal Rules (which permit production of documents
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




wherever they are located, without prior judicial approval) and the Hague Convention on the Taking of
Evidence Abroad in Civil or Commercial Matters, (where evidence abroad is to be obtained by application to
the court in the country involved.)
The Hague Convention supports the international legal concept of not interfering with other domestic courts.
The American Rules are seen as fulfilling constitutional rights
The notion that a party has a right to compel the production of evidence violates the fundamental principles of
the CVL – especially considering the different roles of the advocates in the two systems.
The USSC interpreted the Convention as not violating the Federal Rules. (This is kind of crazy.)
Cases like this are seen in the CVL as an invasion and a breach of the role and responsibility of judges.
CCP, Arts. 396.1-398: Discovery
396.1. No examination on discovery is permitted where the amount claimed or the value of the property claimed is
less than $25,000.
396.2. Examinations on discovery, whether before or after the filing of the defence, may only be held in accordance
with the terms provided in the agreement between the parties or determined by the court, particularly as far as their
number and length are concerned.
396.3. Before an examination on discovery is held, the parties may, by mutual consent, submit any foreseeable
objection to the judge for a determination.
396.4. The court may, on an application, terminate an examination that it considers excessive, vexatious or useless,
and rule on the costs.
397. The defendant may, before the filing of the defence and after two days' notice to the attorneys of the other
parties, summon to be examined before the judge or clerk upon all facts relating to the issues between the parties or
to give communication and allow copy to be made of any document relating to the issues:
1° the plaintiff, or his representative, agent or employee;
2° in any civil liability action, the victim, and any person involved in the commission of the act which caused
the injury;
3° the person for whom the plaintiff claims as tutor or curator, or for whom he acts as prête-nom, or whose
rights he has acquired by transfer, subrogation or other similar title;
4° with the permission of the court and on such conditions as it may determine, any other person.
398. After defence filed, any party may, after two days' notice to the attorneys of the other parties, summon to be
examined before the judge or clerk upon all facts relating to the issues between the parties or to give communication
and allow copy to be made of any document relating to the issue:
1° any other party, or his representative, agent or employee;
2° any person mentioned in paragraphs 2 and 3 of article 397;
3° with the permission of the court and on such conditions as it may determine, any other person.
The defendant cannot, however, without permission of the judge or, in the case referred to in subparagraph 3 of the
first paragraph, the court, examine under this article any person whom he has already examined under article 397.
398.1. A party having examined witnesses under article 397 or 398 may introduce as evidence the whole or abstracts
only of the depositions taken, provided they have been communicated and filed in the record in accordance with the
provisions of Section I of Chapter I.1 of this Title.
However, on the motion of any other party, the court may order any abstract of the deposition which, in its opinion,
cannot be dissociated from the abstracts already filed, to be added to the record.
398.2. Article 398.1 applies also in the case of an examination made under article 93, except an examination
concerning a detailed affidavit filed in a family matter. However, in the case of a motion other than a motion to
institute proceedings, the whole or the abstracts of the depositions that one of the parties intends to file must be
served on the other parties at least 10 days before the date of the hearing unless the court decides otherwise.
Ontario Rules, Rules 30 and 31: Discovery
RULE 30: DISCOVERY OF DOCUMENTS
30.01 (1) In rules 30.02 to 30.11,
(a) “document” includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey,
book of account, and data and information in electronic form; and
(b) a document shall be deemed to be in a party’s power if that party is entitled to obtain the original
document or a copy of it and the party seeking it is not so entitled.
(2) In subrule 30.02 (4),
(a) a corporation is a subsidiary of another corporation where it is controlled directly or indirectly by the other
corporation; and
(b) a corporation is affiliated with another corporation where,
(i) one corporation is the subsidiary of the other,
(ii) both corporations are subsidiaries of the same corporation, or
(iii) both corporations are controlled directly or indirectly by the same person or persons.
SCOPE OF DOCUMENTARY DISCOVERY
[Disclosure] 30.02 (1) Every document relevant to any matter in issue in an action that is or has been in the
possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or
not privilege is claimed in respect of the document.
[Production for Inspection] (2) Every document relating to any matter in issue in an action that is in the
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possession, control or power of a party to the action shall be produced for inspection if requested, as provided in rules
30.03 to 30.10, unless privilege is claimed in respect of the document.
[Insurance Policy] (3) A party shall disclose and, if requested, produce for inspection any insurance policy under
which an insurer may be liable,
(a) to satisfy all or part of a judgment in the action; or
(b) to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgment,
but no information concerning the insurance policy is admissible in evidence unless relevant to an issue in the action.
[Subsidiary and Affiliated Corporations and Corporations Controlled by Party] (4) The court may order a
party to disclose all relevant documents in the possession, control or power of the party’s subsidiary or affiliated
corporation or of a corporation controlled directly or indirectly by the party and to produce for inspection all such
documents that are not privileged.
AFFIDAVIT OF DOCUMENTS
30.03 (1) A party to an action shall serve on every other party an affidavit of documents (Form 30A or 30B)
disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in
issue in the action that are or have been in the party’s possession, control or power.
[Contents] (2) The affidavit shall list and describe, in separate schedules, all documents relevant to any matter in
issue in the action,
(a) that are in the party’s possession, control or power and that the party does not object to producing;
(b) that are or were in the party’s possession, control or power and for which the party claims privilege, and
the grounds for the claim; and
(c) that were formerly in the party’s possession, control or power, but are no longer in the party’s possession,
control or power, whether or not privilege is claimed for them, together with a statement of when and how the
party lost possession or control of or power over them and their present location.
(3) The affidavit shall also contain a statement that the party has never had in the party’s possession, control or
power any document relevant to any matter in issue in the action other than those listed in the affidavit.
Lawyer's Certificate
(4) Where the party is represented by a lawyer, the lawyer shall certify on the affidavit that he or she has explained
to the deponent,
(a) the necessity of making full disclosure of all documents relevant to any matter in issue in the action; and
(b) what kinds of documents are likely to be relevant to the allegations made in the pleadings.
[Affidavit not to be Filed] (5) An affidavit of documents shall not be filed unless it is relevant to an issue on a
pending motion or at trial.
INSPECTION OF DOCUMENTS
[Request to Inspect] 30.04 (1) A party who serves on another party a request to inspect documents (Form 30C)
is entitled to inspect any document that is not privileged and that is referred to in the other party’s affidavit of
documents as being in that party’s possession, control or power.
(2) A request to inspect docs may also be used to obtain the inspection of any document in another party’s
possession, control or power referred to in the originating process, pleadings or an affidavit served by other party.
(3) A party on whom a request to inspect documents is served shall forthwith inform the party making the request of
a date within five days after the service of the request to inspect documents and of a time between 9:30 a.m. and
4:30 p.m. when the documents may be inspected at the office of the lawyer of the party served, or at some other
convenient place, and shall at the time and place named make the documents available for inspection.
Documents to be Taken to Examination and Trial
(4) Unless the parties agree otherwise, all documents listed in a party’s affidavit of documents that are not privileged
and all documents previously produced for inspection by the party shall, without notice, summons or order, be taken
to and produced at,
(a) the examination for discovery of the party or of a person on behalf/in place of/in addition to the party; and
(b) the trial of the action.
[Court may Order Production] (5) The court may at any time order production for inspection of documents that
are not privileged and that are in the possession, control or power of a party.
[Court may Inspect to Determine Claim of Privilege] (6) Where privilege is claimed for a doc, the court may
inspect the document to determine the validity of the claim.
[Copying of Documents] (7) Where a document is produced for inspection, the party inspecting the document is
entitled to make a copy of it at the party’s own expense, if it can be reproduced, unless the person having possession
or control of or power over the document agrees to make a copy, in which case the person shall be reimbursed for the
cost of making the copy.
[Divided Disclosure or Production] (8) Where a document may become relevant only after the determination of
an issue in the action and disclosure or production for inspection of the document before the issue is determined would
seriously prejudice a party, the court on the party’s motion may grant leave to withhold disclosure or production until
after the issue has been determined.
[Disclosure or Production Not Admission of Relevance] 30.05 The disclosure or production of a document for
inspection shall not be taken as admission of its relevance or admissibility.
[Where Affidavit Incomplete or Privilege Improperly Claimed] 30.06 Where the court is satisfied by any
evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s
affidavit of documents, or that a claim of privilege may have been improperly made, the court may,
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(a) order cross-examination on the affidavit of documents;
(b) order service of a further and better affidavit of documents;
(c) order the disclosure or production for inspection of the document, or a part of the document, if it is not
privileged; and
(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.
[Documents or Errors Subsequently Discovered] 30.07 Where a party, after serving an affidavit of documents,
(a) comes into possession or control of or obtains power over a document that relates to a matter in issue in
the action and that is not privileged; or
(b) discovers that the affidavit is inaccurate or incomplete,
the party shall forthwith serve a supplementary affidavit specifying the extent to which the affidavit of documents
requires modification and disclosing any additional documents.
EFFECT OF FAILURE TO DISCLOSE OR PRODUCE FOR INSPECTION
30.08 (1) Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or
fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking,
(a) if the document is favourable to the party’s case, the party may not use the document at the trial, except
with leave of the trial judge; or
(b) if the document is not favourable to the party’s case, the court may make such order as is just.
[Failure to Serve Affidavit or Produce Document] (2) Where a party fails to serve an affidavit of documents or
produce a document for inspection in compliance with these rules or fails to comply with an order of the court under
rules 30.02 to 30.11, the court may,
(a) revoke or suspend the party’s right, if any, to initiate or continue an examination for discovery;
(b) dismiss the action, if the party is a PL, or strike out the statement of defence, if the party is a DF; and
(c) make such other order as is just.
[Privileged Document Not To Be Used Without Leave] 30.09 Where a party has claimed privilege in respect of a
document and does not abandon the claim by giving notice in writing and providing a copy of the document or
producing it for inspection at least 90 days before the commencement of the trial, the party may not use the
document at the trial, except to impeach the testimony of a witness or with leave of the trial judge.
[Production From Non-Parties With Leave] 30.10 (1) The court may, on motion by a party, order production for
inspection of a document that is in the possession, control or power of a person not a party and is not privileged where
the court is satisfied that,
(a) the document is relevant to a material issue in the action; and
(b) it would be unfair to require the moving party to proceed to trial without having discovery of the
document.
(2) A motion for an order under subrule (1) shall be made on notice,
(a) to every other party; and
(b) to the person not a party, served personally or by an alternative to personal service under rule 16.03.
[Court may Inspect Document] (3) Where privilege is claimed for a document referred to in subrule (1), or where
the court is uncertain of the relevance of or necessity for discovery of the document, the court may inspect the
document to determine the issue.
[Preparation of Certified Copy] (4) The court may give directions respecting the preparation of a certified copy of
a document referred to in subrule (1) and the certified copy may be used for all purposes in place of the original..
[Cost of Producing Document] (5) The moving party is responsible for the reasonable cost incurred or to be
incurred by the person not a party to produce a document referred to in subrule 1, unless the court orders otherwise.
[Document Deposited For Safe Keeping] 30.11 The court may order that a relevant document be deposited for
safe keeping with the registrar and thereafter the document shall not be inspected by any person except with leave of
the court.
RULE 30.1: DEEMED UNDERTAKING
30.1.01 (1) This Rule applies to,
(a) evidence obtained under,
(i) Rule 30 (documentary discovery),
(ii) Rule 31 (examination for discovery),
(iii) Rule 32 (inspection of property),
(iv) Rule 33 (medical examination),
(v) Rule 35 (examination for discovery by written questions); and
(b) information obtained from evidence referred to in clause (a).
(2) This Rule does not apply to evidence or information obtained otherwise than under the rules listed in subrule 1.
[Deemed Undertaking] (3) All parties and their lawyers are deemed to undertake not to use evidence or
information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was
obtained.
[Exceptions] (4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents.
(5) Subrule (3) does not prohibit the use, for any purpose, of,
(a) evidence that is filed with the court;
(b) evidence that is given or referred to during a hearing;
(c) information obtained from evidence referred to in clause (a) or (b).
(6) Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such
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evidence, to impeach the testimony of a witness in another proceeding.
(7) Sub (3) does not prohibit the use of evidence or information in accordance with subrule 31.11 (8) (sub. action).
Order that Undertaking does not Apply.
(8) If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed
evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and
may impose such terms and give such directions as are just.
RULE 31: EXAMINATION FOR DISCOVERY
31.01 In rules 31.02 to 31.11, “document” has the same meaning as in clause 30.01 (1) (a).
[Form of Examination] 31.02 (1) Subject to subrule (2), an examination for discovery may take the form of an
oral examination or, at the option of the examining party, an examination by written questions and answers, but the
examining party is not entitled to subject a person to both forms of examination except with leave of the court.
(2) Where more than one party is entitled to examine a person, the examination for discovery shall take the form of
an oral examination, unless all the parties entitled to examine the person agree otherwise.
[WHO MAY EXAMINE AND BE EXAMINED] 31.03 (1) A party to an action may examine for discovery any other
party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party
may examine more than one person as permitted by subrules (2) to (8).
[On Behalf of Corporation] (2) Where a corporation may be examined for discovery,
(a) the examining party may examine any officer, director or employee on behalf of the corporation, but the
court on motion of the corporation before the examination may order the examining party to examine another
officer, director or employee; and
(b) the examining party may examine more than one officer, director or employee only with the consent of
the parties or the leave of the court.
[On Behalf of Partnership or Sole Proprietorship] (3) Where an action is brought by or against a partnership or
a sole proprietorship using the firm name,
(a) each person who was, or is alleged to have been, a partner or the sole proprietor, as the case may be, at
a material time, may be examined on behalf of the partnership or sole proprietorship; and
(b) the examining party may examine one or more employees of the partnership or sole proprietorship only
with the consent of the parties or the leave of the court.
[Requirements for Leave] (4) Before making an order under clause 2(b) or 3(b), the court shall satisfy itself that,
(a) satisfactory answers respecting all of the issues raised cannot be obtained from only one person without
undue expense and inconvenience; and
(b) examination of more than one person would likely expedite the conduct of the action.
[In Place of Person under Disability] (5) Where an action is brought by or against a party under disability,
(a) the litigation guardian may be examined in place of the person under disability; or
(b) at the option of the examining party, the person under disability may be examined if he or she is
competent to give evidence,
but where the litigation guardian is the Children’s Lawyer or the Public Guardian and Trustee, the litigation guardian
may be examined only with leave of the court.
[Assignee] (6) Where an action is brought by or against an assignee, the assignor may be examined in addition to
the assignee.
[Trustee in Bankruptcy] (7) Where an action is brought by or against a trustee of the estate of a bankrupt, the
bankrupt may be examined in addition to the trustee.
[Nominal Party] (8) Where an action is brought or defended for the immediate benefit of a person who is not a
party, the person may be examined in addition to the party bringing or defending the action.
[Limiting Multiple Examinations] (9) Where a party is entitled to examine for discovery,
(a) more than one person under this rule; or
(b) multiple parties who are in the same interest,
but the court is satisfied that multiple examinations would be oppressive, vexatious or unnecessary, the court may
impose such limits on the right of discovery as are just.
WHEN EXAMINATION MAY BE INITIATED
[Examination of Plaintiff] 31.04 (1) A party who seeks to examine a plaintiff for discovery may serve a notice of
examination under rule 34.04 or written questions under rule 35.01 only after delivering a statement of defence and,
unless the parties agree otherwise, serving an affidavit of documents.
[Examination of Defendant] (2) A party who seeks to examine a defendant for discovery may serve a notice of
examination under rule 34.04 or written questions under rule 35.01 only after,
(a) the defendant has delivered a statement of defence and, unless the parties agree otherwise, the
examining party has served an affidavit of documents; or
(b) the defendant has been noted in default.
[Completion of Examination] (3) The party who first serves on another party a notice of examination under rule
34.04 or written questions under rule 35.01 may examine first and may complete the examination before being
examined by another party, unless the court orders otherwise.
[Oral Examination by More Than One Party] 31.05 Unless the court orders or the parties agree otherwise, where
more than one party is entitled to examine a party or other person for discovery without leave, there shall be only one
oral examination, which may be initiated by any party adverse to the party,
(a) who is to be examined; or
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(b) on behalf or in place of whom, or in addition to whom, a person is to be examined.
[Not to Exceed Seven Hours] 31.05.1 (1) No party shall, in conducting oral examinations for discovery, exceed a
total of seven hours of examination, regardless of the number of parties or other persons to be examined, except with
the consent of the parties or with leave of the court.
[Considerations for Leave] (2) In determining whether leave should be granted under subrule 1, the court shall
consider,
(a) the amount of money in issue;
(b) the complexity of the issues of fact or law;
(c) the amount of time that ought reasonably to be required in the action for oral examinations;
(d) the financial position of each party;
(e) the conduct of any party, including a party’s unresponsiveness in any examinations for discovery held
previously in the action, such as failure to answer questions on grounds other than privilege or the questions
being obviously irrelevant, failure to provide complete answers to questions, or providing answers that are
evasive, irrelevant, unresponsive or unduly lengthy;
(f) a party’s denial or refusal to admit anything that should have been admitted; and
(g) any other reason that should be considered in the interest of justice. O. Reg. 438/08, s. 29.
SCOPE OF EXAMINATION
31.06 (1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief,
any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2)
to (4) and no question may be objected to on the ground that,
(a) the information sought is evidence;
(b) the question constitutes cross-examination, unless question is directed solely to the witness’s credibility or
(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.
[Identity of Persons Having Knowledge] (2) A party may on an examination for discovery obtain disclosure of
the names and addresses of persons who might reasonably be expected to have knowledge of transactions or
occurrences in issue in the action, unless the court orders otherwise.
[Expert Opinions] (3) A party may on an examination for discovery obtain disclosure of the findings, opinions and
conclusions of an expert engaged by or on behalf of the party being examined that are relevant to a matter in issue in
the action and of the expert’s name and address, but the party being examined need not disclose the information or
the name and address of the expert where,
(a) the findings, opinions and conclusions of the expert relevant to any matter in issue in the action were
made or formed in preparation for contemplated or pending litigation and for no other purpose; and
(b) the party being examined undertakes not to call the expert as a witness at the trial.
[Insurance Policies] (4) A party may on an examination for discovery obtain disclosure of,
(a) the existence and contents of any insurance policy under which an insurer may be liable to satisfy all or
part of a judgment in the action or to indemnify or reimburse a party for money paid in satisfaction of all or
part of the judgment; and
(b) the amount of money available under the policy, and any conditions affecting its availability.
(5) No info concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action.
[Divided Discovery] (6) Where information may become relevant only after the determination of an issue in the
action and the disclosure of the information before the issue is determined would seriously prejudice a party, the court
on the party’s motion may grant leave to withhold the information until after the issue has been determined.
FAILURE TO ANSWER ON DISCOVERY
31.07 (1) A party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question if,
(a) the party or other person refuses to answer the question, whether on grounds of privilege or otherwise;
(b) the party or other person indicates that the question will be considered or taken under advisement, but no
answer is provided within 60 days after the response; or
(c) the party or other person undertakes to answer the question, but no answer is provided within 60 days
after the response.
[Effect of Failure to Answer] (2) If a party, or a person examined for discovery on behalf of or in place of a party,
fails to answer a question as described in subrule (1), the party may not introduce at the trial the information that was
not provided, except with leave of the trial judge.
(3) The sanction provided by subrule (2) is in addition to the sanctions provided by 34.15 (for default in examination).
[Obligatory Status of Undertakings] (4) For greater certainty, nothing in these rules relieves a party or other
person who undertakes to answer a question from the obligation to honour the undertaking.
[Effect of Lawyer Answering] 31.08 Questions on an oral examination for discovery shall be answered by the
person being examined but, where there is no objection, the question may be answered by his or her lawyer and the
answer shall be deemed to be the answer of the person being examined unless, before the conclusion of the
examination, the person repudiates, contradicts or qualifies the answer.
INFORMATION SUBSEQUENTLY OBTAINED
[Duty to Correct Answers] 31.09 (1) Where a party has been examined for discovery or a person has been
examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that
the answer to a question on the examination,
(a) was incorrect or incomplete when made; or
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(b) is no longer correct and complete,
the party shall forthwith provide the information in writing to every other party.
[Consequences of Correcting Answers] (2) Where a party provides information in writing under subrule (1),
(a) the writing may be treated at hearing as if it formed part of the original examination; and
(b) any adverse party may require that the information be verified by affidavit of the party or be the subject
of further examination for discovery.
[Sanction for Failing to Correct Answers] (3) Where a party has failed to comply with subrule (1) or a
requirement under clause (2) (b), and the information subsequently discovered is,
(a) favourable to the party’s case, the party may not introduce the information at the trial, except with leave
of the trial judge; or
(b) not favourable to the party’s case, the court may make such order as is just.
DISCOVERY OF NON-PARTIES WITH LEAVE
31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for
discovery any person who there is reason to believe has information relevant to a material issue in the action, other
than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.
[Test for Granting Leave] (2) An order under subrule (1) shall not be made unless the court is satisfied that,
(a) the moving party has been unable to obtain the information from other persons whom the moving party is
entitled to examine for discovery, or from the person the party seeks to examine;
(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of
examining the person; and
(c) the examination will not,
(i) unduly delay the commencement of the trial of the action,
(ii) entail unreasonable expense for other parties, or
(iii) result in unfairness to the person the moving party seeks to examine.
[Costs Consequences for Examining Party] (3) A party who examines a person orally under this rule shall serve
every party who attended or was represented on the examination with the transcript free of charge, unless the court
orders otherwise.
(4) The examining party is not entitled to recover the costs of the examination from another party unless the court
expressly orders otherwise.
[Limitation on Use at Trial] (5) The evidence of a person examined under this rule may not be read into evidence
at trial under subrule 31.11 (1).
USE OF EXAMINATION FOR DISCOVERY AT TRIAL
31.11 (1) At the trial of an action, a party may read into evidence as part of the party’s own case against an adverse
party any part of the evidence given on the examination for discovery of,
(a) the adverse party; or
(b) a person examined for discovery on behalf or in place of, or in addition to the adverse party, unless the
trial judge orders otherwise,
if the evidence is otherwise admissible, whether the party or other person has already given evidence or not.
[Impeachment] (2) The evidence given on an examination for discovery may be used for the purpose of impeaching
the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that
witness.
[Qualifying Answers] (3) Where only part of the evidence given on an examination for discovery is read into or
used in evidence, at the request of an adverse party the trial judge may direct the introduction of any other part of the
evidence that qualifies or explains the part first introduced.
[Rebuttal] (4) A party who reads into evidence as part of the party’s own case evidence given on an examination
for discovery of an adverse party, or a person examined for discovery on behalf or in place of or in addition to an
adverse party may rebut that evidence by introducing any other admissible evidence.
[Party under Disability] (5) The evidence given on the examination for discovery of a party under disability may
be read into or used in evidence at the trial only with leave of the trial judge.
[Unavailability of Deponent] (6) Where a person examined for discovery,
(a) has died;
(b) is unable to testify because of infirmity or illness;
(c) for any other sufficient reason cannot be compelled to attend at the trial; or
(d) refuses to take an oath or make an affirmation or to answer any proper question,
any party may, with leave of the trial judge, read into evidence all or part of the evidence given on the examination for
discovery as the evidence of the person examined, to the extent that it would be admissible if the person were
testifying in court.
(7) In deciding whether to grant leave under subrule (6), the trial judge shall consider,
(a) the extent to which the person was cross-examined on the examination for discovery;
(b) the importance of the evidence in the proceeding;
(c) the general principle that evidence should be presented orally in court; and
(d) any other relevant factor.
[Subsequent Action] (8) Where an action has been discontinued or dismissed and another action involving the
same subject matter is subsequently brought between the same parties or their representatives or successors in
interest, the evidence given on an examination for discovery taken in the former action may be read into or used in
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evidence at the trial of the subsequent action as if it had been taken in the subsequent action.
Facts
Issue
Held
Ratio
Facts
Issues
Held
Ratio
Lac d’Amiante du Québec v. 2858-0702 Québec, SCC, CVL, 2001
During the pre-trial process, one of the parties refused to hand over documents, citing concerns about
invasion of privacy and confidentiality. The trial judge dismissed these concerns and demanded that they
hand over the documents. This case asks whether documents presented in the pre-trial process could remain
confidential (except between the parties).
Is there a rule of confidentiality re: information obtained during the pre-trial process?
Yes. This rule of confidentiality, although not explicitly stated in the CCP, can be inferred based on the
evolution of QC civil procedure and the protection of privacy in the QC Charter.

Implicit confidentiality exists in the CML.

An implicit rule of confidentiality does not violate the open court principle.

This rule makes it impossible to use information gleaned during the pre-trial process in other cases –
which helps to protect the privacy rights of the parties.

The right of confidentiality ceases once documents are deposed in trial (unless the judge rules
that they should remain confidential.)

The court can also order that this rule of confidentiality be withheld in certain cases.

The rule only applies to documents that are uniquely private, not those already in the public domain.
Juman v. Doucette, SCC, CML, 2008
Police knew about a civil case where it was clear that some information had been divulged in discovery that
might be useful for the investigation.
Can the information only be used for the purposes of civil litigation?
No. The information is confidential
BCCA: Information is not confidential when it’s criminal. This runs counter to the open court principle. The
SCC overrules this.
Any information disclosed in discovery is confidential, even if it contains information about
criminal activity.





Notes
The pre-trial discovery is an invasion of privacy.
The purpose of discovery won’t be fulfilled unless we promise confidentiality.
The pre-trial process does not place in open court, and therefore confidentiality is not contrary to the
open court principle. We must respect that many civil cases don’t actually go to trial because of
discovery. Here, the case was settled, and what was discovered remains confidential.
The reason behind open courts is judicial accountability. That’s not at stake here.
Short of imminent public danger or concerns about a child’s welfare (i.e., short of concerns
about future dangers, not past acts), information obtained through discovery is confidential.
N.B. Confidentiality is distinct from issues of the party’s right to remain silent and to not self-incriminate.
CLASS ACTIONS
PRESENTATION BY ARTHUR WECHSLER



Class actions make sense in situations where you want to stop an insidious wrong. They are meant to address
a pattern of behaviour that is insidious in cases where individual loss is too small for individuals to find it
worthwhile to sue
See: articles 999-1051 CCP
Class actions always go to s.96 Superior Courts (art. 1000 CCP)
Development of the Law in Quebec

Before 2003, there was an affidavit requirement – which allowed the DFs to examine the PF out of court.
Examinations on discovery can take days, so DFs would basically just discover the shit out of the plaintiffs. The
DFs could question the affidavit maker and the PL could then ask questions, and experts could be brought in…
before you knew it, you had a trial process happening at the authorization stage.

In January 2003, Quebec made a series of amendments to the authorization hearing:
o
Affidavit no longer required (ergo, DF can no longer question the PL before the hearing)
o
Defendants have no right to file a written contestation
o
Defendants have no right to field an expert report before the hearing
o
Evidence is admissible only if the judge considers it appropriate.

Constitutional challenges to these amendments were rejected by QCCA in Pharmascience.

Because there is no longer an affidavit requirement, the motion for authorization is basically just a motion to
proceed. There is no evidence or expertise required. The court is merely looking for a prima facie case.

This has opened the door to many, many class actions in QC. In 2009, a special class action division of the
Superior Court was opened to deal them.
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Phase 1: Motion for Authorization (Quebec) / Motion for Certification (Ontario)
Who may bring a class action? Individuals, non-profit organizations, and companies with less than 50 employees (as
of the 2003 amendments in Quebec)
1003 CCP: The court authorizes a class action if the suit meets four criteria:
1. Recourses raise identical or similar questions of law or fact
2. The facts seem to justify the conclusions sought (i.e. prima facie case)
3. The composition of the group makes individual lawsuits are difficult or impractical
4. The petitioner adequately represents all the members
N.B. #3 does not ask whether it would be better to have a individual suits, just if a class action would be impractical.
E.g. If there are 100 people in a building, it wouldn’t be tricky to list them all in a representative claim. But when there
are 1000 taxi drivers, and you don’t know who they are, you need a class action.
The process in Ontario and the rest of CML Canada is very different from Quebec. There is a fifth criterion to the
test for certification: judicial discretion.
5.


The class proceeding must be the “preferable procedure”
The court is allowed to say that even if case satisfies the first four criteria, it is “not the best way forward.”
When will it be the preferable procedure? Three policy objectives:
o
Judicial economy: Class actions are not always the most efficient use of judicial resources. They
require considerable judicial oversight; every procedure must be approved by a judge.
o
Access to justice: What if there was another (better) way for victims to attain access to justice?
o
Modification of behaviour: Will this class action actually help people, or will it only help the lawyers?
Recall, the lawyer takes 30% of the settlement, and what’s left is divided among the class. The good
part of the class action is that it deters future bad behaviour (e.g. it takes a bad drug off the market, or
makes AMEX change their interest rates.)
Quebec: Is there room for judicial discretion at the authorization stage?

Unlike in Alberta, Quebec judges do not have residual discretion – i.e., if the claim passes the four steps, the
judge has to authorize it. However, judges want discretion and they find ways to exercise it.

The judge retains a discretionary “margin of maneuver” with regard to interpreting each step.

Should we consider 4.2 CCP (proportionality) at the stage of authorization, or is this tantamount to bringing the
CML “preferable procedure” test in the back door?

Marcotte: Discretion (based on 4.2 CCP) lies in interpreting each step, not at end.
o
The dissent in Marcotte cautions against making the Quebec test similar to the Ontario test: “4.2 is not
equal to 1003. You cannot say that it is a not a preferable procedure. All you ask is whether it is a
difficult or impractical procedure.”
Phase 2: After Motion is Authorized




Notice requirements: Because class actions affect a lot of people, you have to publish a notice in the paper.
Right of appeal in Quebec: Plaintiffs can appeal if a motion for authorization is dismissed (10.1 CCP)
o
N.B. DFs cannot appeal the authorization. This is a one-sided right of appeal.
o
This one-sided appeal mechanism was also subject to challenge – similarly rejected by QCCA
o
Appeal is a basic right, but it’s okay to limit the right to appeal to the petitioner at the authorization
stage (since the class action suit on the merits is appealable on both sides.)
Right of appeal in Ontario: S. 30 of the Class Proceedings Act holds that a party may appeal to the divisional
court from an order refusing the certification of class actions.
o
I.e., If a superior court justice orders certification, the DF can appeal it with leave.
Opt-outs: There is always a delay for motion class members to opt out of the suit.
Phase 3: Class Action Fun Time



Art. 1011 CCP and seq. lays out the rules for Quebec.
Once the motion for authorization has been granted, you have 90 days to go ahead with the suit.
The judge that heard the motion for authorization also hears the case.
Defining Common Injury:

How do you define members of a class? E.g. Malhab: “Arab” is not sufficiently clear to constitute a class (though
“mother tongue Arabic speakers” is fine.) Sometimes the court says there is no common class.

Weschler: Class action was the wrong forum for the action in Malhab
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

As long as there is a connection between the members of the group, you can have the class action. All members
of the class have to be raising the same issue, i.e., they must all have suffered the same wrong.
o
Each member of class doesn’t have to suffer same amount of injury
o
Some members of the class could be barred by limitation periods
N.B. In a hip replacement case, it’s easy to determine individual injuries and categorize plaintiffs. In contrast,
with a credit card case, you don’t know how much each person paid until they step forward.
Two Types of Recovery:

Collective recovery (1031 CCP): This mode of recovery is for when you know with sufficient accuracy how
much each person is going to claim.
o
N.B. People can opt out (e.g. if they think the damages would be bigger if they sued individually.)

Individual recovery (1037 CCP): This mode is used where it’s more expedient to render judgment on
individual claims. People have one year from the verdict to file a claim for their individual damages.
1031 CCP: The court orders collective recovery if the evidence produced enables the establishment with sufficient
accuracy of the total amount of the claims of the members; it then determines the amount owed by the debtor even if the
identity of each of the members or the exact amount of their claims is not established.
1037: This chapter applies where it is expedient to render judgment upon the individual claims of the members.
1038: When the final judgment acquires the authority of res judicata, a member may, within one year following the
publication of the notice provided for in article 1030, file his claim at the office of the court of the district in which the
class action was heard or of any other district as determined by the court.
1039: The court decides the claim of the member or orders the clerk to render judgment in accordance with the terms
and conditions it determines. (Paragraph 2) The court may, if it deems it necessary in the interest of justice and of the
parties, determine special modes of proof and procedure.
1040: The defendant may urge a preliminary exception against a claimant which article 1012 prevented him from moving
earlier. (N.B. 1012 prevents the DF from raising a preliminary exception against the representative plaintiff unless the
exception is common to the class.)
Issues with Class Actions
Costs and Fees:

Class actions are really expensive, and can take up to ten years.

Firms sometimes use their own resources because the clients don’t have the resources to proceed. This gives rise
to contingency fee arrangements (usually 20-25%). Some firms refuse to work on the CFAs, so in Quebec, the
court awards a certain rate per hour from the Fonds d’aide aux recours collective (a provincially-sponsored fund
that provides assistance for class actions.)

In Quebec, judges look at how much $$ the lawyers are making to ensure that they are adequately and fairly
helping the class. If they are obviously doing this just to get paid, then they’re abusing the system.

Settlement is a huge issue. One lawyer might represent thousands of people in the case, so usually there is a
judicial approval process.

There’s no litigation on costs in QC because the tariffs and costs are so low – but this is not so in Ontario. E.g.,
By the time Kerr v. Danier Leather got to a hearing, the costs had gotten extremely high. (Remember: In
Ontario, costs are 40-60% including lawyer’s fees.) Daniel Leather won, and Kerr had to pay costs.
“First to the Trough”

This lovely phrase refers to the notion that the first person to take the class action gets to run with it. This is the
system in Quebec.

Often, a lawyer puts just anyone as the representative plaintiff on the first motion and then amends the class
representative or petitioner later.

Other provinces do not have this set-up. In Ontario, you can have multiple class actions instituted on the same
case. When this happens, either the DF or the PL take a motion for carriage, i.e. to have one petitioner take
the case for all. The judge has to decide which case is the best (with regard to the lawyers, the ability to finance
the case, etc.)
Class Actions vs. Arbitration

Can a consumer bring a class action that is proscribed by an arbitration clause in the adhesion contract?

In Dell, the court not only enforced an arbitration clause in an adhesion consumer contract, but it nullified a consumer
class action. Arbitration trumps all, subject to two jurisdictions in Canada – QC and ON, where they have
amended their consumer laws to explicitly prevent arbitration clauses from ousting a consumer’s right to file a CA.

See: art. 11.1 Quebec CPA; arts. 7 and 8 of Ontario RCP
National Class Actions

Can you represent someone in QC but sue across the country?
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

In the conclusions of the authorization hearing, the petitioner may ask the judge to authorize the class action
across the country. The judge can say that whoever is living in Canada can make a claim under that petitioner’s
class action. However, this is tricky because it is not really clear who can file and who they can target.
Test for National Class Actions:
o
Is there a factual connection between all people affected across Canada?
o
Would a national class action be more efficient? Is the case too complex?
o
Can there be cooperation between judges between provinces and plaintiff’s lawyers across provinces?
Constitutional Issues
S. 23 QC Charter: Every person has a right to a full and equal, public and fair hearing by an independent and impartial
tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.


In Quebec, the defendant has no right of appeal against the authorization of a class action suit. In Ontario, appeal in
this situation is possible with leave.
The constitutional challenge was rejected in Pharmascience because the ultimate judgment was appealable.
Alternatives to the Class Action: Representative Actions
Representative Actions in Quebec
59 CCP: A person cannot use the name of another to plead, except the State through authorized representatives.
Nevertheless, when several persons have a common interest in a dispute, any one of them may appear in judicial
proceedings on behalf of them all, if he holds their mandate. The power of attorney must be filed in the office of the court
with the first pleading; thereafter the mandate cannot be revoked except with leave of the court and is not affected by
the death or change of status of the mandators. In such case, the mandators are jointly and severally liable with their
mandatary for the costs.
Tutors, curators and others representing persons who are not able to fully exercise their rights, plead in their own name
in their respective capacities. This also applies to an administrator of the property of others in respect of anything
connected with his administration and to a mandatary in the performance of a mandate given by a person of full age in
anticipation of his incapacity to take care of himself or administer his property.



How is 59 CCP different from class actions? Under 59 CCP, all the people are listed in the action. If the “class” is
limited and you know everyone in it, you don’t need to file a class action.
What about the airplane that went off the runway? It could have been representative action, but it proceeded as
a class action. (This cause might have failed the 5th step of the CML test of authorization though.)
In CML Canada, you can have a class action without class action legislation. (This happened in PEI.)
Important Powers of the Court

The judge can redefine the class (Malhab)
1005 CCQ: The judgment granting the motion:
(a) describes the group whose members will be bound by any judgment;
(b) identifies the principal questions to be dealt with collectively and the related conclusions sought;
(c) orders the publication of a notice to the members
The judgment also determines the date after which a member can no longer request his exclusion from the group; the
time limit for exclusion cannot be less than 30 days nor more than six months after the date of the notice to the
members. Such time limit is peremptory; the court may nevertheless permit the exclusion of a member who shows that
in fact it was impossible for him to act sooner.



There is one judge who manages the entire class action from start to finish.
The judge is not passive in class actions; s/he can intervene quite dramatically.
The court must approve the settlements and the lawyers’ fees.
o
In a private settlement, parties can keep an agreement secret by not homologating it.
o
This is not true in class actions. The money is significant and the potential for abuse is high.
o
Judges are not rubber stamping the lawyers’ fees because, the more they make, the less goes to the class.
(See: Landry v. CSN, art. 1025 CCP)
Ontario Rules, Rule 12: Class Proceedings and Other Representative Proceedings
12.01 In rules 12.02 to 12.06, “Act” means the Class Proceedings Act, 1992; (“Loi”); “Foundation” means The Law
Foundation of Ontario; (“Fondation”); “Fund” means the Class Proceedings Fund of the Foundation. (“Fonds”)
12.02 (1) In a proceeding commenced under subsection 2 (1) of the Act, the title of the proceeding shall include, after
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the names of the parties, “Proceeding under the Class Proceedings Act, 1992”.
(2) In a proceeding referred to in section 3 or 4 of the Act, the notice of motion for an order certifying the proceeding,
the order certifying it and all subsequent documents shall include, after the names of the parties, “Proceeding under the
Class Proceedings Act, 1992”.
[Discovery of Class Members] 12.03 (1) For the purpose of subrule 31.11 (1) (reading in examination), a class
member who is examined for discovery under subsection 15 (2) of the Act is examined in addition to the party.
(2) Rule 31.10 (discovery of non-parties) and clause 34.15 (1) (b) (sanctions for default or misconduct) do not apply
when a class member is examined for discovery under subsection 15 (2) of the Act.
[Costs] 12.04 (1) This rule applies to class proceedings in which the plaintiff or applicant has received financial support
from the Fund.
[Notice to Foundation, Opportunity to Participate] (2) If the court is of the opinion that the defendant or
respondent may be entitled to an award of costs, the court shall direct the plaintiff or applicant to give notice to the
Foundation.
(3) When the court has made a direction under subsection (2),
(a) no order for costs or assessment of costs shall be made unless the Foundation has had an opportunity to
present evidence and make submissions in respect of costs; and
(b) the Foundation is a party for the purpose of an appeal in relation to costs.
[Failure to Accept Defendant’s Offer] (4) Subrule 49.10 (2) (costs consequences of offer) does not apply.
[Contents of Judgments And Orders] 12.05 (1) A judgment in a class proceeding or an order approving a
settlement, discontinuance or abandonment of a class proceeding under section 29 of the Act shall contain directions
with respect to,
(a) the distribution of amounts awarded under section 24 or 25 of the Act, and the costs of distribution;
(b) the payment of amounts owing under an enforceable agreement made under section 32 of the Act between
a lawyer and a representative party;
(c) the payment of the costs of the proceeding; and
(d) the payment of any levy in favour of the Fund under clause 59.5 (1) (g) of the Law Society Act.
(2) An order certifying two or more proceedings as a class proceeding under section 3 of the Act or decertifying a class
proceeding under section 10 of the Act shall contain directions with respect to pleadings and other procedural matters.
[Leave to Appeal to be Obtained from Another Judge] 12.06 (1) Leave to appeal to the Divisional Court under
subsection 30 (2), (9), (10) or (11) of the Act shall be obtained from a judge other than the judge who made the order.
[Order Awarding $3,000 or less or Dismissing Claim — Grounds] (3) Leave to appeal from an order under
subsection 30 (9), (10) or (11) of the Act shall not be granted unless,
(a) there has been a miscarriage of justice; or
(b) the order may be used as a precedent in determining the rights of other class members or the defendant in
the proceeding under section 24 or 25 of the Act and there is good reason to doubt the correctness of the order.
[Proceeding Against Representative Defendant] 12.07 Where numerous persons have the same interest, one or
more of them may defend a proceeding on behalf or for the benefit of all, or may be authorized by the court to do so.
[Proceeding By Unincorporated Association Or Trade Union] 12.08 Where numerous persons are members of an
unincorporated association or trade union and a proceeding under the Class Proceedings Act, 1992 would be an unduly
expensive or inconvenient means for determining their claims, one or more of them may be authorized by the court to
bring a proceeding on behalf of or for the benefit of all.
Facts
Issues
Held
Ratio
Hollick v. Toronto, CML, SCC, 2001
Hollick is suing Toronto for damages from a landfill. He is defining the class as all people who live within a
certain quadrant neighbouring the landfill.
Does this case meet the requirements for class action prosecution?
No.
Class actions provide 3 advantages:
1) Aggregate similar individual actions and serve judicial economy by avoiding unnecessary duplication in
fact-finding/legal analysis
2) Improve access to justice by distributing fixed litigation costs amongst a large number of class
members and allowing the prosecution of claims that any one member couldn't prosecute on his own
3) Serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour
to take full account of the harm they are causing, or might cause to the public.

Courts thus should not take an overly restrictive approach to the legislation, especially at the
certification stage.

The Ontario Law Reform Commission suggested a “preliminary merits test.” This was rejected. The
certification stage is not meant to be a test of the merits of the action – its only focus is the form of the
action. The question is not whether the claim is likely to succeed, but whether the suit is appropriately
prosecuted as a class action.
Ontario's Requirements
(a) Cause of action: Yes
(b) Identifiable class: Yes

The appellant defined class by reference to objective criteria. The class is bounded, and it is possible to
objectively measure whether someone is member of class without reference to merits of action.
(c) Claims of class members raise common issues: Yes
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



The underlying question is whether allowing the suit to proceed as a class action will avoid duplication of
fact-finding/legal analysis.
An issue is common only where its resolution is necessary to the resolution of each class member's claim,
i.e., if it is a substantial ingredient in each of class member's claims. If each class member has a claim
against the respondent, some aspect of the liability must be common within the meaning of s. 5(1)(c).
PL must show rational connection between the class as defined and the common issues.
o
Here, appellant says that large number of complaints re: landfill proves this rational connection.
But there were only 150 complaints in 7 years, and the class is supposed to have 30,000 people in
it. There should be a longer history of complaints (e.g. town hall meetings and stuff).
o
It's usually easy to see the rational connection. Here, it's harder because it’s not clear that
everyone who lived in that area was injured.
Hollick would have to show that the class was not unnecessarily broad (i.e. that the class could not be
defined more narrowly without arbitrarily excluding some people who share the same interest in the
resolution of the commercial issue).
Sub-question: to what extent should the class representative be allowed or required to introduce
evidence in support of a certification motion?

The class rep is required to come forward with sufficient evidence to support certification, and allow
opposing party opportunity to respond with evidence of its own.

This does not require affidavits from class members, just from the representatives.

Hollick met his evidentiary burden (with complaint records, etc.) and showed sufficient basis in fact to
satisfy the commonality requirement.
(d) Class proceeding is preferable procedure for resolution of common issues: NO.

Consider the 3 advantages: (a) judicial economy, (b) access to justice (c) behaviour modification

"Preferable" is meant to be construed broadly:
(a) whether the class action would be a fair, efficient, and manageable method of advancing the claim
(b) and whether a class proceeding would be preferable (to joinder, test cases, consolidation, etc.)

Look at the common issue, not just the common claims. (I.e., There is a higher threshold than just “is
this the best way of solving the members' claims”, but lower than in the U.S., where it has to be “the best
way to resolve the controversy.”)

Here: a class action is not the preferable means of resolving class members’ claims:
(a) Judicial economy: the common issue is negligible compared to individual issues. Some areas
were probably more affected than others.
(b) Access to justice: If it’s true that the claims are so small that they aren’t worth pursuing
individually, maybe the Small Claims Trust Fund would be better (a no-fault scheme that can
provide redress quickly). If the SCTF is too small to handle the claims, then they should just bring
individual actions.
(c) Behaviour modification: Without class actions, those who cause widespread but individually
minimal harm may not take into account full costs of conduct. Either the SCTF or individual actions
will force the City of Toronto to be accountable, so it’s unnecessary to have a class action.
 Also, Ontario has a policy mechanism allowing people to proceed to an Environmental
Commission for remedies. (N.B. The stipulations were not met here, but the door is still
open for environmental class actions!)
Class
Notes
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Facts
Issues
Held
Ratio
This is an example of where people objectively met the criteria, but didn’t get the class action.
The court could also have said that there is no common cause.
Another issue that comes up in this case is recovery: the Court said that plaintiffs here could be
compensated by Small Claims Scheme set up by landfill – but how is this possible, given that you can’t
decide ahead of time how much a class action is worth?
As long as there is a connection between the members of the group, not having the same amount of
damage each shouldn’t justify refusing a class action.
Malhab v. MetroMedia CMR Montreal Inc., CVL, QCCA, 2003
Malhab is a cab driver. He is requesting authorization to launch a class action suing Metromedia for defamatory
statements made against “Arab and Haitian cab drivers.” The class action would be all people who were taxi
drivers on the island of Montreal on Nov. 17, 1998 and whose mother tongue is Arabic or Creole.
Does the class action meet the requirements for authorization?
Yes.
The Superior Court held that he failed on steps (b) and (c) of art. 1003, arguing that recourse of defamation
and recourse of class action are incompatible, since supposedly, you can only defame individuals.
The following questions of law/fact were posed: Was the dude who made the statements an employee of
Metromedia? Did he make those statements? Were the impugned statements discriminatory? Can
Metromedia be exonerated because there was no reference to individuals, but just to the group? What is the
amount that each person gets?
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Is a class action an effective form of recourse?

The existence of the Human Rights Commission does not preclude people from going straight to the courts
if they want to.

1003 has an imperative character: if the 4 requirements are met, then the authorization must be given

To see if the case meets 1003(b), two questions need to be answered:
o
(1) Can there be such a thing as group defamation, where the defamation is serious?
 For a defamation claim, you must show that the speaker committed fault and that the
person suffered an injury to their reputation. This can be experienced by individuals as
well as groups (Prud’homme)
 The individual person can be defamed by virtue of his membership in a group. But the
injury has to be individual, not just collective. The defamation must be personal.
 There is individualization here because the plaintiff can demonstrate the specificity of
targeted group, and specificity of injuries. Appellant felt he was personally accused of
uncleanliness, incompetence, and corruption solely because he was Arab/Haitian. If a taxi
driver Arab or Haitian, he will himself suffer in public opinion, and suffer moral damages.
 Collective defamation has two levels: it must affect (a) popular opinion of collective and (b)
popular opinion of individuals who are member of the collective.
 It is very hard to earn a living as a taxi driver, esp. if you are racialized.
 Per Ortenberg, there are three possible situations of group defamation:
 Defamation is against a large group and gets lost in the crowd? No compensation
 Defamation is against a group, but some members are designated/easily
identifiable? Those members get compensation.
 Collective defamation is against a smaller group? It’s easy to assume that each
person is personally attacked. All members get compensated.
o
(2) Is there incompatibility between class actions and defamation actions? NO.
 Here, any taxi driver who is Arabic/Haitian can show that he had been targeted and
harmed by defamation (i.e. Each one could bring an individual case against the DF.)
 Class actions are meant to improve efficiency & ameliorate access to justice
 Class actions are a procedural remedy – they do not add anything to substantive law.
 We allow physical injury to be the subject of a class action – and there is nothing in 1457
saying that we should take moral damage any less seriously. It should thus be permitted
to be topic of class action as long as the injury is certain, direct, and real.
 Moral injury can be more pernicious than physical injury, precisely ‘cause it is less apparent

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Class
Notes
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Facts
Issues
Held
Ratio
Would permitting class actions for defamation affect freedom of expression? NO.
o
The defamatory nature of the statements still has to be analyzed from the perspective of the
‘ordinary citizen’ (i.e. objective norm.) This limitation protects freedom of speech
Does the composition of the group satisfy 1003(c)? YES.
o
The judge has lots of discretion when authorizing a class action per 1005 CCP.
o
There are probably about 1000 taxi drivers affected – this is a high enough number to make
application of CCP 59 or 67 difficult.
o
Who is Arab or Haitian? Define it here based on the asshole’s own statements – i.e., all persons
who held a taxi permit on Nov. 17, 1998 whose mother tongue was Arabic or Creole.
This is an example of an appellate court intervening and redefining the class.
The judge says that she doesn’t consider whether the case has merit. But there is no such thing as group
defamation in Canada – hate speech is supposed to address this.
This case was authorized, went back to trial, cabbies won, reversed on appeal 2-1, now heading to SCC.
Lallier v. Volkswagen Canada Inc., CVL, QCCA, 2007
Appellant buys a used Volkswagen in 2001. Soon after, the interior of the door starts falling off. He finds out
that this is a common problem in Volkswagens. He starts a class action suit, naming all people (physical or
legal) who owned/have owned a Volkswagen Golf or Jetta built between 1993 and 1999 in which the interior of
the doors is falling off.
Does the class raise identical, similar or related questions of law or fact (per 1003 CCP)?
No
1003 CCP does not allow for overbroad, heterogenous or circular definitions of the class.
1003(a)

It's wrong to assume that you can just go to court with an overbroad class, and have the judge correct it.
The judge has this power, but it's discretionary, so that overbroad classes can be thrown out.

The class in this case is circularly defined – i.e. the class definition depends on the very issue being
litigated. The class is anyone with "premature" detachment of the panels, but they are suing to determine
what premature means, leaving the class essentially undefined.

The class is not sufficiently narrow that identical results could be expected among the litigants. Some
members could win while others would not, depending on why the panels fell out prematurely. It's simply
too broad a category, raising too many potential factual scenarios.
1003(b)

It’s not technically necessary to deal with (b) since the case fails on (a); however, the wording of the
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class definition does not require that the unsticking of the panels be serious, nor that it exist prior to
the possible class-members' acquisitions of the cars. The facts do not justify the conclusions sought.
Facts
Issues
Held
Ratio
Facts
Issues
Held
Ratio
Class
Notes
Facts
Issues
Held
Landry v. Syndicat du Transport de Montreal, CVL, QCSC, 2006
Landry started a class action against the STM for damages caused by striking janitorial workers. Landry went
to a settlement conference and came to an agreement that the class would get $925K. He put a notice out in
the paper calling on class members to come to the homologation, but nobody showed up. They decided there
that the lawyers should get $277,500 for their work (based on their CFA). The STM appealed, saying the
lawyers should not get so much of the payout.
Can the court intervene in this transaction, and, if yes, is it reasonable?
Yes, courts can intervene. The lawyers’ fees here were unreasonable.
Courts have the ability to intervene to render the division of awards judgments reasonable, even in
settlements, if they are unreasonable.

The transaction as a whole was reasonable. The lawyers worked 1000 hours, put in considerable
work, took on a lot of responsibility and risk, and are entitled to their standard $150/hour fee.
However, asking for an extra $125,000 is not reasonable – so the court pares it back to $225K.

4.2 CCP allows them to do this. Procedural acts have to be justified considering the circumstances.
Kerr v. Danier Leather Inc., CML, SCC, 2007
Danier Leather made am IPO based on projected numbers of its fourth quarter. At the time, the projected
numbers were an accurate representation of the company’s projections. However, before the IPO closed, an
internal analysis showed that the numbers would be lower – but Danier did not disclose it. The suit goes to
court, Danier wins, and costs were awarded against the appellant.
Did the Court of Appeal err in rejecting the appellants’ demand for costs?
No.
The losing party pays costs in ON – even in class actions.

The CA held that there was no more reason for Danier to bear the costs than in any other commercial
litigation. Kerr argued that because this was a class action of public interest, as well as for general
principles of access to justice, they should be awarded costs — per s.31 of Courts of Justice Act.

The award of costs is at the discretion of the Court of Appeal, and the SCC should thus only interfere if
gross error.

Though many Canadian investors will undoubtedly benefit from the clarity established by the decision
in this case, this does not change the commercial nature of the litigation.

There is no need to derogate from status quo cost allocation.
The SCC distinguishes this case from Gariepy, which was more of a David and Goliath scenario, and thus
warranted derogation. Here, not dealing with a historically disadvantaged group and gross inequality of power.
Marcotte v. City of Longueuil, CVL, SCC, 2009
To alleviate the financial shock the municipal amalgamations of 2000 might entail, the National Assembly
established a scheme to gradually equalize the tax burdens of the amalgamated sectors over a period of 20
years. The Charter of Ville de Longueuil capped yearly increases in each sector of the new City of Longueuil at
5%, but did not establish a direct ceiling for the tax imposed on each unit of assessment. The Charter
provided for a similar sector-by-sector ceiling on revenues derived from the business tax imposed on
businesses. In 2006, four of the amalgamated municipalities were reconstituted and separated from the
territory of the City of Longueuil. Two ratepayers, M and UP, who were dissatisfied with the assessment of
their tax burdens before the demerger of their respective sectors, applied separately for authorization to
institute class actions to quash the municipal by-laws imposing property taxes and the business tax for 2003,
2004 and 2005 in four sectors of the municipality and obtain a refund, in respect of 2005, of the taxes that had
been paid by the ratepayers covered by the proposed actions. They also contested resolutions of the municipal
council related to those by-laws.
The QSC and the QCA denied them authorization on the basis that even though M and UP had established
prima facie cases, the QCA had consistently held that class actions could not be used to challenge the validity
of a municipal by-law. Since the result of an individual action in nullity would apply in respect of all ratepayers,
if such an action was successful, the declaration of nullity would achieve the desired result in respect of all
ratepayers without the need for a class action.
Can Marcotte institute a class action?
No. Go home. (5-4)
LeBel J. (majority)

In light of 1003 CCP, it was not open to M and UP to institute class actions in order to have the municipal
by-laws declared to be null and to recover payments made under them.

Yes, there are common questions (a) and the representatives are qualified to represent the groups (d), but
the existence of a prima facie case (b) and the composition of the groups (c) having regard to the nature
of the conclusions being sought, are problematic.

Because of the way they are worded, the conclusions being sought are unenforceable as regards the
city's obligation to refund. Although a declaration of nullity would apply in respect of all citizens and
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
ratepayers in the municipality in question, the quashing of the by-laws would not result in a right to have
the taxes refunded, as it would not immediately give rise to liquid and exigible claims. In light of the
taxation and budgetary system governing municipalities such as the city, the declarations of nullity would
entitle the members of the groups to a recalculation of their property or business taxes. Only such a
recalculation would give rise to a liquid and exigible claim, which would cause prescription to start running
in respect of an action for restitution. The proposed class actions would thus be of no assistance in
interrupting prescription, since prescription has not yet started to run.
The requests that all property and business taxes paid in the four sectors covered by the proposed class
actions be refunded do not appear to be compatible with the principles of the CCQ governing the restitution
of payments not due and the restitution of prestations. Whereas M and UP received municipal services
throughout 2003, 2004 and 2005, the dispute over the calculation of their taxes concerns only a portion of
what they paid. It is therefore unlikely that the amount of their claim would correspond to the
amount they are seeking.
Given this legal framework and this context, the conclusion being sought does not meet the prima facie
case requirement of art. 1003(b) C.C.P.
The action in nullity is also problematic in relation to the operation of certain procedural rules governing
the establishment of and changes to the group covered by a class action.
Because such a declaration would apply to all ratepayers, members of the group would not be able to
withdraw effectively from the action in nullity. This is contrary to the rules respecting class actions.
The class action is not an appropriate procedure for seeking to quash a municipal by-law.
Although the actions M and UP wish to institute fall undeniably within the ambit of art. 33 C.C.P., other
causes of nullity, such as formal defects and irregularities, would instead fall within the framework of
annulment proceedings over which the Superior Court is granted jurisdiction in statutes relating to
municipalities. Recourse to the class action in such situations could hamper the conduct of proceedings
that are in principle simple and quick, and would hardly be consistent with the principle of proportionality
set out in art. 4.2 C.C.P., according to which litigation must be consistent with the principles of good faith
and of balance between litigants and must not result in an abuse of the public service provided by the
institutions of the civil justice system.
Deschamps J. (dissenting)
The application of art. 4.2 C.C.P. to the conditions for authorizing a class action does not support the
conclusion that a class action would in this case be inconsistent with the principle of proportionality. Since the
proposed actions meet all the conditions set out in the C.C.P., they should have been authorized.
Article 4.2 C.C.P. on the principle of proportionality does not supplement the criteria for authorizing a class
action set out in art. 1003 C.C.P. and therefore does not confer on the court a discretion separate from the one
flowing from the latter provision. Proportionality is a guiding principle of civil procedure that cannot be applied
independently. The purpose of art. 4.2 C.C.P. is to reinforce the authority of the judge as case manager. The
effect of the principle of proportionality on art. 1003 C.C.P. is to give concrete expression to and to reinforce
the discretion judges are already recognized as having when reviewing each of the four conditions for
authorizing a class action. The enactment of art. 4.2 C.C.P. did not have the effect of requiring applicants for
authorization to show that the class action would be the preferable procedure for resolving common issues.
The effect of requiring applicants to prove this would be to limit access to the class action.
In this case, a thorough analysis by the courts below of the four conditions for authorizing a class action was
required. The actions easily meet the similar questions requirement of art. 1003(a), and this is not a case in
which a judge should exercise his or her discretion to decide whether to authorize or refuse the actions. What
is in issue for all the members relates to the city’s compliance with the ceiling on increases in the tax burden
and the business tax. The same by-laws are in issue for all members of the groups. The questions of law are
therefore identical. The only difference in M’s appeal lies in the factual demonstration based on the specific
figures for each of the four sectors. Moreover, the calculations are the same for every ratepayer in a given
sector. At stake for all the members is the right to recover taxes paid.
The claims of M and UP have a “good colour of right” as required by art. 1003(b) C.C.P. This is, prima facie, a
case of excess of jurisdiction in which it is alleged that the exercise of taxing authority was inconsistent with
the Charter of Ville de Longueuil. The information that has been provided is, prima facie, capable of supporting
an inference that the 5% ceiling on yearly increases in the tax burden and in the business tax was exceeded.
As for the impugned resolutions, they identify specific amounts rather than prescribing, as required by s. 87.5
of the Charter, rules for calculating the part of the tax increase resulting from the constitution of the city.
Moreover, the remedy — a tax refund — sought by M and UP represents an application of the general rule on
quashing an administrative act. The amount paid by each ratepayer would be easy to determine. It would be
a liquid amount whose exigibility would hinge solely on an order of the court declaring the administrative act to
be null. If a plaintiff contends that a public body has acted contrary to an enabling statute, the court cannot
dismiss the action on the basis that the conclusions sought would have dire consequences. To hold that the
courts have such a discretion would amount to granting immunity to municipalities, which would be
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inconsistent with the principle of the division of powers. Finally, the question whether the action for restitution
is prescribed in respect of 2003 and 2004 requires an assessment of the facts, and it would be unwise to
answer it at the stage of the application for authorization. The trial judge will be able, upon application, to
reconsider this question.
Class
Notes
Regarding art. 1003(c) C.C.P., no explanation has been given as to why it might be more practicable to pursue
the claim for restitution — which is common to all the members — by mandate or by joinder. It is incorrect to
characterize the action as a simple request to quash the by-law and to state that bringing a class action would
be pointless because the judgment would have effect with regard to everyone. It is true that, acting
individually, M and UP might obtain declarations of nullity that would apply in respect of all ratepayers, but if
their actions for the recovery of taxes were successful, only M and UP would benefit from orders to refund
taxes. The actions in restitution of the other ratepayers could be prescribed even before a final judgment was
rendered in the individual actions of M and UP. Article 2900 C.C.Q. on the interruption of prescription does not
apply to an action for the recovery of municipal taxes, because the possible claim of the ratepayers is not
indivisible and each ratepayer has an individual and distinct obligation to the city to pay his or her own taxes.
Finally, there is no requirement in Quebec law that the members of a class action group not have conflicting
interests. In Quebec, members with divergent interests can ask to be excluded from the action: arts. 1005-7
C.C.P. In the cases at bar, it is clear that it would be far more practicable to proceed by way of class actions
than by way of individual proceedings. The application of the principle of proportionality here enhances the
usefulness of the class action, which clearly facilitates access to justice.
Jukier:
The court is saying here that one person could challenge it, and then every one else could apply for their
rebates. They satisfy 1003, all 4 requirements. They use Art. 4.2 CCP to say that a class action is not an
appropriate way to pursue this issue (Jukier feels that there is a slippery slopes argument).