Summary Tables for JICP (Hamilton 2001) -- given to me by P. Pound -- Modified & Updated by Marina Bezrukova
This is your lifesaver for the EXAM! Best use if printed in colour.
1. ARBITRATION
QUEBEC / ONTARIOCosts / P. 31 generally: v. expensive. P. 32 $1 mil. Lawsuit a the ICC $40-160K / Advantages: cost (?), speed, create own procedure, choose arbitrator, indicate possible outcomes, private process, positing future relationship
Recognition of Submission/Undertaking to
Arbitrate / Courts will enforce K to arbitrate (940.1 CCP; Zodiac v. Polish People’s Republic) / S.7 Arbitration Act: Court shall suspend civil action where there is an undertaking to arbitrate. There are exceptions.
Art. 3148(2):Quebec courts do not have jurisdiction where parties agree to arbitrate, unless D submits to Qc JD. /
- invalidity of K
- subject matter is not capable of being arbitrated
- etc.
Enforcement of Arbitration Awards / 941 CCP: Decision of an arbitrator is enforceable only when it has been confirmed by a court
2. LAWYERS' FEES p. 20ff
QUEBEC / ONTARIOLimits on FEES
p. 20 / 3.08.01-Que. Code of Ethics: fees demanded must be "fair and reasonable".
3.08.02 Loi de Barreau: Factors to consider when determining what is reasonable: (1) time spent (2) L's experience (3) complexity (4) importance to client (5) ability to pay (6) responsibilities assumed (7) result (8) court costs.
* A v. B.: fee reduced b/c 2nd year associate costs less / CBA Rules of prof'l conduct, Rule 10: fee stipulated must be fully disclosed, fair and reasonable.
* Re Solicitors(great matrimonial settlements): factors = same as in Qc. Time is not always key; ability to pay works only as a limitation, not expansion factor.
* Alexander v. McKenzie: solicitor is bound by initial promise unless advised the client of a change. Must keep client informed.
CONTINGENCY FEES
p. 22 / s.3-Tarriff on Certain Extrajud Fees of Advocates
* Must be a written K (Alexis Nihon)
* max amount recoverable is 30%.
* client liable for other disbursements
Cont. fees do not violate prohibition against acquisition of litigious rights found in art. 1783 CCQ. (Faribault argues this point) p. 23 / In principle illegal b/c of champertymaintenance principles. Rule 10 Cdn. Bar Ass. Code of Ethics: as a matter of ethics, not improper. S. 28 Solicitors Act: Cont. fee prohibited in Ontario.
Exception is the class action suit (s.33 Class Proceedings Act).
• S. 33 introduces the multiplier of base fee.
• need a written agreement. Multiplier is decided either by parties or court.
Gagne v. Silcorp: test for proper multiplier: (1) risk of winning (2) risk of getting case certified as a class action (3) how quickly result achieved (4) reason'ess of result: (a) % of total recovery (b) range of multiplier is 1-4 (c) what retainer K said (d) real economic incentive for the lawyer.
Recourses for non-payment of fees / A client that does not agree with fee charged may (1) go to court or (2) arbitrate.
Lawyer must sue in court to recover fees. / Both the client and the lawyer may go to the Assessment Officer.
COSTS AWARDED TO A PARTY p. 27ff
Quebecart. 477(1): Losing party must pay all costs, but court has discretion to order otherwise. Tariff of Judicial Fees of Advocates: Establishes amount of court costs.
ALSO: Special Fees (s.15 Tariff of Judicial Fees):
* Awarded where the case is "important".
* At the discretion of the judge, but can never be used to punish: DF 1777
Additional Fees (s.42Tariff of Judicial Fees):
* 1% of amount at issue where amount is > $100,000.
* Automatic, not discretionary. But crt may order otherwise.
Court costs granted to lawyer who usually authorizes the client to collect. / Ontario
s.131(1) Courts of Justice Act
* Loser doesn't auto'ly pay. Judge discretionally decides who pays and how much.
Rule 57.01(1) Rules of Practice
Factors ct will consider. Key factors: result in proceeding and any offer to settle made in writing). Other factors: importance of issues, conduct of parties, complexity of proceeding, improper steps in proc’ing.
***Turning down a reasonable offer may cost you court costs incurred after settlement was rejected !!! -- different from Quebec.
Rule 57.01(2)
If successful may still have to pay costs
Rule 57.01(3)
Ct may fix all or part of costs w or w-out ref to tariffs.
Rule 57.01(4) range of options:
3 Ways to Award Costs
1) Lump sum amount
2) Party to party basis (gen rule; tariffs but more flexible than in Qc)
3) Solicitor-Client basis (except'l, full refund of actual legal fees; meant to be punitive for misbehaviour during trial or event at issue)
Coronation Insurance Co v. Florence : if court awards costs (here to a losing party!) to a party which has conting. K with his lawyer, costs are still payable. Cont. fee is similar to prepayment of the whole fee. Here families gave consideration, though translating its value would be difficult.
LIABILITY FOR INSTITUTING PROCEEDINGS / Winning Party Recovery p. 30
Dismissal & Damages / Quebec- 75.1 & 524 CCP - ct can dismiss action if found to be frivolous or completely unfounded. (preliminary recourse). 75.2 CCP - if action dismissed, ct may order unsuccessful party to pay comp dams for prej other has suffered.
- Ltd. Defamation
- Abuse of proceedings
rendered. Court: (1) no need to wait till the end (2) to est. abusive action must
prove P's bad faith and no reasonable chance of success. Action in libel denied here b/c 1 year St of Limitations passed. / Ontario
No specific provisions but there are common law actions:
* Tort of abuse of process
Must show axn = (1) not founded and (2) had improper purpose
* Tort of defamation
CHAPTER IV: THE LAWYER
4. REGULATING LAWYERS
QUEBEC / ONTARIOETHICS P. 35
(NB - the codes are rigorously enforced in both Que & Ont.) / Code of Ethics
2.05: avoid dilatory pros, and co-operate w/colleagues to ensure good admin of justice.
3.02.11: avoid abusing procedure by continuing proceeding that though tech legal, is not useful in circumstances.
4.02.01(a): Derogatory to the prof'ns dignity for lawyer to initiate a reqst, adopt attitude, accept a defence, slow a procdg or take any measure in his client's name when he knows/evident that this will serve no purpose other than to harass another person. / Law Society Act - R.S.O. 1990 c.L-8
- regulation is similarly structured to Quebec
* LSUC: has similar responsibilities as the Barreau (education, admission to bar, code of ethics, disciplining mems and compulsory insurance).
GOVERNMENTINTERVENTN / Professional Code - RSQ c.26
Governs all prof'ls in PQ, incldg the Bar
1. Creates l'office des profss'ns du Que:
* oversees prof'l corps and ensures they serve pretext of public intst)
* ensures prof'l body has adequate Code of Ethics & requires a procedure for arbtrn of accounts
* regulates trust funds & insurance
* any regulation a prof'l body proposes must be submitted to the office which then gives to govt to approve after making recmdns re: protextn of public interest
2. Creates le tribunal des professions
* sits as a body of 3 J's & hears appeals on discipl'ry matters decided by Que Bar. / Interventional at 3 levels:
1) Some benchers are apptd by the prov'l govt
2) For some important matters (legal education, admission to LSUC, code of ethics & compuls insurance), LSUC's regulations are subject to govt apprvl
3) Appeals to divisional ct for all disciplinary matters.
REPRESENTATION
QUEBEC / ONTARIOPROFESSNL
MONOPOLY P.. 38 / ►Clientmay represent himself at all times unless also represents interest of others: 61 CCP
►Lawyer mustrepresent client when
(1)party acting on behalf of others (e.g. trustee, mandatory);
(2)party is a legal person: 661 CCP. (no ON-like exceptions = e.g. Atomic Slipper)
(3)class actions: 1049 CCQ. Always brought in Superior Crt.
►Client orAgent(like directors or e'ees of a corp.)must represent in Small Claims: 955-6 CCP. Can give a MANDATE for repstn, must be gratuitous, written, signed by cr or debtor & state the causes why person cannot appear. No L can act as mandatory.
►Lawyer cannot represent client when action is in Small Claims: 955-6 CCP. Exception:
(a) person w/t capacity (e.g. child)
(b) when Corp is represented by full-time in-house lawyer (this results from reading of s. 956 CCP)
(c) in case of a complicated issue of law: 977.1 CCP. J may on his own or a party's motion & w/agreement of CJ of Ct of Quebec, allow parties to be rep'd by advocates. Fees & costs of advocates will not be claimed from the parties.
Nissan v. Pelletier - Constitutional challenge to 955(3) failed. / ►Clientmay represent himself at all times unless also represents interest of others Rule 15.01(3) & 15.01(1).
►Lawyer mustrepresent party that is a legal person unless court allows for rep'tion by Corp's Agent: Rule 15.01(2).
► Client orAgentor Lawyer mayrepresent in Small Claims: s.26 Courts of Justice Act
- In all cases, where Agent represents, Court may exclude him if not competent to act on the indiv'l's behalf: s.79 - Ontario Courts of Justice Act
CHANGE OF SOLICITORS P. 46
QUEBEC / ONTARIOW-DRAWL FROM CASE (may never cause prejudice to the client; need permissn of the court if during trial) / Code of Ethics 3.03.04: must have "sound and reasonable grounds" and take necessary steps to avoid serious prejudice. Code of Ethics 3.03.05 "serious and reas'le grounds" include: loss of client confidence, client lies, conflict of intst, inducement to perform illegal acts, client refuses to pay.
Art. 249 CCP: Where termination occurs in mid-ltgn (starting with the declaration), ct must give its permission and all partiers must be informed. / May terminate at any time subject to:
Rule 11 CBA Code of Ethics Lawyer may only w-draw his services without good cause and notice appropriate in the circumstances.
15.04 ROP - L may move for an order removing him as solicitor of record.
Torry Torry: ON Law Society examines
whether the firm breached its duty to avoid
causing undue prejudice to the client when
it withdrew from an unpopular, in its view
case. Must represent the client even if L
does not totally agree with the client's
position.
CLIENT FIRES LAWYER / art.252 CCP & Code 3.02.09 P. 46
When the mandate is revoked, lawyer must cease to act but has the right to be paid for services rendered.
2185 CCQ - right of retention of file if client doesn't pay fees. But Ethical problem of causing prejudice to the client. Prohibited by the American Bar. / 15.03 ROP - client does not need anyone's permission to change - only needs to serve notice. Cannot be grounds for postponing the trial.
May terminate at any time subject to:
Sub. 6 Solicitors' Act - can retain file if not paid.
SUBST'N of Lawyers / Lawyers can be substituted either (1) with all parties consent or (2) court's permission: 253 CCP
WHERE THE LAWYER CANNOT ACT P. 47
QUEBEC / ONTARIOCONFLICTS OF INTEREST:
INSTITUT'AL SAFEGUARDS /
- Lawyer must withdraw if there is a conflict of interest. This is one of the serious and reasonable grounds of withdrawal under Rule 3.03.05 of Code of Ethics.
Code of Ethics amended to keep in line with the CBA guidelines to deal w/"tainted lawyer" situation.
3.06.02 A conflict of intst arises where there is a duty of confidentiality to old client and a duty to disclose all useful info to new client.
3.06.09: Must create special measure to avoid conflict. Effectiveness of the measures is judged by: 1. size of firm, 2. precautions taken to prevent access to file by tainted lawyer 3. clear instructions re the protection of confidential info 4. relative isolation of lawyer in the conflict.
3.06.08 When faced with conflict of interest, consider: 1. higher interest of justice 2. consent of parties 3. extent of prej. to each party 4. time elapsed since the origin of situation that gave rise to conflict 5. Good faith of parties.
3.06.03 extends the rules to personnel other than lawyers
Case Law for Ontario→
Davies Ward & Beck v. Chapters: firm is disqualified from representing a bidder because target was former client. Firm had confid infor, and even though it is old its nature still poses a potential for conflict. Must have kept the Wall.
Re Manville Canada & Ladner Downs: held that an affiliation formed among otherwise independent Canadian law firms creates little if any opportunity or necessity for interaction between the partners and a reasonable person would be satisfied that no confid info would be exchanged. The test is whether the lawyers associate in such a manner as to be perceived as practising in partnership or association with each other.
- purpose of affiliation to practice law in a foreign jurisd.
- Firms remained independent; free to compete with each other. Maintain separate identity and functions
- Partners affidavits were convincing
- Must distinguish b/n partnerships/associations and distant affiliations.
- Procedure: 15.04 = move for an order removing lawyer as a solicitor of record.
- See Sanctions
3 competing issues:
1. Maintenance & integrity of justice sys.
2. Right of client to choose and keep L.
3. Must permit mobility in legal prof.
Majority opinion:
- Did the lawyer receive any confid info in the course of the old file that is relevant to the new matter? Presumption arises if there was a "previous relationship which was sufficiently related" to the new retainer, unless the L meets a heavy burden of showing otherwise. E.g. the client admits on the stand that no confid info was revealed to the L. Court does not want to close door on opportunity to rebut.
- Will the confid info be misused?
(b)Other member of his firm too, unless they can show clear and convincing evidence that all reasonable measures taken to prevent conveyance of conf. info., Institutional safeguards nec.; affidavits not suff.
Cory's concurring opinion (harsher):
The public's confidence in the integrity of legal system is the overriding concern. Once the link b/n the L and the old case/client is shown, there is a presumption that confidential info was received by him. Once the L is presumed to have confid info, the whole firm must be disqualified because of the presumption that the L will share this info with other Ls. What one knows = the firm knows. For Cory, a presumed knowledge of L is enough to taint the whole firm! Scary!
Cdn. Bar Ass. Response to McDonald (have been incorporated in Ontario):
Measures "Chinese Wall": screened off, no access to flies, sits in remote office, different stuff, screening policy must be written and consequences of breach explained. Most importantly, former client must be informed and, if possible, have consented.
Ontario (limited) Response to the SCC invitation to set standards for ethical walls: Rule 29 Rules of Prof. Conduct: Rule ltd to cases where the lawyer has actual knowledge of confidential info [not about presumed knowledge].
29(4) law firm disqualified unless: 1. consent from former client obtained, or 2. firm est. that (a) it is in best interest of justice that it continues, and (b) firm proves that reasonable measures taken to stop disclosure.
LAWYER = POTENTIAL WITNESS / Generally, cannot represent the client.
Crts. adopt a “wait and see” policy (Fed. de Médecins). If lawyer called and the evidence is contradicted, will not be able to continue.
Code of Ethics 3.05.06 - Lawyer can cont. to work if removal would cause serious & irrep. harm to client or if: 1. test. uncontradicted ... / CBA - Rule 8, commentary 5 - lawyer cannot act.
LAWYER-CLIENT RELATIONSHIP
QUEBEC / ONTARIONATURE p. 41 / Art 1732-3 CCLC, arts 2130ff CCQ:
Relationship of PROFESSIONAL MANDATE: TP may always presume that the L has mandate for his acts. L bounds the client until disavowal even if acts w/t mandate: King et Pinsonneault
Pelissier v. Houle (L sent his partner to the trial; court found it to be OK). Gap-fillers of implied and express Powers:
- retainer K
- Bar Act
- Code of Civil Procedure
- Custom and use
2134: Remuneration det'd by K, usage or law or on basis of services rendered
2136:Powers of a mandatory are those expressed or those that can be inferred from them. Include power to do acts incdtl/necess to his performance
2137: Powers granted to perform an act ordinarily part of a person's profn need not be expressed.
2138: obs of the mandatory (fulfil it, act w/prudence & diligence, avoid conflicts of intst)
2157-8: Mandatory in principle is not liable to TP unless he acts beyond the mandate
2175ff: Either party can terminate a mandate. / Scherrar v. Paletta - Three Principles:
1. Agency relationship; authority and its limits arise from the retainer and is limited to what client has authorized
2. Wrt 3rd parties, the authority of L extends to everything that is reasonably expected unless expressly communicated to TP.
3. A settlement negotiated by the L without Client's authorization is binding unless:
- the opposite party had knowledge of the limits of L's authority;
- client is under disability; or
- the L misapprehended his Client's instructions or facts and this misapprehension would result in injustice or make it unreasonable or unfair to enforce the settlement. the crt has discretionary power to intervene and inquire into circumstances when called to do so: this was done in Hawitt v. Campbell where L did not know about facts of the new med report at the time of negotiating a settlement. But remember UNIQUE circumstances; sympathetic case
DISAVOWAL p. 42 / 243: Client can disavow if lawyer exceeded his powers or acted for him w-out a mandate
244: Disavowal may be taken during suit or after judgment.
245: Must file declaration that you have not ratified act for which you are disavowing.
246:File motion declaring that disavowal be declared valid.
247: Effects: if validated, disavowal places parties in same position as before the acts.
Conditions: (1) act not auth'd in 1st place, (2) act not later ratified, (3) act caused prej to client: flows from 243-45 CCP. NB - doesn't apply where the act was authorized but improperly done.
Lawyer must inform Client about option of disavowal.
Hebert v. Deschenes - disavowal doesn't apply to failure
to act (only to actions). Here, L forgot to file a defence.
Okrainec v. Valliant - Where disavowal is available to minimize damages, it should be tried first. If not validated, only then can sue the lawyer. Client must mitigate damages. / No Disavowal in Ontario (see Scherrer v. Paletta). But might argue on the basis of Hawitt v. Campbell that court has "general discretion to ensure that justice is done" -- this is close to disavowal.
Ont greater emphasis on protecting 3rd parties says leave it up to the party to sue the lawyer…
POTENTIAL LIABILITY OF LAWYERS / 1. Disciplinary Axn by the Bar
Code of Ethics 3.02.01 and 4.02.02 require the lawyer to act w/integrity and in keeping w/dignity of the profession. Sanctions include fine, suspension, disbarment. Can be initiated by client, another lawyers, judge. L must appear before a disciplinary Committee.
2. Court may order to pay costs personally. DF 1777 :
- Position that need a separate action by the other party for those costs (Foucault Pontiac Buick) overruled.
- Lawyer can be made to pay costs where: (1) causes delays & abuse by introducing irrelevant and repetitive materials, and (2) acted in bad faith.
- Power should be exercise exceptionally, b/c of concerns for confidentiality and duty on L to bring unpopular cases to court.
- Special Fee (for important case) cannot be used to punish lawyer.
No immunity of lawyers. Client can seek recourse through courts for breach of K or tort provided:
(1) See: Okrainec v. Vaillant. Disavowal will be viewed as a form of mitigation. (2) Also, must prove causation -- i.e. but for the breach, Client would win the case -- hard!
4. Other party sues Lawyer
Recent development. DF-1777: H tries to sue W's lawyer but court reserved the right
5. Contempt of Court : 50 CCP -- very broad language. Can sanction for disrespect of court. / 1. CBA Code of Ethics - Rule 2
Lawyer owes a duty t/b competent, must serve in a diligent manner.
2. Order to pay costs personally
ROP 57.07: where lawyer has caused costs t/b incurred w-out reas'le cause or t/b wasted by undue delay, negligence or other default ("Torquemada Rule")
3. Client sues lawyer personally
Situation less clear at C/L.
Demarco v. Unger: no immunity from negligence
4. Other party sues Lawyer
Recent development
5. Contempt of Court: Rule 60.11
6. Court has an inherent jurisdiction to enforce a solicitor's undertaking by summary proceeding: E.g. Witten Volgel, where the court enforced the L's undertaking to comply with trust conditions.
CHAPTER V: THE JUDGES