Judicial Institutions and Civil Procedure 2003

Written with Brown Power

I. Introduction

II. LITIGATION & OTHER FORMS OF DISPUTE RESOLUTION (ADR)

A.forms of dispute resolution

B.problems with litigation as a form of dispute resolution

(i) Access to Justice

(ii) Quality of Justice

C.the rise of arbitration

Quebec:

Ontario:

D.advantages and disadvantages of arbitration

III. THE ECONOMICS OF LITIGATION

A. costs charged by the courts (State) ???

B. Lawyer’s Fees

Alternatives to Hourly Fees: Deeper Examination

C. Costs Awarded to a Party

Quebec:

Ontario:

D. Liability For Instituting Proceedings

Quebec:

Ontario

E. Arbitration

IV. THE LAWYER

A. The legal profession

Organization & Structure of the Legal Profession:

b. the practice of law (overview of Structure)

c. representation

d. Lawyer-Client Relationship

Quebec:

Ontario

Consensual relationship

1. Conflict of Interest:

E. Changing lawyers

F. Potential Liability/Responsibility of Lawyers

Recourses Available for Breach (5):

V.THE JUDGE

A.Appointments

1.Superior Court judges

2.Federal Court Judges

3.Supreme Court of Canada Judges

4.Inferior Court Judges

B.Independence & Control of the Judiciary

I) Security of Tenure:

II) Salaries:

III) Institutional Independence

C. Judicial Immunity

Civil Liability of Judges

D. Recusation

E.Judicial Powers

1.Contempt of Court Power (352 CB)

2.Parens Patriae Power (Inherent Power)

3.General Inherent Powers (Residual)

VI. The Courts

A. Introduction

1) Trial Court

2) Court of Appeal

B. Quebec:

1) Superior Court

2) Inferior Court

3) Quebec Court of Appeal

C.Ontario:

1) superior court

2) small claims court

3) Ontario Courts of Appeal

D.Federal Court System:

Trial Division's Jurisdiction:

Federal Court of Appeal Jurisdiction:

Cases on Jurisdiction of the FC:

E.Courts Of Appeal:

Role of the CA:

Procedure or jurisdiction of appeal courts and their peculiarities:

F.Supreme Court Of Canada:

Appeals in Civil Matters

Appeals in Criminal Matters:

Limited Original Jurisdiction:

Appeals Regarding Decisions for leave to Appeal:

Part VII – Territorial Jurisdiction

A.Intro

FACTORS FOR THE PLTF

FACTORS FOR THE DFDT

FACTORS FAVOURING BROAD CONSTRUCTION OF JURISDICTION

FACTORS FAVOURING NARROW CONSTRUCTION OF JURISDICTION

B.STATUTORY AND COMMON LAW GROUNDS OF JURISDICTION

Rules in Quebec

Rules in Ontario

C.JURISDICTION BASED ON CONSENT

Rules in Quebec

Rules in Ontario

D.DISCRETIONARY JURISDICTION

Rules in Ontario

Rules in Quebec

E.RECOGNITION OF FOREIGN JUDGMENTS

Rules in Ontario

Rules in Quebec

Part VIII – The Parties

A.The Plaintiff

Who can Sue in Quebec?

Who can Sue in Ontario?

Interest to Sue

Vexatious Proceeding

Multiple pltfs

B.The Defendant

Part IX – The Issue – non-litigatable

A.Yarneson case

Part X – Exchange of Pleadings

A.Ontario – Alternate Ways of Proceeding

Action

Application

B.3 Ways to Proceed under an Action in ONTARIO

C.PLEADINGS

3 Steps to Pleadings

3 Potential Complications in the Exchange of Pleadings

D.Drafting Rules all Pleadings in Ontario

Alan v. New Mount Sinai Hospital – convicting the dfdt of a charge that was not pleaded is allowed

E.Rules for Filing a Statement of Claim

F.Rules For Serving a Claim

Personal Service

Alternatives to Personal Service

Substituted Service or Dispensing with Service

G.Case Management Rules

Simplified Procedure

Case Management

H.Ontario - Statement of Defense

Notice of Intent

Delays to File the Statement of Defence

If Statement of Defence is Late

Reasons for Default

I.General Rules for Statement of Defence in Ontario

PART I

PART II – Counter Claims

J.THE STEPS SUBSEQUENT TO THE DEFENSE

Plaintiff’s reply to the Statement of Defence

Close of Pleadings

CLAIMS AGAINST A THIRD PARTY

Part X - Exchange of Pleadings - Quebec

A.General Rules regarding the Exchange of Written Pleadings

B.The Motion to Institution Proceedings

Jail v. Berry

Sufficiency

C.Notice to Appear

D.Dateof Presentation

E.Service of the Motion to Institute Proceedings

Sartoga Construction v. Vinest

F.Defence in Quebec

WRITTEN DEFENCE

G.Delays

The Timetable and Oral Defenses – Can you have a cross-demand with an oral defence?

XEROX CANADA

H.Third Party Claims – Cross Demands

Ganache v Caumartin CA (1985)

Fossel v. Royal Bank [1986][CA]

When can the Pltf raise the issue of Connexite?

I.Third Party Claims – Intervention

Voluntary Intervention

Forced Intervention

J.Default Judgments in Quebec

Part XI – Interlocutory Matters - Quebec

A.HOW ARE INTERLOCUTORY JUDGMENTS ARE RAISED IN QUEBEC

B.PRELIMINARY EXCEPTIONS – ART. 159 – 171 CCP

Potential Problems with the new System

C.Delays

D.Security for Costs - Quebec

Test - How do you establish residency in Quebec?

Discrestion For Security of Costs

E.Motion for Particulars - Quebec

Serabec Ltee v. Place Desjardins Inc [1977] CS – underlying principles wrt motions for particulars

Part XI – Interlocutory Matters – Ontario

CASE MANAGEMENT CASES

Delays

A.Security of Costs

B.Motion for Particulars

2 purposes for motions for particulars in Ontario:

Procedural Rules in Ontario

I. Introduction

The class covers three issues:

This course does not deal with the substantive rights of the parties or solutions to their problems but with procedures to exercise rights.

The course is divided into 3 parts:

Dispute resolution mechanisms, focusing on litigation, alternatives to litigation, and economic factors

Judicial Institutions  3 players in the litigation:

a)Lawyer

b)Judge

c)Court structure

Civil procedure  from the time a person realizes he has a problem to the time the court renders judgment  course doesn't cover the trial.

Main theme access to justice. This is the ultimate test simple, cheaper, quicker and more efficient process makes access to justice better.

PART I: DISPUTE RESOLUTION MECHANISMS

II.LITIGATION & OTHER FORMS OF DISPUTE RESOLUTION (ADR)

A.forms of dispute resolution

Dispute  to a  solution

Spectrum: Informal negotiation ------Trial (1 to 5 below are from the least informal to the most formal)

Litigation is only one form of dispute resolution and most disputes are resolved through other means. In only 5% of cases is there a judgement of court. We'll focus on the small # of cases that result in litigation.

1) Negotiation

Entirely informal.
No rules/restrictions governing it
No neutral 3rd party - involves only the parties to the dispute, w/or w/out their representatives.
Both parties speak directly to one another - don't have to be represented by lawyers, can use a non-lawyer.
Consensual process - not compulsory and non-binding.
No guarantee that they will arrive at a result - result is not an application of a rule of law.
No limits - parties can agree to any solution consistent with their interests, no damage or performance awards necessary (like litigation) - tremendous flexibility in terms of the solution.
Most important form of dispute resolution 99% of legal disputes are resolved through negotiation, but there are other more formal processes which involve 3rd parties...

2) Conciliation

Quite informal - no specific rules in the CCP.
Neutral 3rd party participates in the discussions - “a conciliator” to play a passive role in assisting parties to voluntarily reach a settlement.
Role is limited to conveying info between the parties and identifying areas of common ground.
3rd party has no decision making power.
Consensual process - only binding as a contract.
Often found in the labour context.

3) Meditation

Similar to conciliation (a little more formal but still informal).
3rd party "mediator" has a more active role - makes recommendations, passes info & structures negotiations.
3rd party does not have power to impose things on the parties.

Note: These first three differ from the last two in that they are “win-win” solutions and involve more of a compromise. The last two are characterized as “all or nothing” or “right or wrong.”

4) Arbitration

Includes a broad range of mechanisms for dispute resolution.
Neutral 3rd party, i.e. the arbitrator, makes a decision on the merits of the case sometimes after a trial, hearing evidence or sometimes after only reading the arguments.
The two parties allow the 3rd party to render the decision.
3rd party makes the decision - solution is imposed.
There are several different forms of arbitration:

i) Non-Binding Arbitration [Contradiction in terms]

Parties present evidence and agree to have a decision rendered by an arbitrator yet they aren'tbound by it - useful bc it gives indication on what the court may do.
Similar to mediation/conciliation because ultimate decision is still with the parties.

ii) Binding Arbitration

Decision is binding by agreement of the parties.
Parties have the ability to create procedure which they think is appropriate to their situation, e.g. - can agree to a hearing w/witnesses or in writing only.
Chose the arbitrator who is most appropriate to their procedure, e.g. if an engineering issue can go to an engineer.
Parties can also agree to indicate to the arbitrator the possible outcomes, e.g. baseball salary - have the player’s wish and the organization’s offer - have to chose one of the offers.
Outcome: final outcome arbitration: arbitrator chooses between outcomes proposed by each of the parties. Advantage = it forces each party to be reasonable.
Voluntary process - need agreement between parties - either in advance (like in a clause in the K) or @ the time the dispute arises - that will submit the dispute to arbitration.
Contractual - decision is binding - notenforceable unless the courts make it enforceable!! e.g. - when can send the sheriff/bailiff to seize and sell assets.
** Private process - not open to the public and no right for the press to be present. Parties may opt to have outcome remain confidential and/or have the process itself remain private (can't walk in unless the parties invited you) may be appropriate for certain types of disputes.

In short: Arbitration can be structured in any way that's appropriate; it is still essentially a voluntary process - parties must agree to submit to arbitration. It is, in a sense, a Contractual process b/c contracts often stipulate that parties must submit to arbitration in case of a breach, and decision is binding only b/c the parties agreed in advance. Decision of arbitrator is enforceable (by a court) only where it has been approved by the court and thus converted into a judgement (949.1 CCP)

5) Litigation

Substantially similar to formal arbitration.

KEY POINT IN COMMON:

Both involve decision by neutral 3rd party after a formal hearing where both parties had opportunity to present evidence and form arguments and who were represented by lawyer.

DIFFERENCES:

i)NOT VOLUNTARY: Don't need consent to sue someone unless plaintiffs’ exclude the right to litigate.

ii)OUTCOME of litigation is binding and immediately enforceable in and of itself (in arbitration - have additional steps).

iii)PROCEDURE (and structure) has been established and paid for by the State. There is a single form of procedure that applies to all - may therefore be aspects that are not appropriate to each individual case = one size fits all as opposed to tailor-made procedure. In arbitration the parties must pay and must draft up their own procedure as to their needs  much more flexible.

iv)RECOURSES: Judges have less flexibility in terms of the outcome of the litigation. Must choose from the recourses available at law  damages, specific performance, injunction.

v)VERY PUBLIC: Open courtroom: art. 13 CCP states that the sittings are public unless public order/good morals require that they be held incamera - same re: documents involved in the litigation. The exception is family matters, which are in camera, unless a public hearing is required by the interests of justice.

vi)ADJUDICATOR: Parties agree on the person who will arbitrate - someone who doesn't require formal legal training, but in litigation:

a) Have a judge who hear the case.

b) Judge will be assigned to your case by administrative procedure of the court house - no option of choosing the judge. Drawback = judge may not be particularly competent wrt your dispute. Advantage = paid for by the state (litigation is far cheaper than if you hired these people and paid for room etc by yourself).

vii) FORUM: The party suing chooses the forum, unless there is a contract between the parties—the other party however, can contest the choice of jurisdiction

Note-litigation is the only mechanism available in the absence of an agreement

B.problems with litigation as a form of dispute resolution

Criticisms of litigation revolve around two issues:

(i)Access to Justice

(ii)Quality of Justice

(i) Access to Justice

Justice should be simpler, cheaper & quicker.
Litigation costs too much $, takes too long and is too complicated with the result that ordinary people simply cannot afford to sue.
Art. 2 CCP - the rules of procedure are intended to facilitate rather than delay—and should be interpreted that way.
Rule 1.04 in Ont. - the rules of civil procedure are intended to secure the just, most expeditious and least expensive.

The legislature has taken a # of steps to ensure that this objective is met:

SIMPLER:

Introduction of specialised courts (e.g. Rental Boards, Small Claims Court, rise of arbitration).
No lawyer is needed & the staff helps with documentation & presentation of arguments.
Ontario: different procedure (rule 76), simplified for small claims
Quebec: simplified procedure if 50K$ or less—on Jan 1, 2003extended to all cases (?)

CHEAPER:

Economic steps, e.g. court costs, legal aid, contingency fees, etc.
Cost awards: successful party gets cost from loser; this discourages frivolous lawsuits allowing meritious suits to proceed more quickly.
Legal aid: government isn't putting necessary resources so # of people eligible is decreasing.
Contingency fees: fee which is contingent on the outcome of the litigation; lawyer gets % of recovery instead of flat fixed fee rate (prohibited in Ont. / illegal at CL); enables people to be represented without having to make out of pocket disbursements  only if you win.
Class action: allows people greater access to courts; gather group together with the same interests who share the burden to make it worth it to sue - easier to enforce rights. There's a certain amount of government funding available for class actions.

QUICKER + MOREEFFICIENT:

Disclosure of evidence Rules: Procedural steps, e.g. discovery (a means to gain access to the other party’s case), pre-trial conferences, rules limiting the introduction of new evidence, etc.
Mandatory Pre-trial discovery: disclosure of evidence before the trial; usually results in a shorter trial because both parties know what will be brought up in court; prevents surprises.
Pre-trial conferences: occurs post-discovery; both parties are summoned before the judge to go through evidence to try to narrow the issues; this reduces issues and may even settle a case.
Mandatory mediation and conciliation programs
The rate/lag time has been reduced in Que. from 4 1/2 years to 9 months and delays shortened in Ont. as well.

Ontario: Case management rules adopted on an experimental basis which allows for simple cases to be heard on a “fast track” - i.e. courts that don't need full blown civil procedure.

Quebec: Have done something similar with new amendments to the CCP. Simplified the procedure - applicable to all cases where the amount at issue is less than 50,000$ or in other cases w/in one year of the incident of action get to a judge. Designed to get the parties in front of a judge within one year of the institution of the action. However, this is still criticised in terms of its length and quality. (? I am not sure if this is in the New Code)

Criticisms of litigation revolve around two issues:

(iii)Access to Justice

(iv)Quality of Justice

(i) Access to Justice

Justice should be simpler, cheaper & quicker.
Litigation costs too much $, takes too long and is too complicated with the result that ordinary people simply cannot afford to sue.
Art. 2 CCP - the rules of procedure are intended to facilitate rather than delay—and should be interpreted that way.
Rule 1.04 in Ont. - the rules of civil procedure are intended to secure the just, most expeditious and least expensive.

The legislature has taken a # of steps to ensure that this objective is met:

SIMPLER:

Introduction of specialised courts (e.g. Rental Boards, Small Claims Court, rise of arbitration).
No lawyer is needed & the staff helps with documentation & presentation of arguments.
Ontario: different procedure (rule 76), simplified for small claims
Quebec: simplified procedure if 50K$ or less—on Jan 1, 2003extended to all cases (?)

CHEAPER:

Economic steps, e.g. court costs, legal aid, contingency fees, etc.
Cost awards: successful party gets cost from loser; this discourages frivolous lawsuits allowing meritious suits to proceed more quickly.
Legal aid: government isn't putting necessary resources so # of people eligible is decreasing.
Contingency fees: fee which is contingent on the outcome of the litigation; lawyer gets % of recovery instead of flat fixed fee rate (prohibited in Ont. / illegal at CL); enables people to be represented without having to make out of pocket disbursements  only if you win.
Class action: allows people greater access to courts; gather group together with the same interests who share the burden to make it worth it to sue - easier to enforce rights. There's a certain amount of government funding available for class actions.

QUICKER + MOREEFFICIENT:

Disclosure of evidence Rules: Procedural steps, e.g. discovery (a means to gain access to the other party’s case), pre-trial conferences, rules limiting the introduction of new evidence, etc.
Mandatory Pre-trial discovery: disclosure of evidence before the trial; usually results in a shorter trial because both parties know what will be brought up in court; prevents surprises.
Pre-trial conferences: occurs post-discovery; both parties are summoned before the judge to go through evidence to try to narrow the issues; this reduces issues and may even settle a case.
Mandatory mediation and conciliation programs
The rate/lag time has been reduced in Que. from 4 1/2 years to 9 months and delays shortened in Ont. as well.

Ontario: Case management rules adopted on an experimental basis which allows for simple cases to be heard on a “fast track” - i.e. courts that don't need full blown civil procedure.

(ii) Quality of Justice

Note: This is not in the class notes

Criticism judges aren't necessarily equipped to deal with the issues that might come up in a trial.
Attempt the administration of the court house will try to match the J to the issues in the trial but in this respect, arbitration is still superior.

Compare to the US: