Table of Contents
GENERAL PRINCIPLES OF CIVIL PROCEDURE ........................................................................................................................... 9
Importance of Proper Procedure ........................................................................................................................................ 9
The Object of the Rules - the Rule of Proportionality – Rule 1-3........................................................................................ 9
Object R 1-3(1) ................................................................................................................................................................ 9
Proportionality R 1-3(2) .................................................................................................................................................. 9
Application of the Rule.................................................................................................................................................... 9
ETHICS IN CIVIL LITIGATION .................................................................................................................................................... 9
The Code of Professional Conduct ...................................................................................................................................... 9
Critical Dialogue on the Ethics of Lawyering in Walker .................................................................................................... 10
Atkinson – “How the Butler was Made to do it”........................................................................................................... 10
Kennedy – “The Responsibility of Lawyers for the Justice of their Causes” ................................................................. 11
Hutchinson – “Legal Ethics for a Fragmented Society: Between Professionalism and Personal” ................................ 11
Abella – “Professionalism Revisited” ............................................................................................................................ 12
Backhouse – “Gender and Race in the Construction of Legal Professionalism: Historical perspectives” .................... 12
Farrow – “Sustainable Professionalism” ....................................................................................................................... 13
PLEADINGS ............................................................................................................................................................................ 13
The Legal Evolution of Pleadings ...................................................................................................................................... 13
What is a Pleading? ........................................................................................................................................................... 14
Rule 1-1: Definition of “Pleading” ................................................................................................................................. 14
Purpose of Pleadings ......................................................................................................................................................... 14
Importance of Filing Correct and Full Pleadings ............................................................................................................... 14
Rodaro v Royal Bank of Canada (2002 ONCA) - Parties May Only Rely on the Contents of the Pleadings................... 14
JJM Construction v Sandspit Habour Society (2000 BC) – Parties may not rely on defences not pleaded.................... 14
Whiten v Pilot(2002 SCC) Parties must plead specifically the remedies sought ........................................................... 14
Jones v Donaghey (2011 BCCA) – in failing to specifically plead a material fact, one cannot import an issue into the
pleading on the basis that it is relevant to an issue plead (MENTAL HEALTH) ............................................................. 14
Pleading Conclusions of Law – Rule 3-7(9) ....................................................................................................................... 14
Material Facts Requirement – Rule 3-1(2) ........................................................................................................................ 14
Pleadings Must Not Contain Evidence – Rule 3-7(1) ........................................................................................................ 15
Parties May Demand Particulars – Rules 3-7(18) to (24) .................................................................................................. 15
Definition of Particulars ................................................................................................................................................ 15
When are Particulars Normally Used? .......................................................................................................................... 15
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Amending Pleadings.......................................................................................................................................................... 15
Legal Arguments to Allow and Disallow Amendments ................................................................................................. 15
Amendments to add or substitute parties .................................................................................................................... 16
Amendment to Add a Cause of Action Where Limitation Period Has Expired ............................................................. 16
STRIKE PLEADINGS ................................................................................................................................................................ 16
Court may strike pleadings for serious defect – Rule 9-5(1)(a) ........................................................................................ 16
Policy Rationale: It saves time and money by striking cases early on that have no chance of success ....................... 16
Plain and Obvious Test for determining a serious defect (Hunt in Knight BCCA 2009 at para 20)............................... 17
Knight v Imperial Tobacco Canada Ltd (2009 BCCA) – court will strike applications, or portions of applications that,
plain and obvious, cannot succeed by serious defect. .................................................................................................. 17
R v Imperial Tobacco Canada Ltd (2011 SCC) – articulation of the purpose of strike pleadings, importance of allowing
novel issues, disallowance of evidence in strike application, proper remedy is amendment. ...................................... 17
Court may strike pleadings that are an abuse of process – R 9-5(1)(b), (c), (d) ............................................................... 17
SUMMARY JUDGEMENTS...................................................................................................................................................... 18
What is a summary judgement? ....................................................................................................................................... 18
When Can Summary Judgements Occur? – Rule 9-6 ........................................................................................................ 18
LD Guardian ad litem v Provincial Health Services Authority (BCSC 2011) – where a party neglects to properly plead a
bona fide triable issue, the court may order a period for pleading amendment pursuant to 9-6(5)(d) ....................... 18
Substantial Change between Old Rules to New Rules ...................................................................................................... 18
SUMMARY TRIALS ................................................................................................................................................................. 18
What is a Summary Trial? ................................................................................................................................................. 18
Policy Rationale ................................................................................................................................................................. 18
When Do Summary Trials Occur? – Rule 9-7 .................................................................................................................... 18
Application of 9-7 – in Inspiration Management (BCCA 1989) ......................................................................................... 19
Inspiration Management v Mc Dermid (1989 BCCA) - Sets out the rationale for summary trial and its proper
application .................................................................................................................................................................... 19
Why might one want to go to trial over having a summary trial? ................................................................................ 19
HOW TO BRING AND RESPOND TO APPLICATIONS (“MOTIONS”)........................................................................................ 20
The Mechanics of Making Applications Rule 8-1 .............................................................................................................. 20
Notice of Applications – Rule 8-1 (4) ............................................................................................................................ 20
Response to Notice of Application – Rule 8-1(9), (10) .................................................................................................. 20
HOW A CHAMBER’S APPLICATION WORKS........................................................................................................................... 20
Basic Mechanics ................................................................................................................................................................ 20
Presenting an Application in Chamber’s Court ................................................................................................................. 21
Responding to opposing counsel in an Application in Chambers ..................................................................................... 21
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DOCUMENT DISCOVERY & DOCUMENT PRODUCTION ........................................................................................................ 21
Importance and Purpose of Document Disclosure ........................................................................................................... 21
Policy Rationale for Document Discovery Rules ............................................................................................................... 21
Materiality Test Application & the Mechanics of Document Discovery Requirements – Rule 7-1 .................................. 21
Modern Relevance of the Old Guano Test (XY LCC v Canadian Topsires, BCSC 2013) ................................................. 22
Privest Properties Ltd v WR Grace & Co (1992 BCCA) – The discovery rule cannot “authorize a search”. Duty of
lawyers to carefully investigate and ensure disclosure of listed documents is complied with. .................................... 23
Przybysz v Crowe (2011 BCSC) – Discovery must not constitute a “fishing expedition”; proportionality is the overarching guide through the new two-tiered scheme for discovery under R7-1; Case planning transcripts cannot inform
relief sought on application .......................................................................................................................................... 23
XY, LCC v Canadian Topsires (2013 BCSC) – Lower standard of “reasonable specificity” under sub (11) and further,
Guano remains relevant where the court chooses to use its discretion to do so (generally reserved for bad behaviour)
....................................................................................................................................................................................... 23
Pro-Sys Consultants Ltd v Infineon Technologies (2011 BCSC) – may not “dump” large amounts of disorganized
data/info on opposing counsel as it is contrary to the object of a just and speedy adjudication of the issues ............ 23
ORAL EXAMINATION FOR DISCOVERY .................................................................................................................................. 24
What is Examination for Discovery? ................................................................................................................................. 24
What is the Policy Rationale for Examination for Discovery?........................................................................................... 24
What are the General Requirements Pertaining to Examination for Discovery? – Rule 7-2 ............................................ 24
Extensions to 7 hour limitation under sub (2) – Rule 7-2(3) ......................................................................................... 24
Examination of Party That is Not an Individual – Rule 7-2(5) ....................................................................................... 24
Minors, Mentally Incompetent, Bankrupt - Rules 7-2(8), (9), (10) ............................................................................... 25
Examinees Must Self-Inform – Rule 7-2(22), (23), (24)................................................................................................. 25
Objections – Rule 7-2(25).............................................................................................................................................. 25
TYPES OF OBJECTIONS (Nwachukwu) ........................................................................................................................... 25
Dann v Dhaliwal (2012 BCSC) – Under R 7-2(5) separate Ps in same claim not able to examine separate reps, but
may examine same rep twice, does not have to be concurrent. D organization entitled to choose their rep. ............ 25
Mainstream Canada v Staniford (2011 BCSC) – Scope of 7-2(3): examinee’s answers must be INTENTIONALLY evasive
to qualify as a breach under R 7-2(3); application of “reasonably practicable” under sub (d)..................................... 25
Nwachuukwu v Ferreira (2011 BCSC) – scope of objections restricts unnecessary, deliberate frustration of process;
certification does not estoppe D from further discovery; scope of examination (sub 18) very broad; types of
objections ...................................................................................................................................................................... 26
Strategic Examinations Tactics .......................................................................................................................................... 26
Key Examination Strategies and Strategic Use of Documents on Oral Discovery ........................................................ 26
Retracting Statements .................................................................................................................................................. 26
Interacting with Witnesses ........................................................................................................................................... 27
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Conducting Oneself as Counsel in Oral Examination .................................................................................................... 27
EXAMINATION BY DISCOVERY OF INTERROGATORIES ......................................................................................................... 27
What is an Interrogatory? ................................................................................................................................................. 27
The Old Rules v New Rules –Key Difference ..................................................................................................................... 27
Guiding Principles of the Use of Interrogatories .............................................................................................................. 27
When and How Do Interrogatories Apply? – Rule 7-3...................................................................................................... 27
Loo v Alderwoods (BCSC 2010) – purpose of interrogatories is to obtain NECESSARY facts, and questions must not be
ambiguous, redundant, remote, time consuming or complex so as to adhere to the objects of the rules................... 28
Credential Securities Inc v QTrade (BCSC 2012) – questions must be reasonably limited in specificity and number ... 28
PRE-TRIAL EXAMINATION OF A WITNESS ............................................................................................................................. 29
What is a Pre-trial Examination of a Witness? – Rule 7-5................................................................................................. 29
What are the Potential Problems with Pre-Trial Examinations? ...................................................................................... 29
When Should You Use Pre-Trial Examinations?................................................................................................................ 29
ADMISSIONS.......................................................................................................................................................................... 29
General Points on Admissions .......................................................................................................................................... 29
Purpose and Themes of Admissions ................................................................................................................................. 29
How do Admissions Work? – Rule 7-7 .............................................................................................................................. 29
DEPOSITIONS......................................................................................................................................................................... 30
What is a Deposition and How is it Different from Discovery? ........................................................................................ 30
The Mechanics of a Deposition ......................................................................................................................................... 30
What are the Grounds for a Court Ordering a Deposition? – Rule 7-8 (3) ....................................................................... 30
Videoconferencing ........................................................................................................................................................ 30
Seder v ICBC (BCSC 2011) problems which interfere with the effectiveness and usefulness of the evidence at trial
should only be ordered in exceptional circumstances where the evidence would be lost if not recorded prior to trial31
Gill v A & P Fruit Growers (BCSC 2011)- Video Depositions are preferable to video conferencing where conferencing
may lead to an adjournment and opposing counsel does not intend to cross-examine witnesses on the content of the
depositions .................................................................................................................................................................... 31
LIMITATIONS LAW ................................................................................................................................................................. 31
POLICY RATIONALE: The Big Picture of Limitations: ......................................................................................................... 31
The Discretion of the Courts to Mitigate Injustice by Extending Limitation Periods:....................................................... 31
New Limitations Law Compared to Old Law ..................................................................................................................... 32
Transition Period Chart (Where is the Old Law Still Relevant?......................................................................................... 33
RES JUDICATA........................................................................................................................................................................ 34
What is RJ & How Does Res Judicata Work?..................................................................................................................... 34
Exceptions to Estoppel by Res Judicata ........................................................................................................................ 35
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Res Judicata Applies to Ultra-Juridical Decisions .......................................................................................................... 35
Types of Res Judicata ........................................................................................................................................................ 35
Policy Rationale ................................................................................................................................................................. 35
McIlkenney v Chief Constables of the West Midlands (ENGLAND) – issue estoppel where issue has been previously
decided, to prevent person from contesting it in subsequent proceeding even if parties are different in the 2 actions
....................................................................................................................................................................................... 36
Bomac Construction (1986) – abuse of process for party to reject liability in a subsequent action where they are
found liable for same circumstances in a prior action – would cause relitigation of a decided issue .......................... 36
Reliable Mortgages v Chan #1 (2011BCSC); #2 (2013 BCSC); #3 (2014 BCCA) – can sue the same party twice on
different issues arising from the same circumstance .................................................................................................... 36
Petrelli v Lindell Beach Holiday Resort (2011 BCCA) – party may raise a new defence for a subsequent action that has
been tried where the opposing party is not privy to the first........................................................................................ 37
Toronto v CUPE (in Petrelli) – court has inherent jurisdiction to prevent an abuse of process ..................................... 37
Rasanen v Rosemount Instument - example of issue estoppel, privy between Ministry of Labour and EE ................. 37
MacDougall v Lake Country (2012 BCCA) – example of Action estoppel; successors are privy .................................... 37
ACCESS TO JUSTICE ............................................................................................................................................................... 37
Professor McHale Guest Lecture .......................................................................................................................................... 37
The Problem with Access to Justice .................................................................................................................................. 38
Process Preoccupation – Abella J (in Walker) ............................................................................................................... 38
Consequences ................................................................................................................................................................... 38
What is the Solution? How Do We Fix It? ......................................................................................................................... 38
How Does this Affect Us as Lawyers and Law Students? What Can we do individually? ................................................. 39
ALTERNATIVE DISPUTE RESOLUTION: OFFERS TO SETTLE, SETTLEMENT CONFERENCES, MEDIATION/ARBITRATION, CASE
PLANNING CONFERENCES..................................................................................................................................................... 40
Benefits of Mediation & Arbitration ADR Generally/Policy Rationale.............................................................................. 40
MEDIATION ....................................................................................................................................................................... 40
Why Choose Medation? Why Not?............................................................................................................................... 40
Who mediates? And How Should you Prepare for Mediation?.................................................................................... 40
What is the Court’s Involvement in Mediation? ........................................................................................................... 40
Mechanics/Process of Mediation – Notice of Mediation BC Regulation 4/2001 ......................................................... 41
The Problem with Multiple Parties and Settlement (BC Ferries) .................................................................................. 41
Offer to Settle - RULE 9-1 ................................................................................................................................................. 41
Settlement Conference – Rule 9-2 .................................................................................................................................... 42
Case Planning Conferences – Rule 5-2, 5-3 ....................................................................................................................... 42
CONVERTING PETITIONS TO TRIAL ....................................................................................................................................... 42
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What is a petition? ............................................................................................................................................................ 42
When are Petitions Used? ................................................................................................................................................ 42
Conversion of a Petition to Trial or Action – Rule 16-1 & The Test for Conversion.......................................................... 43
CLASS ACTIONS ..................................................................................................................................................................... 44
What is a Class Action? ..................................................................................................................................................... 44
Common Misconceptions About Class Actions............................................................................................................. 44
Types of Cases Frequently Litigated as Class Actions ....................................................................................................... 45
The Best Kind of Situations for a Class Action: ............................................................................................................. 45
Legal Framework of Class Action Suits.............................................................................................................................. 45
Legislation: Class Proceedings Act ................................................................................................................................ 45
Under the Common Law/Rules of Court ....................................................................................................................... 45
Stages of a Class Action..................................................................................................................................................... 45
Certification: the Battle and the War/Requirements for Certification ............................................................................. 46
Evidence at Certification ............................................................................................................................................... 46
Vivendi Canada Inc v Dell’Aniello (2014 SCC) – “Flexible approach” to commonality .................................................. 47
Post-certification Processes .............................................................................................................................................. 47
Opt-in/Opt-out of Class Action ..................................................................................................................................... 47
Trial of a Class Action Claim .......................................................................................................................................... 47
Strategies for certification ............................................................................................................................................ 48
Strategies for Defending Class Actions ............................................................................................................................. 48
Settlement of a Class Action ............................................................................................................................................. 48
o
General Motors v Abrams (ONSC 2011) – example of use of certification to bind parties ............................... 48
o
Sunnyside v Lorenz (ONSC 2009) – example where court will not allow certification to bind parties .............. 48

Nearly all members of class agree to distribute surplus in pension fund; Sunnybrook applies to certify the
proceeding but the court rejects certification application citing deficiencies ............................................................. 49
Costs and Fees................................................................................................................................................................... 49
Fee Arrangements:........................................................................................................................................................ 49
Rules around fees:......................................................................................................................................................... 49
Costs Controversy & the NO COST REMGIME in BC ..................................................................................................... 49
Consumer Association v Coca Cola (BCSC 2006) – Costs awarded pre-cert ................................................................ 49
Kerr v Danier (SCC 2007) – Public Interest Claim ......................................................................................................... 49
Ethical Considerations in Civil Actions .............................................................................................................................. 50
Generally ....................................................................................................................................................................... 50
Money, Money, Money …or is it really about Justice? ................................................................................................. 50
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Epstein Court may bar settlement between Defendant and Class Counsel . ............................................................. 50
Class Members, Absentee Class Members & The Role of the Court ............................................................................ 50
Advertising the Class Action to Solicit Members .......................................................................................................... 50
Can you pay/prefer the representative client more than other clients in the class? ................................................... 50
Indemnification of representative plaintiffs ................................................................................................................. 51
Can you sell shares in a litigation? ................................................................................................................................ 51
Negotiating counsel fees............................................................................................................................................... 51
Conditional settlement barring future CAs ................................................................................................................... 51
EXPERTS - RETAINING AND PRESENTING EXPERTS AT TRIAL ................................................................................................ 51
The Perfect Expert............................................................................................................................................................. 51
When is an Expert Required?............................................................................................................................................ 52
The Law Governing Expert Evidence and the Role of Experts – Rule 11 & CL .................................................................. 52
AT COMMON LAW: Application to Qualify an Expert; “The Necessity Test” & Statutory Standards ........................... 52
RULE 11-2(1), (2): Duty to the Court to Assist and Not to Advocate ............................................................................ 52
RULE 11-3: Appointment of Joint Experts ..................................................................................................................... 52
RULE 11-5: The Power of the Court to Appoint its Own Expert ................................................................................... 53
MacEachern v Rennie (2009 BCSC) – The Necessity Test in Mohan – testimony must be necessary inform court of
information likely outside their understanding. Statutory Standards are not determinative and expert testimony may
be considered to determine the standard of care in a general statute ........................................................................ 53
Warkentin v Riggs (2010 BCSC) – expert witnesses must uphold duty under Rule 11-2 to assist the court and not
advocate ........................................................................................................................................................................ 53
Bendetti v Breker (2011 BCSC) – court cannot appoint joint expert on the unilateral application of one party, and
cannot appoint prior to a CPC. ...................................................................................................................................... 53
Hiebert v Hiebert (2006 BCSC) – court’s power to appoint an expert of their own initiative must not be used where is
has the effect of imposing a search warrant on a party to litigation ........................................................................... 54
Ethical Considerations....................................................................................................................................................... 54
Selecting and Retaining Expert Witnesses ........................................................................................................................ 54
Potential sources for finding the right expert ............................................................................................................... 54
The Do’s and Don’t’s of Selecting an Expert Witness ................................................................................................... 54
Preparation of the Expert’s Opinion ................................................................................................................................. 55
Do’s and Don’t’s of Expert Opinion Preparation........................................................................................................... 55
Preparing an Expert for Trial ............................................................................................................................................. 55
Cross-Examination of an Opposing Party’s Witness ......................................................................................................... 55
Strategy for Preparing to Cross-Examine Opposing Party’s Expert Witness ................................................................ 55
Preparation Requirements for Examining Counsel in Cross-Examining the Expert...................................................... 56
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DRAFTING – APPLICATION FOR DOCUMENTS/STRIKE DEFENCE .......................................................................................... 56
Guest Speaker Kieran Bridge............................................................................................ Error! Bookmark not defined.
Chung v Siew: examples of Applications for Documents and Strike Defence ............................................................... 56
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GENERAL PRINCIPLES OF CIVIL PROCEDURE
Importance of Proper Procedure
The importance of proper procedure in civil litigation is critical; Civil litigation can be won or lost on procedure alone.
The Object of the Rules - the Rule of Proportionality – Rule 1-3
Object R 1-3(1)
“The object … is to secure the just, speedy and inexpensive determination of every proceeding on its merits”
Proportionality R 1-3(2)
“Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far is practicable,
conducting the proceeding in ways that are proportionate to
(a) The amount involved in the proceeding
(b) The importance of the issues in dispute, and
(c) The complexity of the proceeding
Application of the Rule
Both sides argue proportionality on a great number of points and there is great imprecision in what it means and how to
apply it; thus, there is a lot of room to argue this point
ETHICS IN CIVIL LITIGATION
*see also Ethics and Experts/Ethics in Civil Litigation
The Code of Professional Conduct
Generally:
 Prepared by the CBA; each province models their own off of the national standard
 Ethical codes are not definitive, rather they act as ethical guidelines
 Regulates the ramifications of running afoul the standards of legal ethics.
 very unsympathetic law society, and Career destroyer.
 It isn’t that difficult to get reported to the law society. Being aware of the rules and standards is not only
defensive but also because we should move away from the inherent adversarialsim of the profession
Provisions:
2.1 - Cannons of Legal Ethics
“for historical value”....but also as a “statement of general principles”:
“promote the interest of the state, serve the cause of justice, maintain the authority and dignity of the courts, be faithful
to clients, be candid and courteous in relations with other lawyers and demonstrate personal integrity”
 2.1-1: “duty to the state”
o not to counsel, aid or abet anyone contrary to the law
 2.1-2: “candour and fairness” in court
o being candid with the court is different than withholding information without lying.
 2.1-3: Duty “to the client”
o to fully inform oneself in giving legal advice, not to have conflict of interest, represent clients fairly, and
honourable.
 2.1-4: Duty to other lawyers
o courtesy and good faith; Having a good relationship with opposing counsel is not harmful to your client’s
interests; “avoid all sharp practice”
9
o

Certainly does not promote adversarialsim. Your opposing counsel will be much more willing to assist
you if you assist them on matters that would not otherwise harm your client
2.1-5 Duty to Oneself
o (c) “make legal services available to the public in an efficient and convenient manner that will command
respect and confidence”
o Being a decent human being is more important that being the most successful lawyer in the business
2.2 - The Duty of Integrity
 2.2-1: A lawyer has a duty to act with integrity and honourably in all areas of practice towards all persons
o Commentary (3) “dishonourable or questionable” practices in personal or professional life can cause you
to be disbarred....eg. drunk driving or other criminal activity.
 2.2-2: A lawyer has a duty to uphold the standards of the legal profession in the interest of advancing the goals,
organizations and institutions
3.1 -Relationship to Clients
 3.1“competency” – you have an ethical obligation to keep abreast of the knowledge and skills required to do
your job
o You can be sued for negligence. If it is gross negligence you can be disbarred for lack of competence
3.2 - “Quality of service” – duty to provide courteous, thorough and prompt service to clients
 3.2-4: Encouraging Compromise/Settlement:
o Lawyer MUST advice client to compromise or settle dispute and MUST discourage client from
proceeding with useless legal proceedings
o ADR, mediation. Always try to settle out of court. Not always in the interest of the lawyer to do this, less
money, but with the court being over-burdened, and the cost of legal services so high, it is an obvious
duty for the benefit of the entire judicial system and greater society.
 3.2-5: Threatening Criminal or regulatory proceedings
o “a lawyer must not in an attempt to gain a benefit for a client, threaten or advise a client to threaten:”
...proceed with a criminal charge or to make a complaint to a regulatory body.
o If you think there is a crime, report it, but do not try to extort money from them
 3.2-6: Inducement for withdrawal of criminal or regulatory proceedings
o Lawyer must not take valuable consideration in exchange for influencing the crown
 3.2-7 Dishonesty, fraud by client
o Lawyer must not engage in or assist crime, fraud, dishonesty
3.3 - Confidentiality
 3.3-1 Lawyer must keep all information wrt affairs of a client strictly confidential
 3.3-3 Public Safety Exception
o EXCEPTION: may disclose information if there is imminent risk of death or serious bodily harm and
disclosure is necessary to prevent it.
Critical Dialogue on the Ethics of Lawyering in Walker
The dominant model of lawyering has historically been understood as the exclusive professional interests of the lawyer’s
client: Paradigms of “the zealous advocate”, “amoral technicians”, “hired guns” and “neutral partisans” abound.
However, more recently, this standard has shifted, to embrace alternative models of lawyering, called “moral
lawyering”, “sustainable professionalism” and “critical morality”.
Atkinson – “How the Butler was Made to do it”
A parable of a rich household, in which the reactive choice of the butler is critically analyzed against the choice of the
head housemaid Kenton to the legally proper firing of two Jewish Housemaids for the fact they are Jews. The Butler is
10
neutral to the goings-on and carries out his order to fire the maids, while Miss Kenton displays outrage at the decision
and quits
 Neutral Partisanship (The Butler) :
o Advancing the client’s needs by all legal means
o Neutrality allows the professional to claim disinterest or antipathy towards the client’s ends, and allows
them to claim moral non-accountability
o The professional’s job is that of a technician of a large, complicated machine
o The moral dimension of one’s professional role derive from the moral standing of the employer;
deference to the client’s morality absent illegality. Therefore, where a lawyer has helped a client
exercise their legal rights, they have acted in a moral way.
o Hobbesian, positivist notion that “[e]nds are neutral, individual, subjective and arbitrary”
 Moral Activism (Miss Kenton)
o Taking direct moral responsibility for the immediate consequences of ones actions, rather than isolation
oneself from the professional role.
o Decline to plead moral absolution for assisting client’s in unjust acts; alternately one should act
affirmatively to promote the ends of justice
o Its is about the discovery of truth and the protection of individual rights
 Moral Isolationism (the common ground)
o Both moral activism and neutral partisanship fail to address dialogue; dialogue with each other and
dialogue with the client
o Before deciding to assist (NP) or withdraw (MA), there is a point in time in which the lawyer may
attempt to persuade the client to do the morally right thing. This occurs before the divergence of a
choice to be made, thus allowing the first two approaches to converge at some point in time.
Kennedy – “The Responsibility of Lawyers for the Justice of their Causes”
Vacuous Piety of lawyers who believe that the ethical pledge is non-controversial. However, there is a multiplicity of
ways in which “ethical lawyering” may be construed:
 Avoid Malpractice: do the best you can to achieve the object of your client, short of illegality
 Do the Right thing: turn down jobs if your client is doing something terrible; lawyers are more than technicians
Doing the right thing is more important: “you are tarred with the bad actions of clients that you facilitate in your work as
a lawyer” (p 190).
 Money: There is plenty of it out there, that you don’t need to take on cases that are morally wrong to afford a
Porsche.
 If you don’t do it, someone else will: let the person doing the immoral lawyering be someone other than you.
Take the high road.
 Client Rights: certainly client are entitled to enforce their legal rights. However, lawyers are entitled to uphold
their moral beliefs
RESULT of Doing the Right Thing…BASIC ECONOMICS – clients who try to advance their immoral interests will have to
pay more for legal services:
o “If you - if most lawyers – took the choice of clients seriously according to the vacuous piety that you
should avoid doing harm with your lawyer skills, it seems likely that some clients would have to pay more
for less legal service, and other people would get more service more less money”
Hutchinson – “Legal Ethics for a Fragmented Society: Between Professionalism and Personal”
Problems with Lawyering and Legal Ethics:
 Traditional views of lawyering are narrow and unrealistic
 Codes of professional conduct are imprecise, vague, and short on serious instruction; unhelpful
 Ethics under this model is reduced to technical compliance; it is about conformity
 Legal ethics is less about a code book and more about a continuing practice within which lawyers construct
acceptable norms of behaviour
11

Moral reasoning is NOT proof and authority , but justification and persuasion – acting ethically cannot be
reduced to adherence to a Code
How to fix it:
 Awareness, self-interrogation on our own moral judgements and responsibility, it needed
 Dialogue, education, including morality into every narratives of lawyering
Abella – “Professionalism Revisited”
Three Basic Values of Good Lawyering:
1) Commitment to Competence
2) Commitment to Ethics
3) Commitment to Professionalism
Pollution of the Idealistic Notions of Ethical Lawyering:
1) Economic Pressures:
 Fear of economic loss – many people got rich in the 80s, and developed an intense fear of losing it, and as
such, their generosity became muted, sedated by greed. Intense billing, fierce competition, and a restriction
on acceptable practices for incorporating life and lifestyle into lawyering (eg vacation) ensued.
 Economic Darwinism resulted, causing lawyering to resemble less of a profession and more of a trade.
 Extraordinary economic pressure on lawyers, particularly in small firms or sole practitioners, to be able to
keep up with extra-ordinary costs.
ULTIMATELY, while economic pressure is stressful, it cannot justify an absence of professionalism in ones work, at either
end of the economic spectrum
2) Process Preoccupation
“We have moved from being a society governed by the rule of law to being a society governed by the law of rules”
 Seduced by the notion that process equates to justice
 It is dubious that “justice” requires several years and hundreds of rules
 “People want their day in court, not their years”
o Access to justice:
 “its always been done this way” isn’t going to cut it as an excuse
 Our monopoly as lawyers places us in a fiduciary relationship with the public; we are the
gatekeepers to justice: “Process is the map, lawyers are the drivers, law is the highway, and
justice is the destination”
Solutions to the Problem: How do we reinstate Professionalism?
1) Law Society must establish its priority to be facilitating as many ethical options for lawyers as possible
2) Law Society must implement services for lawyers to assist them in navigating the break neck speed changes in
law, information and technology
3) Women’s equality in the legal practice does not end at letting women practice, it includes the realization and
accommodation for the fact that women historically are the primary caretakers in families and have more homebased work than men, greatly reducing their opportunities; additional issues of intersectionality of disability,
and race must also be accounted for.
4) Eliminate bar articling and bar association bourses – this “pedagogical gauntlet” is unnecessary and places more
financial strain on upcoming lawyers who are leaving school with heavy debt and financially must start working
as soon as possible.
5) Incorporate ethics into law school; create a pattern of life-long empathy and moralism
6) Law Society should set an example in leadership: being on the frontlines of important moral issues teaches
lawyers by example to do the same
7) Redefine the profession to focus not on money and hard work. While those may indeed be important, lets shift
the focus to integrity, decency, compassion, wisdom, courage, innovation and idealism
Backhouse – “Gender and Race in the Construction of Legal Professionalism: Historical perspectives”
 The idea of “Professionalism” in law is a hollow front to enable lawyers to exercise their power to exclude others
based on gender, race, class and religion.
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
The norms of the legal profession have historically been framed around deeper entrenched notions of
masculinity, white supremacy, and class privilege
 Homogenous nature of the profession is starkly obvious, in the staunch resistance to diversification
 Under-representation of in the legal profession of women and minorities, have caused these groups to have less
access to justice, particularly Canadian First Peoples. Historical examples:
o Ontario lawyer representing a KKK member who used mob intimidation to prevent the marriage of a
white woman to a black man believed he had done a “humane, decent thing in taking her away from
that man”
o Regina lawyer arguing the validity of the Anti-Chinese law prohibiting white women working for Chinese
men, as Chinese were “unsavoury” and white women lost “caste” after having worked for Chinese
o Generally, many historical instances in Canada of lawyers accusing women and children of fabricating
sexual complaints
 Naturally, being that white men dominated the profession, they ultimately dominated on the bench as well:
o Ont CJ Campbell proclaimed lawful a husband’s right to beat his wife, an edict that stood for decades
o The Donald Marshall Inquiry, into the wrongful conviction of a Nova Scotia First Nations man by an
appellant panel of five white judges who upheld his conviction
Solutions to White Male Supremacy in the Legal Profession
 Collegiality and Professionalism are meaningless words as they have been used to justify the need to hire and
retain members who “fit the mold”, and blend in well to the existing homogeneity
 Alternately, this focus must shift to different more concrete ideals, such as anti-racism, gender equality, respect
for First Peoples, religious tolerance, reduction in wealth disparity, and social justice.
Farrow – “Sustainable Professionalism”
 Historically, being a lawyer is to make a “pact with the devil”
 However, lawyers are increasingly looking for ways to practice that allow them to have lives apart from law, to
have families and work-life balance.
 Modern discourse on ethical sustainability challenge the centrality of unqualified loyalty to client interests, a
moving away from the “hired guns” model of lawyering
 The emerging modern approach to lawyering has been seen as unrealistic in practice, however, this argument is
incorrect. It is not unrealistic, it is just more complex:
o “By moving beyond the centrality of the client’s interest as championed by the dominant model, instantly
we open ourselves up to competing and potentially irreconcilable interests….we need to live in a world of
those complexities, not in a world of fictional simplicity” (p 210)
PLEADINGS
The Legal Evolution of Pleadings
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In the 19thC, pleadings became mired in technicalities and arbitrary distinctions, as in the First Report of the Law
Commissioners.
As late as the 1970s, the artificially and disingenuousness of pleadings was the subject of complaint by law
reformers:
o “Pleading … resembles nothing so much as naval warfare before the advent of radar, when each side
made blind forays into the sea area of the other, while giving away as little as possible about the
disposition of his own forces.” Justice Society (1974), p 13
Modernly, there are proponents of eradicating the use of pleadings, related to issues of access to justice, as
people representing themselves find it very difficult to write their own
 The reality, wrt to Access to Justice, however, judges are very generous in assist unrepresented persons,
bestowing a wide latitude for amending pleading, as unrepresented litigants are so prevalent as people
simply cannot afford lawyers.
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What is a Pleading?
Rule 1-1: Definition of “Pleading”
Pleadings consist of the following: “notice of civil claim, a response to a civil claim, a reply, a counterclaim, a response
to counterclaim, a third party notice or a response to third party notice”
 An AFFIDAVIT is NOT a “pleading” - it contains evidence and not simply material facts.
 A PETITION (and responses) also NOT, strictly speaking, pleadings, but they do require pleadings of material
fact by forms 66 & 67.
o A petition is a form of litigation that is carried out under its own rules: where the facts are not in
dispute, you may elect for a petition hearing: its faster than going to trial, and a lot cheaper.
 A petition is not an action, it is a proceeding.
 Judge may deny an application for a petition hearing if the facts are in dispute, and where it
must therefore go to trial for facts to be adjudicated.
Purpose of Pleadings
The primary purpose of a pleading is to define the issues (Jones v Donaghey, 2011 BCCA) and to inform the parties in
advance of the case they have to meet so as to properly prepare for it (Farrell v Secretary of State of Defence 1980 HL)
Importance of Filing Correct and Full Pleadings
Procedural Ramifications for filing inadequately drafted pleadings:
 Amendments to Pleadings: Notionally you can amend pleadings at any time, even at trial, and in appellant
courts, however, it is not guaranteed – see Mack SCC 2001 for example
 Oral Discovery: counsel asks questions related to the pleadings; if there is nothing in the pleadings, opposing
counsel can object to allowing their client to answer outside of the information in the pleadings provided them
 PARTIES MAY ONLY RELY ON THE CONTENTS OF THE PLEADINGS (Rodaro)
Rodaro v Royal Bank of Canada (2002 ONCA) - Parties May Only Rely on the Contents of the Pleadings
“It is fundamental to the litigation process that lawsuits e decided within the boundaries of the pleadings.”
JJM Construction v Sandspit Habour Society (2000 BC) – Parties may not rely on defences not pleaded
Facts: In action against D, D failed to plead the defence of failure to mitigate and then sought to rely on it
Held: D may not lead a defence of failure to mitigate, as it was absent in the pleadings
Whiten v Pilot(2002 SCC) Parties must plead specifically the remedies sought
Facts: D insurance company raised allegation of arson in bad faith against the insured P. D failed to plead punitive relief
and then tried to retain punitive damages as remedial relief.
Held: Allowed the P punitive relief, but gave huge lecture on filing proper pleadings.
Jones v Donaghey (2011 BCCA) – in failing to specifically plead a material fact, one cannot import an issue
into the pleading on the basis that it is relevant to an issue plead (MENTAL HEALTH)
Facts: P pleads that D committed intentional assault against an infant in her care (shook a baby). This case is an appeal
to the lower court’s order on application from the P that D must attend a psychiatric evaluation pursuant to Rule 7-6
Held: The P did not sufficiently plead the Ds mental condition in order to persuade the court to order an inspection
under Rule 7-6. The Primary purpose of a pleading is to define the issue.
Pleading Conclusions of Law – Rule 3-7(9)
Rule 3-7(9): Conclusions of law must be not be pleaded unless the material facts supporting them are pleaded”
Material Facts Requirement – Rule 3-1(2)
Rule 3-1(2):
“A notice of civil claim must...
(a) set out a concise statement of the material facts giving rise to the claim”
Material Facts are facts that are NECESSARY to establishing a cause of action or a defence to it.
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The line between a material fact and evidence is not always clear; it is a matter of degree, in determining the
appropriate level of generality.
However, despite the rule against it, it is always better to plead more than less; although a judge may criticize a
lawyer for their verbosity, it is better than inadvertently excluding a material fact. Caution though, that judges
may strike pleadings on this basis if it is over the top
Pleadings Must Not Contain Evidence – Rule 3-7(1)
Rule 3-7(1):
“A pleading must not contain the evidence by which the facts in it are to be proved.”
 However, this rule is generally not strictly enforced unless the pleading is confusing, prolix, confusing, or
prejudicial (Homalco Indian Band v BC 1998 BCSC)
Parties May Demand Particulars – Rules 3-7(18) to (24)
Definition of Particulars
PARTICULARS are “additional bits of info or data, or detail that flesh out the material facts, but they are not so detailed
as to amount to evidence.” Copeland v Commodore Business Machines (1985 Ont)
 If a party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, or if
particulars may otherwise be necessary, full particulars including dates and items must be stated in the pleading
(R 3-7(18))
 If required under (18), if the particulars are lengthy, must serve particulars in a separate document (R 3-7(19))
 Must only be plead to the extent they are known, but further particulars may be served after they become
known, within 10 days of a written demand (R 3-7(20))
 If the action is for libel or slander, if the words are alleged to be used in a derogatory sense, the P must provide
support of this claim and if the D claims that the words are in fact true, D must give particulars supporting that
the words are true (R 3-7(21))
 Court may order a party to serve further or better particulars (R 3-7(22))
 Demands for particulars must be made to the party in writing prior to applying for a court order (R 3-7(23))
 A demand for particulars does not operate as a stay of proceedings (R 3-7-24))
When are Particulars Normally Used?
 In a defamation case
 A verbal contract where the essence is wrt the precise wording
 Insurance policies, very often a single word is being fought over
 General Rule of Thumb: DON’T QUOTE
Amending Pleadings
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A party can unilaterally amend pleading at any time before the earlier of
1) the delivery of the notice of trial or
2) the date of the case planning conference
Amendments to Pleadings are generally allowed at trial, subject to issues relating to limitations and prejudice to
the opposing party
Evidence may not be required on an application to amend, except where limitation and/or potential prejudice to
the opposing party may be involved
Delay in amending is generally not determinative unless there is prejudice. Pleadings are amended on the eve
of trial during trial and even (rarely) on appeal. Delay not the issue; prejudice is.
Pleadings can be amended to properly identified parties: fixing a person’s name, correcting a company name,
providing for name changes
Legal Arguments to Allow and Disallow Amendments
 Legal arguments to persuade a court to amend include:
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o
o
o
Rule 1-3(1) - object of the Rules “is to secure the just, speedy and inexpensive determination of
proceeding on its merits”.
 The court does not want to knock you out on a technicality
 the opposing side will argue prejudice
Rule 1-3(2): proportionality, balancing:
 Argue that it is in the interests of justice considering monetary value, importance and
complexity to allow it
 this argument can go both ways
Law and Equity Act s 10: courts must grant all remedies that parties may appear to be entitled to “so
that as far as possible, all matters in controversy bt parties may be completely and finally determined,
and all multiplicity of legal proceedings concerning any of the matters avoided”
 Party leading this argument would state that it is in the interest of justice for their client to
be entitled to determine all matters and legal proceedings
 Opposing council will argue Rule 1-3: Not speedy, not inexpensive: if is more money and
for both sides to allow a party to throw out more issues when the other side has been
prejudiced by the delay? Not just!
 Or may argue that starting a new action is going to help you; causes multiplicity.
Amendments to add or substitute parties
The court may order the addition of a person at any stage of the proceeding where:
 The person “ought to have been joined as a party”
 The person`s joinder is necessary to ensure that all matter in the action may be effectually adjudicated or
 As between the person and any party in the action, a questions or issue relating to or connected with
i)
Any relief claimed in the action or
ii)
The subject matter of the action that, in the opinion of the court, it would be just and
convenient to determine as between the person and that party
Amendment to Add a Cause of Action Where Limitation Period Has Expired
Limitation Act gives crt discretion to allow amendment to raise a claim after expiry. A party can amend unilaterally at
any time before the notice of trial.
 Allowing an amendment in this circumstance may more accurately represent the interests of justice and if the
delay doesn’t cause prejudice, the court is likely to allow the amendment.
STRIKE PLEADINGS
1) Serious Defect 2) Abuse of Process
Court may strike pleadings for SERIOUS DEFECT– Rule 9-5(1)(a)
 Rule 9-5, generally is a codification of the superior court’s inherent jurisdiction to strike pleadings
 Applies to pleadings and defences, but also to defective or improper exhibits to affidavits or other documents
Rule 9-5(1)(a) - the court may strike a pleading if it is seriously defective that does not disclose a reasonable cause of
action or defence.
Policy Rationale: It saves time and money by striking cases early on that have no chance of success
o “The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping
measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless
claims and ensuring that those that have some chance of success go on trial” Knight 2011 SCC para 19
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Plain and Obvious Test for determining a serious defect (Hunt in Knight BCCA 2009 at para 20)
o Is it “plain and obvious” that the statement of claim discloses no reasonable cause of action? The
threshold for determination is Only if the action is certain to fail
o Factors irrelevant to consideration:
 Length and complexity of the issues
 The novelty of the cause of action
 Rationale: “the approach must be generous and err on the side of permitting a novel but
arguable claim to proceed to trial...as often new developments in the law first surface
on motions to strike or similar preliminary motions” and so” (Knight SCC 2011)
 The potential for the D to present a strong defence
No evidence is allowed on an application to strike under this sub-rule Knight 2011 SCC para 22
Knight v Imperial Tobacco Canada Ltd (2009 BCCA) – court will strike applications, or portions of applications that,
plain and obvious, cannot succeed by serious defect.
Facts: Class action proceeding by Knight and others for the refund of money spent on purchasing cigarettes
manufactured by ITCAN and designated as “light”, “mild” etc. ITCAN issues third party notice against Canada; Canada
applied to strike the 3rd party application on the basis that it was “plain and obvious” that the claim cannot succeed
Held: Applying the Plain and Obvious test in Hunt, Court allowed the appeal and set aside an order striking the entire
amended 3rd party notice and substituting in its place an order striking only the portions of the amended 3rd party
notice relations to the claims of ITCAN that were plain and obvious to fail related to statutory and equitable
indemnification by Canada, and Canada’s DOC wrt the design of mild and light tobacco strains.
R v Imperial Tobacco Canada Ltd (2011 SCC) – articulation of the purpose of strike pleadings, importance of
allowing novel issues, disallowance of evidence in strike application, proper remedy is amendment.
Facts: This appeal to the SCC concerned the Costs Recovery case and Knight. Canada appealed the lower court decision
to partially allow ITCANs 3rd party application. ITCAN cross appealed to reinstate the full amended third-party notice.
Held: Canada’s appeal allowed. ITCANs cross-appeal dismissed. ITCANs appeal to reinstate the amened 3P notice is
plain and obvious to fail, it had no reasonable prospect of success. It is not in the interests of effective and fir litigation;
the court must err on the side of allowing novel arguments, as this is where the evolution of law occurs, however, this
is not novel, it is simply hopeless. Evidence on an application to strike is inadmissible and facts must be plead if parties
wish to raise them; a judge cannot consider mere possibilities. The proper remedy in such cases is amendment of the
pleadings.
Court may strike pleadings that are an ABUSE OF PROCESS– R 9-5(1)(b), (c), (d)
Rules 9-5(1)(b)– the court may strike “unnecessary, scandalous, frivolous or vexatious pleadings”
 Unnecessary: unclear meaning; court will strike on this ground if applicant shows prejudice or inability to plead
a response
 Scandalous: indecent, offensive, incapable of proof
 Frivolous: unsustainable, illogical, nonsensical facts pleaded
 Vexatious: cases brought as an attempt to harass the opponent rather than solve a genuine issue
Rule 9-5(1)(c) – court may strike pleadings if “it may prejudice, embarrass or delay the fair trial or hearing of the
proceeding”
 This sub-rule is often used to strike pleadings that are incomprehensible, prolix, and/or contain irrelevant
matters or distracting and unnecessary issues
Rule 9-5(1)(d) – the pleading “is otherwise an abuse of process”
 Although sub-rules (b) and (c) contain elements of abuse of process, this sub-rule is used where the applicant
seeks to emphasize the abuse. Ex. In cases in res judicata, collateral attack or, generally, improper procedure.
o EXAMPLE: Application to strike defence in Chung v Siew for breach of multiple court orders
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SUMMARY JUDGEMENTS
What is a summary judgement?
A summary judgement is a judgement made by a court summarily – that is, without a full trial.
When Can Summary Judgements Occur? – Rule 9-6
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A person bring a claim may apply to the court for a summary judgement (Rule 9-6(2))
An answering party may respond may respond that the claiming party’s pleading does not raise a cause of action
(Rule 9-6(3)(a)) and the party must rely on affidavit material or other evidence to show there is a genuine issue
for trial (Rule 9-6(3)(b))
The court may make summary judgement where if finds not genuine issue of law (Rule 9-6(5)(a)), where the
only genuine issue is the amount to which the claiming party is entitled (Rule 9-6(5)(b)), if the only genuine issue
is an issue of law and not of facts (Rule 9-6(5)(c)) and may make any other order it sees fit to further the objects
of the Rules (Rule 9-6(5)(d))
If the court believes that the applicant party has engaged this provision in bad faith to delay the proceedings,
the court may fix the costs or the period within which to pay those costs (Rule 9-6(9))
Substantial Change between Old Rules to New Rules
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OLD RULES: a court should not attempt to determine a bona fide issue of fact or law on a summary judgement
NEW RULES: there is a distinction between issues of law and issues of face or mixed fact and law.
Therefore, if the facts are not in dispute, and it is only a question of law then the court can pronounce
judgement accordingly:
o “the mandatory language of Rule 9-6(5)(a) as requiring the court to grant judgement when it is satisfied
that there is no genuine issue for trial with respect to a claim or defence” (LD Guardian ad litem, para 15)
LD Guardian ad litem v Provincial Health Services Authority (BCSC 2011) – where a party neglects to properly
plead a bona fide triable issue, the court may order a period for pleading amendment pursuant to 9-6(5)(d)
Facts: P seeks remedy for action alleging negligent and/or fraudulent concealment of material facts and unlawful search
and seizure for BC’s use (storage and testing) of newborns’ blood samples without permission or disclosure. P resists D’s
claim of no triable issue on the basis that the statement of claim cannot be resolved on summary judgement because Ps
will at a minimum be successful in arguing liability against BC
Held: No genuine traible issue wrt taking and testing blood, or storage. HOWEVER, the judge ruled that – absent in the
pleadings – there WAS a genuine triable issue wrt allowing external researchers unfettered access to the blood samples
for testing unrelated to the specific infants from whom the blood was taken.
SUMMARY TRIALS
What is a Summary Trial?
A summary trial is a trial by affidavit evidence only or a truncated process.
Policy Rationale
POLICY: the purpose of 9-7 is to secure a just, speedy and inexpensive determination of every proceedings on its merits
pursuant to Rule 1-3 (Inspiration Management). Significantly less cost, and time.
When Do Summary Trials Occur? – Rule 9-7
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
A party may apply for summary trial wrt to an action for civil claim, a 3P proceedings, an action by way of
counter-claim or one that has been transferred to the trial list (Rule 9-7(2))
Application must be heard with 42 days before scheduled trial date (Rule 9-7(3))
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Applicant and each party may tender evidence by (a)affidavit (b) an answer to interrogatories (c) evidence from
oral discovery (d) an admission under R 7-7 (e) expert opinions (Rule 9-7(5))
Court may adjourn the application (Rule 9-7(11)(a)) or dismiss the application where the judge determines
summary trial is not suitable or will not assists in the efficient resolution of the dispute (Rule 9-7(11)(b))
Court may order (a) a party file and serve affidavits or notice (b) persons who swore affidavits to attend for
cross-examination (c) cross-examinations be completed within a fixed time (d) not further evidence be tendered
or (e) a party file and serve a brief within a fixed time (Rule 9-7(12))
Court may (a) grant judgement unless (i) the court is unable to based on the evidence or facts or (ii) it would be
unjust to do so (b) may impose terms wrt enforcement or (c) award costs (Rule 9-7(15))
If a court is unable to grant judgement under (15), and believes the process should be expedited, the court may
order the parties to attend a case planning conference, maky any order under R 5-3 or make any other order to
further the objects(Rule 9-7(17))
Application of 9-7 – in Inspiration Management (BCCA 1989)
Rule 9-7 gives judges broad discretion tempered by safeguards:
o Chambers judge cannot give judgement unless she can find the necessary facts to decide issues of fact
or law
o Chambers judge, even if she can decide the necessary factual and legal issues, may nevertheless decline
to give judgement if she thinks it would be unjust to do so
o The fact the a trial will be different from a summary judgement process is not sufficient reasoning to
deny an application for summary judgement
Conflicting facts in pleadings on affidavit does not mean that the issue should be sent straight to trial:
 The judge can adjourn the application and order cross-examination on one or more affidavits, or
 could order the respondents to appear to be cross-examined before him or another judge after which time it
may be possible to find the facts necessary to give judgement.
The Standard for a Summary Judgement is the same as for trial.
o 1)Upon the facts being found, the chamber judge must apply the law and all appropriate legal principles.
o 2)If satisfied that the claim or defence has been established according to the appropriate onus of proof
she must give judgement according to the law unless she has the opinion it will be unjust to give such
judgement.
Inspiration Management v Mc Dermid (1989 BCCA) - Sets out the rationale for summary trial and its proper
application
Facts: Conflicting affidavits - D, a brokerage, sold Ps company shares when P failed to pay back a loan. D claims the
shares were security against the loan; P claims that was not decided, only $3000 fee was security, as per a letter drafted
by the parties. Chamber judge dismissed Ps motion for summary judgement b/c she found that a judgement should not
be given unless a trial would not have made a difference to the outcome (page 2). Appeal to the dismissal of the
motion for summary judgement.
Held: summary trial is appropriate here
Reasoning: The trial judge erred in finding that a trial was preferred to summary judgement in this case. Of course, it will
always be different at trial, and therefore that cannot be the standard by which decision is made.
 Conflicting pleading of facts on affidavit does not mean that the issue should be sent straight to trial:
o The judge can adjourn the application and order cross-examination on one or more affidavits, or
o could order the respondents to appear to be cross-examined before him or another judge after which
time it may be possible to find the facts necessary to give judgement.
 Chambers Judge should have cross-examined the parties to determine the facts from the conflicting affidavits
and if possible, make judgement if not unjust to do so.
Why might one want to go to trial over having a summary trial?
 From POV of D, to delay the process
o Maybe the case will be abandoned, witnesses die
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o You don’t always want the court to tri the case on its merits if its not in your favour
If credibility issues (like Inspiration), you`ll want it to go to trial to better determine who is lying
document intensive cases are difficult to deal with in a Summary trial context. How do you address all of the
information? You cannot do it with the same attention to detail as in a trail.
A problem with 9-7 is heresay: have to be aware of heresay issues in affidavits. Some judges are more relaxed
with heresay in summary trial than trial.
HOW TO BRING AND RESPOND TO APPLICATIONS (“MOTIONS”)
The Mechanics of Making Applications Rule 8-1
Notice of Applications – Rule 8-1 (4)
 A Notice of Application must be in Form 32 (Rule 8-1(4)) and must:
o (a) set out orders sought or attach draft of the order sought
o (b) briefly summarize the facts
 “briefly” means not verbose, but it doesn’t mean ignore facts that will be material to you
application. Some cases are complex and its necessary to have long facts
o (c) set out the rules
 Some lawyers choose to be slim in their applications to keep their cards to their chest. Don’t do
this; don’t be sneaky. Have integrity and make a full, open and honest argument
o (d) list the affidavits and other documents on which the applicant will rely on
o (e) set out estimated time hearing will take
o (f) set out date and time of the hearing
o (g) set out the place for the hearing
o (h) provide data collection information required
 And the Notice of Application must not exceed 10 pages in length
Response to Notice of Application – Rule 8-1(9), (10)
 RULE 8-1(9): A respondent to a Notice of Application must, within 5 days of receiving NOA:
o (a) file an application of response
o (b) file affidavits and other documents
o (c) serve on applicant 2 copies each: response application, affidavits, or if under 9-7 and additional
requirements under that provision
 RULE 8-1(10): An application must be in Form 33 and not exceed 10 pages and must:
o (a) indicate whether party consents to, opposes or takes no position on NOA orders sought
o (b) if the respondent application opposes: (i) briefly summarize factual and legal basis, (ii) list affidavits
to be relied on and (iii) set out the respondent’s estimate for time to do the hearing
HOW A CHAMBER’S APPLICATION WORKS
Basic Mechanics
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Apply to court and get court date
Will get justice or master (lower form of judge who deals with procedural matters that a judge could do and
used to do. Matters involving inherent jurisdiction can only be heard by a judge)
o More likely to be starting our being heard by a master in this process
Appear on that date and sign in with clerk
Sometimes matters are arranged by length, if your matter is lengthy, you might get bumped
Many parties are present for procedural applications
Wait until your matter is called
o Move to front of court room and give your name, spell it and give your initial
o If you’re a junior, usually a superior lawyer will introduce you
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If you are the applicant:
o Judge will address you and you will get up and present your application in a focussed way
o When one counsel stands up, even if they are interrupting you, it is customary to sit down.
Presenting an Application in Chamber’s Court
1)
2)
3)
4)
5)
6)
7)
start with the order sought, and (briefly) what rule order is pursuant to
Set out the background to the litigation: what is that action?
Lay out your specific request: what EXACTLY are you looking for
Set out the law
Set out the parties’ position
Ensure to include Procedural History
Include Evidence, factual foundation, that speaks to the specific rule in your application. (Almost always will
have reference to your affidavits.)
8) Avoid Value judgements: present information factually, objectively
9) You can make reference to transcripts as evidence
10) Ensure that when you are laying out case law, you distinguish or analogize the case to your facts
Responding to opposing counsel in an Application in Chambers


Specifically address the arguments of opposing counsel ...
o “My friend say “a”, but the facts show “b””
Then the justice/master will give judgement: this is final. (Except sometimes, judge forgets to address costs, and
counsel can stand up and request she address costs. )
DOCUMENT DISCOVERY & DOCUMENT PRODUCTION
Importance and Purpose of Document Disclosure
The purpose of document discovery is to obtain evidence, and admissions so as to prepare the case for your client.
Document discovery is at the heart of modern litigation. Documents are reliable evidence, used frequently and
preferred to other evidence by courts, as witnesses lie, but documents are an objective source of information. Court like
documents because they are better than human memory. (BUT they don’t like carloads of documents.)
Policy Rationale for Document Discovery Rules
The Old test for document disclosure – the Peruvian Guano Test – compelled voluminous disclosure; it required any
document remotely related to be produced. This was replaced under the new discovery disclosure provisions, creation
a new materiality test in line with the objects of the Rules pursuant to Rule 1-3(1) and (2), that is, the “just, speedy”
determination of every case on its merits (Prybysz). The materiality test is much narrower and requires that all
documents must be produced that have been or are in a person’s control and can be used to prove a material fact.
Materiality Test Application & the Mechanics of Document Discovery Requirements – Rule 7-1
Step 1: Rule 7-1(1)(a)
 At first instance, parties must disclose documents that “could, if available, be used by any party of record at trial
to prove or disprove a material fact” (Rule 7-1(1)(a)(i)) and documents that “the party intends to refer to at trial”
(Rule 7-1(1)(a)(ii))
 The parties are not required to make an exhaustive list of documents which may lead to a “train of inquiry”
promoted by Gauno (Przybysz)
 Counsel has an ethical duty to ensure full compliance with disclosure requirements (Privest; XY LCC)
Step 2 (a): Rule 7-1(10) - unjustifiable exclusion of documents requested under 7-1(1)(a)
 If an opposing party believes that a document has been excluded, they may apply under (10):
 The party must write to the other party demanding documents of classes of documents that they believe should
have been included pursuant to R 7-1(1)(a)
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AND/OR
Step 2(b): Rule 7-1(11) – extra discovery in addition to documents required under 7-1(1)(a)
 Party may demand in writing of the other party to produce additional documents (NOT just a list, but the actual
documents
 The demand must “with reasonable specificity” indicate “the reason why such additional documents or classes
of documents should be disclosed”
Step 3: Rule 7-1(12) – responding to a demand under (10) or (11)
 The party on which the demand is being made may oppose the extra disclosure of documents
 There is a high burden to justify refusal, and the explanation for such must satisfy beyond the objectives of the
Rules pursuant to R1-3
 If a party argues privilege, the party must satisfy the basis of this privilege (Przybysz; ProSys)
o Note that privileged documents must be listed, regardless of whether you are producing them, and
provide enough description to justify why they are privileged and why they will not be produced. Can be
privileged on three counts:
 Solicitor/client
 Litigation (Solicitor’s brief)
 Settlement (without prejudice)
Step 4: Rule 7-1(13) – discovery request under (10) or (11) not resolved by (12): apply for court order
 At this stage, if the parties are unable to resolve the determination of the dispute relating to (10) or (11), a
party may make an application for a court order
Step 5: Rule 7-1(14) – discovery request under (10) or (11) not resolved by (12): dissemination of court order
 Court has power to refuse the 7-1(11) demand
 Court will consider the objects of the rules pursuant to R 1-3; proportionality must be the primary
consideration (Przybysz)
 there must be evidence of the existence and relevance requiring the extra discovery under (11) and such
evidence normally will be from oral discovery. However, oral discovery does not have to occur prior to an
application for extra discovery under (11) (Przybysz)
 The court is wary of authorizing a “fishing expedition” (Przybysz para 52)
 If it is reasonable to explore potential issues in cross-examination on oral discovery before granting extra
disclosure, the court will refuse to order extra document discovery (Przybysz)
 The onus is on the party making the 7-1(13) application to establish the sub (11) criteria and failing that, the
court will not grant the extra document discovery (Przybysz para 56)
Modern Relevance of the Old Guano Test (XY LCC v Canadian Topsires, BCSC 2013)
HOWEVER, the New Rules have NOT entirely displaced the OLD GUANO TEST; modernly applicable wrt Rule 7-1(11):
 A successful demand for extra discovery under sub (11) requires:
o That parties identify additional documents with “reasonable specificity”
o All “relevant documents within each properly identified class must be produced
o Disclosure on relevance basis, but limited to identified categories
o This is a flexible requirement, dependent on proportionality principle and on a case-by-case basis
ADDITIONALLY, beyond the requirements of extra discovery under sub (11) (XY LCC):
 The court has inherent jurisdiction to control its own process (but a party must apply for the court to exercise
this discretion, it is not automatic)
 Therefore, the court is able to order a Full GUANO discovery beyond what can be identified with “reasonable
specificity” pursuant to sub (11)
 In order to do so, there must be a compelling reason within the satisfaction of the object of the rules (R 1-3)
 It is very rare that a full Guano discovery will be ordered
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Privest Properties Ltd v WR Grace & Co (1992 BCCA) – The discovery rule cannot “authorize a search”. Duty of
lawyers to carefully investigate and ensure disclosure of listed documents is complied with.
Facts: Appeal of document disclosure order, application for which requested further and better affidavit verifying its list.
Privest current owner of building, action against WR – supplier of construction materials, specifically MK3, a fireproofing
agent containing asbestos. P maintains D’s disclosure insufficient/incomplete. Had to date taken 9 years for D’s firm to
go through docs to identify those relevant to asbestos – 40K docs exluded for “privilege”, but applying the American
standard, not BC standard. Some docs privileged in US were not privileged in BC. P applies for further documents on the
basis that D swore false affidavit; D says mistakes inevitable considering voluminous requirements of disclosure.
Held: affidavit does not support the application to access to further documents. Appeal of order allowed.
Ethical Lawyering: The system depends on ethical lawyering (para 32): A solicitor “ has a particular duty ...[to] ...carefully
investigate the position and...see that the order is complied with”...The solicitor cannot simply allow the client to make
whatever affidavit of documents he thinks fit” (para 32)
Discovery cannot authorize a search: A party can only “go behind” the list of his opponent if it is supported by affidavit
evidence: “If the court had power to make this order, then it would also have the power to permit a litigant access to all
places in which his opponent might keep docs to see if there is anything relating to any matter in question” (para 39)
Przybysz v Crowe (2011 BCSC) – Discovery must not constitute a “fishing expedition”; proportionality is the overarching guide through the new two-tiered scheme for discovery under R7-1; Case planning transcripts cannot inform
relief sought on application
Facts: P claims damages resulting from injuries suffered in a Motor Vehicle accident; D argues pre-existing injuries but
admits liability. D applied to court for order to document discovery wrt 1) Ps MSP print-out and disgnostic codes 2)
complete copy of employment records going back to 2006 to present (2011) 3) unedited massage therapy clinical
records and 4) costs. P delivered some medical information, including records from family doctor covering the two year
period before the accident, removing gynecological and dermatological information. P has subsequent care crash.
Held: Denied further disclosure for MSP and employment record; adjourned on massage therapy for P to establish
privilege. Scope of disclosure under 7-1: If no rational connection for disclosure of the requested documents; court says
wait until examination for discovery. Has to be more basis for producing documents than a “fishing expedition” (para
44). Proportionality is an over-arching consideration in the two-tiered system/exercising their discretion under sub 14.
 MSP Print-out: A pre-existing condition does not prove that counsel has made out a connection between the
condition and accident-related injury; suggests only a “mere possibility” thus failing threshold
 Employment Record: Court says D fails satisfy their onus that docs beyond already disclosed sick time and work
history is necessary to prove/disprove a material fact, calling it a “fishing expedition” (para 52).
 Massage Therapy: Onus is on P to establish basis for the privilege claimed (para 56). Adjourned to allow the P to
prepare an affidavit on the privileged nature of this documentation.
 Case-planning: Cannot use transcripts from case planning conference as authority for relief sought in an
application. Would impede candid conversation
XY, LCC v Canadian Topsires (2013 BCSC) – Lower standard of “reasonable specificity” under sub (11) and further,
Guano remains relevant where the court chooses to use its discretion to do so (generally reserved for bad behaviour)
Facts: : P was aware that in a prior action, D had failed to produce material docs and some had been deliberately
altered. Thus, P (XY) applied for disclosure of all relevant docs w/o having described them with particularity as required
for “tier two” disclosure.
Held: D ordered to disclose any relevant documents. The broader, more flexible standard of disclosure under sub (11)
and the court’s inherent jurisdiction to order a Guano standard of disclosure allows the court to counteract the
restrictions of the new 7-1 standard in cases where it is warranted, such as where there is fraudulence, contempt, and a
high probability of destruction of documents, as in this case.
Pro-Sys Consultants Ltd v Infineon Technologies (2011 BCSC) – may not “dump” large amounts of disorganized
data/info on opposing counsel as it is contrary to the object of a just and speedy adjudication of the issues
Facts: Class action where the Ds are alleged to have engaged in international price-fixing conspiracy. Application for
document disclosure P claims D provided a “data dump” that was irrelevant, unreasonable, duplicative, and
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unsearchable. Seeks an order that D improve the quality and focus of their production to allow reasonable searchability
Held: Ds need to improve their production, in the interest of Just speedy adjudication of issues on the merits per Rule 13(1)
Privileged Docs: court says you have to show what guidance you gave to others in supervising the document production
in deciding what is
ORAL EXAMINATION FOR DISCOVERY
What is Examination for Discovery?
Examination for discovery is a recorded examination (Rule 7-2(26)) of one side to litigation before trial and under oath
(R 7-2(4)), but not before a judge – but before a sworn reported (R 7-2(12)) - with the object of obtaining admissions
(most important) or discovering facts that can be read into the record at trial or used in cross-examinations.
What is the Policy Rationale for Examination for Discovery?
Rule 7-2 gives an opposing party opportunity to examine all the witnesses. It is to prove the case of the examining party
or to disprove the case of the party examines (Dann; paras 12-13). Granting applicants right to examine multiple
corporate representatives of their choice would not achieve this objective (Dann, para 14)
What are the General Requirements Pertaining to Examination for Discovery? – Rule 7-2


Attendance is compulsory (Rule 7-2(1)); the examining party must serve notice 7 days prior to comepel the
examinee’s attendance (Rule 7-2(13)) and examinees must answer all questions (Rule 7-2(18)). The Scope of
Examination under sub (18) is very broad, as rigid limits could destroy right to proper examination (Nwachukwu)
Unless otherwise ordered, examinations must not exceed 7 hours (Rule 7-2(2)) (unless sub (3) applies), and take
place within 30km to the registry nearest where examinee resides (Rule 7-2(11))
Extensions to 7 hour limitation under sub (2) – Rule 7-2(3)
 In considering whether to extend the examination period, the court may consider per Rule 7-2(3)
o (a) the conduct of the examinee including (i) unresponsiveness, (ii) failure to provide complete answers
(iii) examinees answers that are evasive, irrelevant, unresponsive or unduly lengthy
 Must be intentionally evasive etc to be granted extension on conduct (Mainstream)
o (b) Examinees refusal or denial to admit anything that should be admitted
o (c) conduct of the examining party
o (d) reasonable practicability to complete examinations within 7 hours
 Problem of unrepresented clients, where outstanding issues remain after first examination,
court may be inclined to use discretion under this provision to extend (Mainstream)
o (e) the number of parties and examinations for discovery and proximity of their interests
Examination of Party That is Not an Individual – Rule 7-2(5)
 Unless the court order otherwise, if the party to be examined is not an individual per Rule 7-2(5)
o (a) examining party may only examine on representative party
o (b) party being examined may nominate its representative
o (c)examining party may examine (i) the nominated representative or (b) any other person they deem
appropriate
 Separate Ps not entitled to examine separate representatives, even if they have different lawyers . BUT can
examine same rep twice, once for each P, and does not have to be concurrent. (Dann)
 POLICY: D might suffer hardship (para 17)/Rule exists to ensure the proper utilization of pre-trial process.
Right to examine multiple representatives of their choice effectively circumvents this limit (para
19)/Proportionality: time, money, etc PER Rule 1-3 (Dann)
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Minors, Mentally Incompetent, Bankrupt - Rules 7-2(8), (9), (10)
 If the examinee is a minor, their guardian may be examined, unless otherwise ordered (Rule 7-2(8))
 If examinee is mentally incompetent, their guardian may be examined, unless leave from court granted (Rule 72(9))
 If examinee is trustee in bankruptcy, the bankrupt person may be examined (Rule 7-2(10))
Examinees Must Self-Inform – Rule 7-2(22), (23), (24)
 To comply with sub (19) compelling examinees to answer questions, an examinee must inform herself, and
examination may be adjourned for that purpose (Rule 7-2(22))
 If required under sub (22), examining party may request response in writing (Rule 7-2(23)) and if so, the letter is
deemed to be under oath in examination for discovery (Rule 7-2(24))
o POLICY: Safeguard, of which the failure to comply results in opposing counsel ability to apply to court in
choosing representative (Dann)
Objections – Rule 7-2(25)
 Where the examinee objects to a question, reporter must record Q and objection, and the court may (a) decide
the validity of the objection and (b) order the person to submit to further examination (Rule 7-2(25))
TYPES OF OBJECTIONS (Nwachukwu)
o Relevance: counsel should have a broad discretion to frame appropriate questions for examination
o Confusion: “if a question is difficult to answer, the witness can say so and can be cross-examined about
the difficulty. It is for the witness, not cousel, to deal with that. Difficulty in answering does not exclude
the whole area. It excludes specific questions. No area of fact is closed on the ground that to enter it
would ‘open the floodgates’” (Cominco Ltd (1979) in Nwachukwu in para 36).
o Repitition: “there will be situations which repeating the same allowable question over and over on
cross-examination may amount to intimidation...court may be slow to interfere”... where ... “there are
goods grounds for the cross-examiner’s belief the witness may be falsifying his evidence” (Rec Holdings
Co (1995) in Nwachukwu para 37)
o Inadequate Foundation: there is no requirement that a foundation be laid for a question.
o Compound Questions: multiple questions at once. Should be used sparingly. Although, in some
instances it ok because Its pretty clear what counsel is asking.
o Privilege: Questions of this nature are generally objectionable. P cannot be asked what counsel told him
about claim or how case will be framed at trail. May not be asked how much he will say he has lost and
cannot be asked to disclose how the facts have assembled, weighed or analyzed by counsel.
Dann v Dhaliwal (2012 BCSC) – Under R 7-2(5) separate Ps in same claim not able to examine separate reps, but
may examine same rep twice, does not have to be concurrent. D organization entitled to choose their rep.
Facts: P and her infant son crash with tractor trailer. P and her son sue separately against multiple Ds, including the
province, city of abbotsford, trailer driver Dhaliwal, EAM – responsible for the maintenance of roadways – and ISL –
responsible for the design of traffic infrastructure. Present application wrt Province and EAM for the right to examine
separate representatives of the respective corporations. EAM submits that Ps can only choose one rep and discoveries
must occur on the same day. Province submits that the rep they’ve chosen has fully informed himself of the knowledge
of the second rep the P request for an additional oral discovery.
Held: Separate Ps not entitled to examine separate representatives, even if they have different lawyers . BUT can
examine same rep twice, once for each P, and does not have to be concurrent. Corporation is entitled to choose their
representative; safeguard in place for ability to apply for leave to examine 2nd rep where first not adequately informed.
Mainstream Canada v Staniford (2011 BCSC) – Scope of 7-2(3): examinee’s answers must be INTENTIONALLY evasive
to qualify as a breach under R 7-2(3); application of “reasonably practicable” under sub (d)
Facts: P seeks order per Rule 7-2(3) to extend period for examination for discovery past 7 hours. P is seeking additional
14 hours and costs. P, a salmon farm, is suing self-represented D for alleged defamatory remarks regarding dangers of
salmon farming. Kills lobsters, is as lethal as the tobacco industry. P says that D was evasive, unresponsive, failed to give
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complete answers. D submits that P is responsible for length of discussion, as it is Ps responsibility to time wisely
Held: Failed on “conduct” under 7-2(3)(a) because not intentionally evasive, and was largely due to fact that D was selfrepresented. However, was successful for an additional 8 hours under 7-2(3)(d) – “not reasonably practicable” to
complete 14 topics (only got through 2 first time around)
Nwachuukwu v Ferreira (2011 BCSC) – scope of objections restricts unnecessary, deliberate frustration of process;
certification does not estoppe D from further discovery; scope of examination (sub 18) very broad; types of objections
Facts: Application for an additional 7 hour discovery without consulting counsel as to the form and content of responses
and an order to limit P counsel objections to where necessary. P badly injured in MVA; D admits liability but claims preexisting condition. During first oral discovery, the counsel made 57 objections and refused to set out the basis for
objection for the record, repeatedly told client not to answer certain questions; adjourned. 2nd discovery, Counsel made
48 objections and numerous other interruptions. Adjourned again, proceeded with different counsel, who made 12
objections. P responded in writing to 45 questions to which objection had been made at examination, per Rules 7-2(23)
and (24). D counsel filed certification of completion due to looming trial date.
Held: Further discovery granted, without limit to what questions, and P may not discuss the form or content of questions
with counsel. Certification of completion does not estoppe the D from performing oral discovery. Objections were
obstruction to the process and wasted the time-limited discovery session. Unnecessary and intentioned to stall and
waste time.
Strategic Examinations Tactics
Key Examination Strategies and Strategic Use of Documents on Oral Discovery
 STRATEGIC USE OF DOCUMENTS
o Arrange documents in roughly the order you want to examine on, or arrange them chronologically. Just
make sure you have a system and you know exactly where every document is that you need
o Open with something bold that they are not expecting to throw them off, hopefully they won’t recover
from – scare them into telling the truth
 ORAGANIZATION
o Read all documents of both sides and select the most helpful to obtaining admissions and those
necessary to understand material facts
 FLEXIBILITY
o Be prepared to change directions and DON’T change the line of questioning if its leading somewhere
close to an admission
 AVOID PREDICTABILITY
o Examine by themes and subjects rather than chronologically
 TIMING
o Slow down if you need to (the record doesn’t show pauses) , but be mindful of the 7 hour time limit
 CLEARLY AND SUCCINCTLY INTRODUCE EVIDENCE
o Introduce each document carefully, establishing the background of the document’s existence. For
example: “I am showing you a document from (date) which appears to be a memo from X regarding Y
with your signature at the bottom; do you recognize this document?”
ONCE YOU EXTRACT THE INFORMATION YOU WERE LOOKING FOR:
 get away from that document ASAP and change the subject, so the opposing party doesn’t get smart to your
tactics and tries to re-answer the question.
 Now, the witness is shown not only to have read the document, but to have lied under oath about the fact.
 Use this to undercut the witness’ credibility, or at least establish that the witness has a poor memory
Retracting Statements
You MUST retract statements IN DISCOVERY. It is possible, but very difficult to retract an admission made on discovery
once at trial; creates credibility issue for your client. The opposing counsel is not obligated to allow the retraction, but at
least there will be a recording of the retraction if stated in examination for discovery.
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
Craft your words carefully when retracting admissions, for example: “my client said something inadvertently
that was inaccurate. We are prepared to reconvene if you wish to ask the question again if you wish and then
set the record straight as to why the statement is inaccurate.”
Interacting with Witnesses
 Always be courteous and friendly prior to examination; more flies with honey
 Avoid hostile siege mentality, rather, encourage volubility
 “Training” opposing witnesses to tell the truth – use your strongest linking documents FIRST, rebutting any lies
they tell, and then when you think they are lying, physically pick up a document, and ask them a Q.
Conducting Oneself as Counsel in Oral Examination
 Be Professional:
o An absence of an authority figure is not an invitation to act unprofessionally by interruption,
interference
o Don’t lose your temper with witnesses or counsel regardless of how badly they behave
o Do not intentionally delay and frustrate the examinations with frivolous objections and lengthy breaks
 Courteously Correct Impropriety of Opposing Counsel
o Do not allow opposing counsel to “go off the record”; politely but firmly cut them off and proceed
 Refrain from Assisting the Witness
o Its improper to hint at answers, and tell your client BEFORE examination to reply “I don’t recall” for
difficult questions they need more time to think about.
 Object Only when it is Appropriate
o Object sparingly, and only on grounds of relevance or another important, relevant reason
o It is improper to object to questions that appear to have no relevance, Q is incoherent, is misleading ,
ambiguous, or prefaced with an untrue statement
EXAMINATION BY DISCOVERY OF INTERROGATORIES
What is an Interrogatory?
Defined: Interrogatories, also known as requests for further information, are a formal set of written questions produced
by one litigant and required to be answered for the purpose of clarifying matters of fact to help determine in advance
what facts will be presented at a trial in the case. “Interrogatories are a pre-trial took designed to narrow and focus the
issues in the lawsuit, reduce the length and expense of trial and eliminate the element of surprise at trial.” (Loo, para 16)
Flexible tool: Counsel can use interrogatories at any point in pre-trial proceedings. However, the court will generally
disallow their use more than once. Judges don’t like them b/c they are a lot of work.
The Old Rules v New Rules –Key Difference
Consent or Leave: Under the old Rule 29, one could issue interrogatories whenever you felt like it without having to go
to court. The new rules require leave, if the opposing counsel does not consent to the interrogatory per Rule 7-3(1) and
so this is a huge disincentive due to the potential money and court time involved.
Guiding Principles of the Use of Interrogatories
Rule 7-3 attempts to balance the Objects and Proportionality pursuant to Rule 1-3 against Access to Justice.
Interrogatories must promote the underlying principles, and must not be burdensome (Loo)
When and How Do Interrogatories Apply? – Rule 7-3
GENERALLY:
 Party may serve interrogatories with consent of opposing party or if the court grants leave (Rules 7-3(1))
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
If party is business, opposing party can apply to court to serve interrogatories on the officer or any member of
the party (Rule 7-3(2)) and if more than one persons answering (officer, EE, partner agent, director)
interrogatories must state which of the interrogatories is to answer (Rule 7-3(5))
 Court, in granting leave, may impose conditions including per Rule 7-3(3):
o (a) number and length of interrogatories
o (b) matters interrogatories can cove
o (c)timing of any response to interrogatories
o (d) the notification that is required to be given to parties wrt interrogatories
 21 days to answer interrogatories by affidavit (Rule 7-3(4))
 If answer is insufficient, court may require party to make a further answer by affidavit or oral examination (Rule
7-3(7))
 If answer is found to be inaccurate or incomplete, the party must promptly serve an accurate or complete
answer (Rule 7-3(11))
OBJECTIONS TO INTERROGATORIES (WHEN COURT SHOULD STRIKE THEM):
 If a person served objects on privilege or relevance, may make objection in affidavit answer (7-3(6))
OR

objects b/cwill not further the objects of the Rules, can apply, per 7-3(8), (a) to have the court strike the
interrogatory and (b) the court must take into account any offer by the party to make admissions, produce
documents or give oral discovery
o Additional factors court must considerations in determining whether to strike interrogatory
 Purpose of interrogatories is to obtain NECESSARY facts, and questions must not be ambiguous,
redundant, remote, time consuming or complex so as to adhere to the objects of the rules (Loo)
 Questions must be limited in specificity and number, and not “overly burdensome and
disproportionate to the uses sought to be clarified” (Credential Securities, para 101)
 From Kenney, in Hou in Loo at para 16:
 must be relevant to matter in issues in the action
 Are not to be in the nature of cross-examination
 Should not include a demand for discovery of documents
 Should not supplicate particulars
 Should not be used obtain the names of witnesses
 Are narrower in scope than examinations for discovery
 The purpose of interrogatories is to enable the party delivering them to obtain
admission of fact in order to establish his case and to provide a foundation upon which
cross-examination can proceed when examinations for discovery are held
 Are only one means of discovery. The court may permit the party interrogated to defer
its response until other discovery processes have been completed, including
examinations for discovery
Loo v Alderwoods (BCSC 2010) – purpose of interrogatories is to obtain NECESSARY facts, and questions must not be
ambiguous, redundant, remote, time consuming or complex so as to adhere to the objects of the rules.
Facts: Plaintiff seeks an order compelling the D to answer lengthy interrogatories. D applies to strike out those
interrogatories. Interrogatory contained more than 1400 questions to two corporate defendants and four individual
employees. P, who was self-represented, alleges he was terminated from his job after taking sick leave. D says he was
terminated because P was permanently disabled and therefore the contract was frustrated.
Held: The Ps application to compel interrogatories is unreasonable and is dismissed.
Credential Securities Inc v QTrade (BCSC 2012) – questions must be reasonably limited in specificity and number
Facts: Application by D to deliver interrogatories to P. The interrogatories were originally served to the former Chief
Financial Officer. P rejected them on the basis that it was not current EE. P, credential, and D, QTrade, are both wealth
management/brokerage agencies, in direct competition. 3 EEs left Credential for Qtrade, discovered that they still had
their usernames and passwords for Credential and accessed the system. Credential sued QTrade, but the EEs claim that
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they did not access or share any information regarding when they logged into the system. QTrade defends that
Credential has brought this action to defame Credential, that the suit is malicious and in bad faith.
Held: Leave to grant interrogatories denied as it would be disproportionate and burdensome; questions too broad and
too numerous.
PRE-TRIAL EXAMINATION OF A WITNESS
What is a Pre-trial Examination of a Witness? – Rule 7-5
A pre-trial examination allows you to examine a witness (excluding expert witnesses per Rule 7-3(2) )before trial under
oath (Rule 7-2(1)(a).
 Must apply to the court 7-5(1) by affidavit – eg. You need to have a written statement from the witness before
you can interview them (7-5(3)) - and comply with application requirements under Rule 8-1, per Rule 7-5(4).
 If the order is granted, the party may issue a subpoena using Form 25 and compel the examinee to bring
document or exhibits (Rule 7-5(6), and must give notice to the examinee at least 7 days prior to the date of
examination (Rule 7-5(7).
 Pre-trial examination must not exceed 3 hours (Rule 7-5(9))
What are the Potential Problems with Pre-Trial Examinations?
Could Hurt your Case:
 Examinations become part of the record and therefore, the opposing party will get the transcript
 Due to the notice requirement, opposing counsel will be aware of the date and may attend the examination
When Should You Use Pre-Trial Examinations?
Very rare circumstances, where there is a low probability that the witness won’t say anything damaging; however, be
very cautious, as the potential detriments far outweigh the benefits.
ADMISSIONS
General Points on Admissions



You can admit liability to a personal injury and just challenged the damages
OR, you can admit that you caused SOME of the damage but that there is contributory factors that mitigate your
liability
BUT BE CAREFUL, because admissions are very difficult to retract (Rule 7-7(5))
Purpose and Themes of Admissions
The admission rule is an attempt to shorten the proceedings pre-trial and make them more efficient in adherence with
the objects of the rules per Rule 1-3.
How do Admissions Work? – Rule 7-7





A party to a civil claim can serve notice requesting a party made an admission wrt a fact or document (7-7(1))
Party who receives notice under (1) can make admission or respond in writing within 14 days with a statement
that (a) specifically denies the admission OR (b) sets out the reasons why the party cannot make the admission
OR (c) states that the refusal to admit the truth is on the basis of privilege or irrelevancy or is otherwise
improper (Rule 7-7(2))
If the refusal to admit under (2) is unreasonable, court may award costs of proving the truth to opposing party
(Rule 7-7(4))
WITHDRAWAL: A party is not entitled to withdraw an admission except by consent of the court (Rule 7-7(5))
Admissions may be entered as evidence in court (Rule 7-7(6))
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DEPOSITIONS
What is a Deposition and How is it Different from Discovery?
A deposition is the inclusion of examination evidence at trial made under oath that was obtained during or before trial
(Rule 7-8 (1)), for example, referring to statements made in examination for discovery used to rebut statements made in
court. A deposition may be court ordered or by the consent of the parties (7-8(1))
The Mechanics of a Deposition








Conducted before a court reporter or any person the court directs (7-8(2))
Court may impose time limit (7-8(3))
If deposition ordered, examinee may be compelled by subpoena and may require examinee to bring any
document or evidence required (7-8(5))
Rule of Depositions applies to persons outside jurisdiction so far as is practicable (Rule 7-8 (8))
Examining party must give notice to examinee (Rule 7-8(13)
Examinee may be subject to examination and cross-examination (Rule 7-8(14))
May be videotaped or transcribed (Rule 7-8(16))
A deposition is allowed to occur at a case planning conference under Rule 5-3 (Gill)
What are the Grounds for a Court Ordering a Deposition? – Rule 7-8 (3)



THE ONUS is on the non-consenting party (Seder)
Court must weight the 7-8(3) factors against each other; it is not necessary to meet all criteria and in some
circumstances, meeting even one factor will suffice (Seder)
In deciding whether to grant a deposition under (1), the court must consider (Rule 7-8(3)):
o (a) the convenience of the examinee
 “something more is required than general inconvenience” (Seder, para 17)
 Allowing a deposition for Convenience alone is the “mischief to avoid” (Seder paras 5-6)
o (b) inability to testify at trial due to death, infirmity, sickness, absence
 Requires facts supporting that the witness not attending “goes beyond the usual problems
attached to litigation’” (Aberim in Seder, para 21)
o (c)possibility that person is outside the jurisdiction during trial
 Mere reluctance to travel is not not sufficient; a province away is not a sufficient distance to
allow a deposition on this ground alone (seder)
 Being in a different country may be a sufficient distance to allow deposition, particularly where
it is very far away like India (Gill)
Videoconferencing
o (d) possibility of person testifying by video conferencing or other electronic means
 Where videoconferencing is an option, it will be preferred to video tape (Seder)
 Even where possible, court must weigh the negative effects of videoconferencing (Gill):
o Counsel not present with the witness at video conferencing
o Court cannot control the setting in which the witness is situated
o Effective examination may be difficult if prolonged or detailed examination is
required
o There is often a time delay
o May be impossible for counsel or court to interrupt the witness (for example for
purpose of objections)
o Quality of video and sound is often of poor quality and the transmission is
occasionally interrupted.
o (e) expense of bringing the person trial
30

Must go beyond the normal cost of litigation: “prohibitively costly” with a specific mind to
proportionality (Seder para 29)
Seder v ICBC (BCSC 2011) problems which interfere with the effectiveness and usefulness of the evidence at trial
should only be ordered in exceptional circumstances where the evidence would be lost if not recorded prior to trial
Facts: Application by 3P – ICBC – for leave pursuant to Rule 7-8(3) to examine the D witness by videotape and to use it
at trial in place of physical attendance. The P in this case suffered damages and loss of earning from accident. Was a
server at a restaurant in Calgary. Case is taking place in Kelowna. Relevant witness is the Ps manager from work. Does
not want to travel, is reluctant, but would if she had to. P does not consent to request. ICBC would have to front the
cost of subpoena. Flight between cities is one hour; evidence would last no more than one hour. The primary reason is
that is would be less expensive than travel
Held: No; none of the criteria were satisfied.
Gill v A & P Fruit Growers (BCSC 2011)- Video Depositions are preferable to video conferencing where conferencing
may lead to an adjournment and opposing counsel does not intend to cross-examine witnesses on the content of the
depositions
Facts: Application seeking order for taking depositions; that two dr witnesses be examined under oath before trial and
an order permitting the record of the examination be tendered as evidence at trial. P suffered multiple compound
fractures while on Ds property, requiring 3 surgeries. In a separate liability trial, D found 70% liable, with P cotrib neg
the remaining 30%. Both witnesses will be out of the country (one in Idaho, one in India). D argues that the witnesses
should be present at trial so they can be cross-examined, or at the very least by video conference, otherwise the case is
prejudiced.
Held: The depositions application can be heard at a case planning conference, and the application for depositions is
granted.
LIMITATIONS LAW
POLICY RATIONALE: The Big Picture of Limitations:
Why do we take away people’s rights based on the passage of time?
 Hypothetically, could we have a system whereby even if long period of time between harmful event accrued and
action commenced, court could look at facts and see if delay was reasonable in all the circumstances?
o Unfairness to respondent
 Certainty and predictability for parties
 How do you structure your affairs if you do not know if a claim will be brought against you?
o Would clog up the justice system
 For the sake of expediency
 The Benefits of Limitations Periods:
o Allow defendants to enjoy repose
o End potential claims and provide complete closure
 Financially: people need to budget for the future.
 Psychologically: even people who harm others are entitled to move on at some point
o Encourages Ps to bring claims when evidence in fresh
 Parties lose evidence: Often Ps don’t have a lot of documents and Ds usually do (generally). After
10, 20 years, in the course of business, may destroy those documents. If litigation could come
about years after the fact, they have lost their evidence and it is he said, she said
 Witnesses die: in cases where the case is a long drawn out case over many decades.
The Discretion of the Courts to Mitigate Injustice by Extending Limitation Periods:
Courts do not have a lot of discretion wrt Limitation Periods, with some exceptions:
31



Sex assault: it would be unjust to limit the time period related to childhood sex assault as the victim is not able
to psychologically connect the assault and the harm until commending therapy M(K) v M(H) 1992 SCC
Discoverability Principle: where it would be unjust to preclude possibility for action due to injury not
discoverable. Peixeiro v Haberman (1997 SCC)
injured parties may refrain from initiating action immediately where it would be detrimental to their healing
Novak v Bond (1999 SCC)
New Limitations Law Compared to Old Law – BC Limitations Act

Some provisions are merely cosmetically different, while others are substantively different:
Old Act
New Act (as of June 1, 2013)
Basic
- Varied action to action, 2, 6 or 10 - Two years for all civil claims (with a few exceptions)
Limitation
years
- Starts to run once ptf discovers claim
Period
- Time starts when all elements of - Section 6
cause of action present
- Some claims could be postponed
based on discoverability
Exceptions
- Claims by debtor or secured party in - ss. 2,3: exempted claims and proceedings where no
possession of collateral to redeem or
limitation period applies.
realize on that collateral
o Includes exemptions from old act
o Adds: declarations and judicial review
proceedings; prosecution of offences under
the Offence Act; claims based on existing
aboriginal and treaty rights
- Where limitation governed by a different statute s.
3(2)
- Court proceeding to enforce or sue on a judgment
for payment of money or return of personal
property is 10 years (s. 7)
Ultimate
30 year ultimate limitation period based 15 years for all civil claims, commencement based on “act
Limitation
on accrual model.
or omission” model rather than “accrual”
Period
- Acknowledgement of debt would
- Can be postponed and reset or suspended:
only restart basic, not effect
adult disability, acknowledgements (part
ultimate
payment of debt or written confirmation of
liability) and wilful concealment.
- (for enforcement of judgement it is the
award, not the underlying claim)
Contracting
The act is silent on whether parties can No change, still uncertain and common-law governs.
Out
contract out or change statutory
- Hayley: you can probably extend, but unlikely
limitation period… the common-law is
you could shorten unless they are
also uncertain
sophisticated.
Demand
6 year limitation period to collect on a 2 year limitation period commences on the first day that
obligations
demand obliation, commences when the there is a failure to perform the obligation after a
loan is first made and delivered
demand has been made s. 14
Realize
or No specification for when limitation Commences on the first day that the right to enforce the
redeem
on period commences
security arises. s. 15
security
Contribution
Judge has discretion re whether to allow Basic limitation period commences on the later of s.16:
and Indemnity contribution and indemnity claims
- The day the claimant for contribution or indemnity
is served with the original pleading; or
- The day the claimant knew or reasonably ought to
32
have known that a claim for contribution or
indemnity could be made
Stopping the
Commencement postponed: minors, and persons under
Clock
disability
Running suspended: if person becomes under a disability
Clock reset: liability is acknowledged.
Related Claims Same as new, except applies to claims for No limitation period to bring a claim “related to or
indemnification and contribution as well.
connected with” a claim that has already been brought
within the basic and ultimate limitation period s.22
- i.e. counterclaim, third party proceeding, set off, or
addition or substitution of new party as plaintiff or
defendant.
- NOT indemnification and contribution
Amending
Court has discretion to allow after expiry of limitation
Pleadings
period s. 22(5)
Non-Judicial
Cause of action extinguished when Cause of action is not extinguished, but when limitation
Remedies
limitation period expires s. 9
period on claim has expired then cannot bring claim in
court AND not entitled to exercise any non-judicial
remedies that would other be entitled to. s. 27
- “non-judicial remedy” = a remedy that a
person is entitled, by law or by contract, to
exercise without court proceedings.
Transition Period Chart (Where is the Old Law Still Relevant?

The old act can continue to exist for many years due to the transitional provisions
33
RES JUDICATA
What is RJ & How Does Res Judicata Work?
RJ is “A matter that has been adjudicated”. The Doctrine of RJ prevents relitigation of matters already decided.
Summarized by G Spencer Brown in The Doctrine of RJ:
“[W]here a final decision has been pronounced...[that]... any party...is estopped in any subsequent litigation from
disputing or questioning such decision on the merits, whether it be used as foundation of an action, or relied
upon as a bar to any claim, indictment or complain, or to any affirmative defence, case or allegation”


Res Judicata causes Estoppel, that can be raised against a party or a privy in earlier litigation.
The court has Inherent Jurisdiction to decide not to estoppe for RJ where it is in the interest of justice to do so
(Danyluk in MacDougall; CUPE)
Requirements for RJ to Apply
For RJ to apply, the decision must be:
1) A final decision
2) By a body of competent jurisdiction (can be a court or a tribunal)
34
Exceptions to Estoppel by Res Judicata
No estoppel if:
1) First judgement obtained by fraud
2) New evidence is discovered that could not have been reasonably known earlier
Res Judicata Applies to Ultra-Juridical Decisions
A party that allowed a default judgement against it in jurisdiction A cannot succeed in a later action to enforce the
judgement in jurisdiction B by asserting that the merits were not considered by the foreign court.
Types of Res Judicata
Per The Doctrine of Res Judicata in Canada in Chan #2:
1. Action Estoppel: BARS AN ENTIRE CLAIM. arises where the court has adjudicated a claim between two or more
parties and a second action is brought between the same parties that is in some way related to the first
 Bringing a wholly identical cause of action against the same Defendant but in another jurisdiction is
a clear case of where the court should issue estoppel (Britannia)
 Cannot re-litigate a the same action simply because there is anew legal theory (Britannia)
 Otherwise, this is like “litigation by installment”
2. Issue Estoppel: BARS AN ISSUE. arises where the second action does not involve the same cause of action or
claim. Occurs in circumstances where the court treats issues from the first case as settled for the purposes of
the second
o Can sue the same party twice for the same circumstances, so long as the issue adjudicated in the first
trial is not the same as in the second (Chan #3; Petrelli)
 Parties must have mutuality/privy in order for opposing party to estopp a 2 nd proceeding (CUPE
in Petrelli, Petrelli)
 Neighbours: NOT privy (Petrelli)
 Crown and Police: NOT privy (McIlkenney)
 Government Employer and Crown: NOT privy (CUPE)
 Ministry of Labour and Employee: ARE privy because they share “community of
interest” (Abella in Rasanen)
 Successors in title: ARE privy (MacDougall)
3. Action Estoppel Under the Rule in Henderson: Bars cause of action that could have been brought in the 1st
proceedings
4. Issue Estoppel Under the Rule in Henderson: Bars issue that could have been decided in the 1st proceeding
a. APPLICATION TO BOTH Action and Issue under Henderson: where a party improperly pleads, and does
not amend, and where the presiding justice in the 1st proceedings explicitly states that the issue may be
tried in a subsequent proceeding, the rule in Henderson does not apply to estop the 2nd proceeding
(Chan #3)
5. Abuse of Process - Bars 2nd proceeding if it would undermine the integrity of the judicial decision-making
process
a. party found liable in 1st claim denies liability in 2nd claim by separate party is abuse of process (Bomac)
6. Collateral Attack – Bars 2nd proceedings where a party bound by an order seeks to avoid compliance by
challenging the order indirectly
a. should have been argued in CUPE
Policy Rationale

“With consideration to the policy grounds, a consideration of issue estoppel or cause of action estoppel focuses
upon the interest of the litigants. A consideration of abuse of process by relitigation or collateral attack
focuses upon the justice system” (Chan #2 at para 13).
35




Money: Re-litigating costs money.
Justice and Fairness:
Society benefits from the finality of a judgement
o “interest of the community in the termination of disputes” (Chan #2, para 16)
Closure for litigants
o “finality and conclusiveness of judicial decisions” ensure the “interests of the individual from [being]
vexed twice” (Chan #2, para 16)
Britannia Airways v RBC (2005 ONSC) – Action estoppel where a decision to the opposite effect would have barred the
D in the present case
Facts: Same parties, same cause of action; Britannia attempted to re-litigate the same factual allegations that had failed
against Air Routing in Texas, not against RBC in Ontario. Case turns on whether RBC is privy in interest to the Texas case.
Held: Estopped by Action EstoppelKey question: would the party have been bound by the decision if it had gone the
other way? Yes: if Britannia had won in Texas, RBC could not challenge that decision in Ontario.
McIlkenney v Chief Constables of the West Midlands (ENGLAND) – issue estoppel where issue has been previously
decided, to prevent person from contesting it in subsequent proceeding even if parties are different in the 2 actions
Case #1: R v McIlkenny: Crim prosecution against IRA members who were found guilty of bombing a hotel. During the
trial, McIlkenny accused claimed that their confessions had been beaten out of them – court rejected this defence.
Case #2 McIlkenney v Police: McIlkenney sued police for the damages that occurred from the alleged beatings. Police
raised issue estoppel or abuse of process. The argument was that the issue had already been adjudicated. However,
Lord Denning held that the American position should be adopted that a person who has had an issue decided against
him in action A is estopped from contesting it in later action B – even if the other part is different in the two actions.
Upheld in favour of police in HofL, for abuse of process (and not issue estoppel).
The HL decision has been followed in Canada.
Unfortunate ending: a commission later found that the confessions had in fact been beaten out of them*
Bomac Construction (1986) – abuse of process for party to reject liability in a subsequent action where they are found
liable for same circumstances in a prior action – would cause relitigation of a decided issue
D plane owner and pilot to claim lack of neg in 2nd action brought by B when same action against them brought by A had
previously succeeded. Accordingly, the D was struck out to prevent “the potential injustive perpetuated both on the
aprteis and the judicial system by havin the same basic issues dealt with in 2 and perhaps 3 separate trials”; Abuse of
Process.
Reliable Mortgages v Chan #1 (2011BCSC); #2 (2013 BCSC); #3 (2014 BCCA) – can sue the same party twice on
different issues arising from the same circumstance
Chan #1:
Facts: Chan’s nephew used forged power of attorney docs to take out a mortgage on Chan’s house. Had the money
deposited into Chan’s account and part in Chan’s sister’s (mother of fraudster) account. Persuaded Chan that it was his
money and had it transferred to him. A mortgage obtained by fraud cannot give an indefeasible title under the LTA but
Reliance argues that it is entitled to an order nisi of foreclosure because Chan actively, if unwittingly, assisted in the
fraud by transferring the money out of her account without making reasonable inquiry.
Held: Reliable cannot execute mortgage security, as it does not hold a valid mortgage, because a fraudulently obtained
and court will not rule on conversion as it was not plead, and pleadings not amended to include conversion
Chan #2
Facts: Reliable seeks recourse for a claim of “conversion”, that Chan and Lee converted the fraudulently obtained
mortgage for their own use. Reliable argues that this is a separate claim, citing the chambers judge in the previous
action in which he said that since the prior case was pled as a foreclosure action, “There can be further proceedings on a
conversion matter”. Chan and her sister apply for RJ estoppel by Abuse of Process or Collateral Attack
Held: Reliable can bring the conversion action; Application to strike dismissed.
 Issue estoppel doesn’t apply –issue in 1st claim was enforceability of the mortgage, not related to conversion
 Action estoppel does not apply – no decision was rendered on conversion at previous trial
 Not an abuse of process – integrity of the judicial decision-making process in the 1st proceeding is not
undermined because nothing in current action relates to the enforceability of a mortgage
36

The rule in Henderson – Reliance raised conversion at last trial and advised Ds they intended to though they did
not amend pleadings, the judge specifically said that conversion could be dealt with in a separate trail
Chan #3
Facts: Chan and Lee Appeal above
Held: Appeal dismissed; claim is not barred by the doctrine of res judicata for reasons in Chan #2
Petrelli v Lindell Beach Holiday Resort (2011 BCCA) – party may raise a new defence for a subsequent action that has
been tried where the opposing party is not privy to the first
Facts: Ps purchased holiday home in Ds trailer park, similar to the one their friends, the Bahrys’ bought. Bahrys win a
case alleging municipal bylaws prohibit the use of land as a trailer park - only zoned as a campground – and win,
allowing them to lawfully rescind their K ( a storm had destroyed their trailer). Ps seek to strike the Ds statement of
defence that the unlawful use of land is protected by the LGA s 911 on lawful non-confirming land use on the grounds
that it is an abuse of process. Since the Ds lost Bahry action, it is not open to the D to defend their similar claim.
Chambers judge agreed, D appeals.
Held: For the D; D’s attempt to raise defence of legal non-conforming land use was not an abuse of process. The Bahry
pleadings were not presented as evidence at trial, and applying the Palmer Test for adducing fresh evidence on appeal,
the P cannot present the Pahry pleading at appeal b/c it was available to them at trial. Also, lawful non-conforming land
use is highly case specific. Further, issue estoppel does not apply because they are different parties, no privy, and
defence of legal non-conforming land use was not before the court in Bahry.
Toronto v CUPE (in Petrelli) – court has inherent jurisdiction to prevent an abuse of process
Facts: At separate trial City EE had been convicted of child abuse. Rec instructor for city sexually assaulted child. Gave
evidence at trial and was x examined and crt found him to be not credible. In the current case, grievance for
termination. COM was not called to testify and the accd gave evidence that he had not sexually assaulted the boy.
Arbitrator said that the evidence of the trial was admissible but not conclusive and held that the presumption raised by
conviction had been rebutted bc he accepted the evidence of the grievor.
Held: Abuse of process: Court also recognized and engaged the court’s inherent discretion (a lot of discretion at that) to
prevent an abuse of process There are situations in which over-riding concerns of fairness to parties require such
challenges to be tolerated, a robust doctrine of abuse of process by relitigation means that such challenges may be
avoided where there are no such fairness concerns
Rasanen v Rosemount Instument - example of issue estoppel, privy between Ministry of Labour and EE
(Abella) held: dismissal of EEs ESA claim for 8 wks termination pay raised an issue estoppel in his subsequent civil action
for wrongful dismissal. She found that the ministry of labour and the EE were privies sharing a “community of interest”
MacDougall v Lake Country (2012 BCCA) – example of Action estoppel; successors are privy
Facts: P seeks a declaration that they hold title to a strip of land between lake Okanogan and surveyed lots created by
subdivision occurring in 1914. Not the first time strip of land has been to court. Predecessor of P sought declaration in
1963, and court found it did not. Trial judge in current action found that the doctrine of res judicata applied and
dismissed the action. P argues the doctrine does not apply because it would work and injustice and the court ought to
use its inherent judicial discretion to refuse to apply it (per the rule in Danyluk v Ainsworth (2001 SCC).
Held: Res Judicata applies. The previous case ruled that the strip of land was crown land. The parties to this
proceedings are privies of the parties in prior proceedings (successors in title). Also, the District Lake Country is by virtue
of the Community Charter, the successor to the crown, and this is privy also. No basis was found for injustice to occur on
this finding.
ACCESS TO JUSTICE
Professor McHale Guest Lecture
Access to Justice has come to the forefront of public attention with critical issues in law. This is a result of a large body
of empirical research and reports that have had a radical impact, discrediting many prominent assumptions about access
to justice.
37


“There is a serious access to justice problem in Canada…major change is needed The current system, which is
inaccessible to so many and unable to respond adequately to the problem, is unsustainable” (Committee on
Access to Justice in Civil and Family Matters)
“We live in ‘a world thick in law but thin in legal resources’ …we first need to convey the abysmal state of access
to justice in Canada today. We cannot shy away from the dramatic level of change required” (Canadian Bar
Association)
The Problem with Access to Justice




Access to justice is absolutely critical to a functional and peaceful society (CBA Taskforce). However, many
Canadians cannot exercise their rights effectively because using the civil justice system takes too long, is too
expensive or is too difficult to understand.
The system is increasingly complex and expensive and is increasingly delayed, in part by the complexity and in
part by a surge of self-represented persons not properly prepared and not knowledgeable enough to navigate
the law and legal procedure effectively.
These problems are exacerbated by decreasing affordability, access and the public’s confidence in the system.
Assembly line, a system mired in process, with a one size fits all mentality:
“We have moved from being a society governed by the rule of law to being a society governed by
the law of rules….we have come to believe that process is justice.
•Yet to members of the public who find themselves mired for years in the civil justice system’s
process, process may be the obstacle to justice.” Justice Abella
Process Preoccupation – Abella J (in Walker)
“We have moved from being a society governed by the rule of law to being a society governed by the law of rules”
 Seduced by the notion that process equates to justice
 It is dubious that “justice” requires several years and hundreds of rules
 “People want their day in court, not their years”
 “its always been done this way” isn’t going to cut it as an excuse
 Our monopoly as lawyers places us in a fiduciary relationship with the public; we are the
gatekeepers to justice: “Process is the map, lawyers are the drivers, law is the highway, and
justice is the destination”
Consequences







Class Disparity: the wealthy have access to the system, but the poorer don’t. Now, the scope of inaccessibility
has extended to the middle class.
Overall Use has Declined but Length of Trials Increases: up until about 1996, Vancouver law courts heard about
800 trials a year, and average time spent on a trial was 13 hrs. In 2009, number was reduced by fifty percent,
average time per trial doubled
Increased litigation involving government, decrease in civilian use: another trend barred inside these numbers
is who is litigating, and who is in court most often? Government is. Usually, they are in court as defendants.
Increased Self-representation: self representing litigants is a growing trend as well: 80% in family courts; 65% in
civil courts; in Court of Appeal and SCC. This occurs on the heels of significant decline in funding for Legal Aid
Decrease in Trials: a minority of justiciable disputes ever go to trial (2% of the 15% that go to trial)
Clustering: phenomenon where unresolved legal problems cause more problems
`Triggering”: social and health problems arising from unresolved legal problems
What is the Solution? How Do We Fix It?
Redefining “access to justice”: To adhere to the Objects of the Rules, to provide a just, speedy and inexpensive
process, we need systemic overhaul. It is absolutely imperative to justice and democracy that justice is not an
exclusive club, reserved for the wealthy; justice must be accessible to all
38






o
remap the justice system: boundaries of justice system; older perspective was access to justices and lawyers,
now there is a much broader perspective that takes into account issues regarding prevention, utilizing non legal
services to solve legal problems (collaborative family law)
client centered approaches:
o services based on the needs of the users
o design from the users point of view
o legal literacy, PLEI, citizen self help
o design with, not for—public voice in the reform process
transformation, not tinkering
o fundamental change
o premium on innovation, transformation and creativity
o not paving the cow path
Front-end services
o services need to be put at the front end of the justice system, to help people early on, to provide
coordination and support for the broad range of services now being provided in the public and private
sectors, as well as for enhanced access to consensual dispute resolution processes
o Increased funding from the government for free legal advice through the CBA, law schools (like the
LIC, Business Clinic, Criminal Law Clinic
Diversion – moving actions into other processed to increase efficiency
o BC Notice to Mediate – PI, Civil, Family
o Ont. fully mandatory Civil
o BC Mandatory Small Claims Mediation
o BC Child Protection Mediation
o Collaborative law
o Arbitration
o Judicial Dispute Resolution
o Online dispute resolution
Making the courts work better
o simplified, expedited process; proportionality
o matching: try to fit dispute with what is on the forms
o Increased access to and funding for Duty Counsel (Legal Aid)
o Less restrictive requirements for access to Legal Aid
o summary adjudication
o create specialized courts and tribunals
o unbundled services – compartmentalized specific services
o Increased Emphasis on Pro bono representations
o E court
Liberalization and Deregulation of Law
o Lawyers’ monopoly in law is seen as unduly restrictive, anti-competitive, an impediment to access,
Justice Abella in Walker calls lawyers the “gatekeepers”. Should we be?
o Allow regulated non-lawyers to deliver some legal services
o Allow non-lawyers to deliver services with little or no regulatory oversight,
 BC Law Society pilot project: “designated paralegals” provide legal advice, appearance, under
lawyer supervision
How Does this Affect Us as Lawyers and Law Students? What Can we do individually?

Operationally, in day to day for lawyers, less litigation, and more resolution focused out-of-court work: more
arbitration, more mediation and collaborative practice, increased work with other disciplines.
o Foster an Alternative Business Structure for your law practice:
 Allow external private investment in law firms,
 Create an atmosphere and reality of consumer-oriented and market-driven legal access
39

 EXs: Google’s “Rocket Lawyer”, or “LegalZoom” online legal document service
Different Legal Education: :aw schools—teach more collaborative skills, scope beyond legal issues, looking at
the broader context of the claim. We must Learn how to advocate and mediate, hone your negotiation and
settlement skills:
o “…the traditional approach to litigation has not emphasized problem-solving ... It is in this regard that
the Task Force suggests that a change in orientation is required. This reorientation must focus on early
problem-solving and dispute resolution, with the prospect of trial seen not as a matter of immediate
focus but as an option of last resort.” CBA Systems of Civil Justice Task Force Report
ADR: OFFERS TO SETTLE, SETTLEMENT CONFERENCES,
MEDIATION/ARBITRATION, CASE PLANNING CONFERENCES
Benefits of Mediation & Arbitration ADR Generally/Policy Rationale
ADR is cheaper and less time-consuming, in adherence to the Objects of the Rules, thereby increasing access to justice.
It also keeps issues out of court, ensuring your client’s privacy which will often be better for your client’s reputation and
well-being, and promotes ownership of dispute resolution, as opposed to using trial as a first resort to attain a just
result.
MEDIATION
Why Choose Medation? Why Not?
 Mediation is Cheaper than a trial, and takes much less time
 However, no guaranteed outcome, so may turn out more expensive:
o If it doesn’t work, you the have to pay for an additional process: mediation AND court
 Other downfall:
o Other party may use mediation as a means of discovery, or as a means to stall the court proceedings, to
have more time to prepare
 No actual intent to settle, abusing mediation to win in court
o Getting a decent mediator takes months
Advantages often outweigh any downfalls, however
Who mediates? And How Should you Prepare for Mediation?
Mediators: Generally have legal training – mostly former senior lawyer, judge
Preparation for mediation:
 Organization: Cases can be won on preparation, where you know your case inside and out will give you an
advantage over a disorganized party.
o Mediation is no different than trial in this respect. Don’t let the less formalized process as any less
serious or critical
o ALWAYS have a written brief
 Good communication with mediator critical – legally trained persons, remember. Will afford you the perception
that your legal analysis is more likely to be correct
What is the Court’s Involvement in Mediation?
 Court not involved in mediation with some exceptions:
1. Court can judge interlocutory (pre-trial) matters prior to the mediation
2. Court can order mediation at a case planning conference (Rule 5-3)
What might be the problem with Court Ordered Mediation?
 For mediation to work both parties must be willing to mediate. If a judge is ordering mediation, it indicates the
parties are not willing, so in such circumstances what are the chances of successful mediation? Pretty slim
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o
Argument in favour of judge ordered mediation, is that sometimes parties are willfully blind to the
weaknesses and strength of mediation, or the unwillingness to hear the other side’s view. Furthermore,
sometimes, counsel are not informing their client’s properly and don’t care if they win or lose as long as
they get paid, so mediation may not be presented to them as a viable benefit to resolving their case.
Mechanics/Process of Mediation – Notice of Mediation BC Regulation 4/2001
 Does not apply to family law, motor vehicle litigation, construction, judicial review proceedings, civil case
involving sexual or physical harm or any action under the Education Mediation Regulation - (NMBCR s 2)
o Policy Rationale:
 Sexual/physical harm: intimate victims should not be forced to sit in a room with their assailant
 Judicial Review: can’t mediate something like a declaration from the government
 Time Limitations: No later than 100 days before trial or earlier than 60 days after notice of civil claim – to ensure
timliness, to ensure fair notice (NMBCR s 24)
o However, informal mediation can be done right up to the eve of trial, congruent with the object of the
act for speediness and to prevent unnecessary burden on an already over-whelmed system
 Judge ordered mediator if the parties cannot agree. List of 6 mediators, each party can veto 2, number
remaining names in order of preference and judge will pick from remaining list and appoint. (NMBCR s 8)
o NMBCR S 8(d) – factors taken into account:
 order of preference
 neutrality of mediator (no conflict of interests)
 qualifications
 availability
 nature of dispute
 any other consideration
 Compulsory Attendance: Party must attend at pre-mediation hearing or mediation itself, (NMBCRs 15) with
exception of allowance for attendance for a representative on a party’s behalf (NMBCR 16)
o Sanctions for failing to attend: Court can dismiss the case or strike the defence if party does not attend
(NMBCR s 34)
 Costs generally done on agreement of parties, with presumption that parties will share equally and is binding on
the parties, and if mediation does not lead to settlement, can be obtained at trial (see NMBCR ss 29, 30, 31)
 You must have a settlement agreement. Invariably will contain issues that you have not settled. Get it done
fast while you still have collegiality between parties at settlement
The Problem with Multiple Parties and Settlement (BC Ferries)
With multiple parties, some may wish to settle, while others do not. This is problematic, as Ps generally do not have as
much money as Ds and need money to fuel their litigation. Even where there is not a strong case against a D1, they may
wish to settle just to make the issue go away, which is a benefit to the D1, but also the P who can now pursue their
action against D2 more freely having settled with D1. PROBLEM: it used to be that even if D1 has settled with a P, D2
can drag them back into the litigation by third partying them to the claim.
Such was the case in BC Ferries, from which the following principles are drawn:
1) Whatever the court would have apportioned the settled party cannot be attained from a non-settling party.
2) Indemnify settling party. If any other party tries to pull settled party back in, no concern b/c indemnification
from P
3) P agrees to consent dismissal order discontinue action. NOT a discontinuance. Different...if you dismiss, then
that party cannot be brought back in whereas you CAN be brought back in with a discontinuance.
4) P ought to agree to amend the pleadings to assert that it is not claiming against the settling party.
Policy Rationale: Consistent with modern policies, b/c court want settlements, they want parties to agree. It is much
easier now in complex litigation with even partial settlements.
Offer to Settle - RULE 9-1

Offers must be in writing, served to all parties and contain the standard form language provided (Rule 9-1(1))
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Offers must not be disclosed to the court or jury (Rule 9-1(2))
An offer to settle is not an admission (Rule 9-1(3))
Court has discretion to consider the offer when making cost award (9-1(4), (5)) and a litigant who accepts an
offer in small claims is not entitled to costs at trial subject to court’s discretion (Rule 9-1(7)).
Settlement Conference – Rule 9-2
Can on application explore settlement without witnesses, cannot sue transcript, and judge presiding cannot be trial
judge (Rule 9-2)
Problem: judges don’t always make great mediators.
 Judges do not often have experience mediating and negotiating between parties; their expertise is adjudicating
and weighing facts and circumstances to make judgement. Its an entirely different skill set.
Case Planning Conferences – Rule 5-2, 5-3



Presided over by a judge (Rule 5-2(1))
Judge may make order wrt offers to settle (Rule 5-3(1)(m))
Judge may order mediation, a settlement conference or any other ADR they see fit (Rule 5-3(1)(o))
CONVERTING PETITIONS TO TRIAL
What is a petition?

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Form of proceeding in litigation that is faster and cheaper than an action and therefore, if you bring one, you are
the “petitioner”.
A petition must contain evidence with affidavits; no oral discovery, interrogatories
Inherent tension in petitions: one side wants to get the issue over quickly, whereas the other party would often
benefit from further doc disclosure, a more thorough analysis of issues and facts in a trial
o slowing down the process by converting to trial may assist one party in strategic tactical reasons, and
comfort of a full discovery.
o You do not get document or oral discovery, interrogatories, as a matter of right under petitions, but you
do in the rules governing an action.
The court can grant a petitioner anything they could grant as if it were a trial (Rule 16-1)
When are Petitions Used?


Authorization of application by statute OTHER THAN by Supreme Court Civil Rules or Supreme Court Family
Rules, must be by petition Rule 1-2(4)
HAVE to use petition – Rule 2-1(2)(b):
o (2)To start a proceeding in the following circumstances, a person must file a petition or, if Rule 17-1
applies, a requisition:
 (a) person starting the proceeding is the only person who is interested in the relief claimed, or
there is no person against whom relief is sought;
 (b) the proceeding is brought in respect of an application that is authorized by an enactment to
be made to the court;
 (c) sole Q wrt construction of enactment, will, deed, oral or written K or other document;
 (d) for wrt execution of a trust, performance of trustee, or determination of creditors to trust
 (e) relates to the maintenance, guardianship or property of infants/disabled
 (f) the relief sought is for payment of funds into or out of court;
 (g) the relief sought relates to land in a variety of circumstances
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

Application for foreclosure on a mortgaged property Rule 21-7(1)
wrt appeals to SC on gov’t decisions (not court of appeal). Applies unless statute says otherwise. Rule 18-3
 Note the Case Law in Timberwolf on this, however - An appeal to the supreme court from an administrative
process is only de novo were the appellant raising procedural issues and tendering evidence not before
the ministry or commissioner
Conversion of a Petition to Trial or Action – Rule 16-1 & The Test for Conversion


A Petition can be converted to trial (Rule 16-1(18); Rule 22-1(7)(d))
The TEST FOR CONVERSION (Timberwolf, Southpaw)
o Onus on applicant, standard is balance of probabilities (Juman)
o Bona Fide Issues: a petition should only be converted where there are bona fide issues of fact or
law that cannot be resolved through affidavit evidence (Boffo)
 FUNDAMENTAL disagreement on issue of facts (Timberwolf)
 Information, facts, methodology is in the SOLE control of one party (TImberwolf)
 Factors to Consider from Terasen:
 the undesirability of multiple proceedings
 desirability of avoiding unnecessary costs and delay
o not determinative in the absence of other concerns (Southpaw)
 whether the particular issues involved require an assessment of the credibility of
witnesses
o lack of candour - yes (Timberwolf)
o But not determinative in absence of other compelling reasons (Southpaw)
 the need for the court to have a full grasp of all the evidence
o where the subject matter is highly technical and the court requires expert
testimony (Timberwolf)
o Voluminous evidence not determinative so long as court is able to
understand the evidence (Southpaw)
 whether it is in the interest of justice that there be pleadings and discovery in the
usual way to resolve the dispute.
o Such as where there is a history of bad behaviour (non-disclosure, lack of
candour, procedural unfairness) by a party (Timberwolf)
o To uphold a party’s reputation, privacy of a party (Timberwolf)
o The public interest in a trial of the claim must outweigh value of petition
(efficient litigation, privacy) (Juman)
 ADDED: also says to consider timliness - whether determination can be made at
that stage(Southpaw)
Southpaw Credit Opportunity v Asian Coast Development Canada (2012 BCSC) - example of where court does not
grant a conversion application
Facts: Southpaw brought oppression claim against Harbinger for watering stock contrary to the CBCA and seeks remedy
requiring Harbinger to purchase Southpaw’s shares for their original price. Adjourned by consent upon Southpaw’s
application to seek an order to conversion and add or bring the separate tort claim in addition to oppression claim.
Held: Conversion application denied.
 Cost: cost and delay as parties would essentially be staring over
 Delay: Long trial (20 days)
 Credibility: is an issue that will require exploration as there is not agreement on material facts. It is not possible
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to say whether lesser measures could resolve this.
 Full Grasp: voluminous evidence but, not problem for the court to obtain a sufficient grasp of what’s going on
TImberwolf Log Trading v BC (2013 BCSC) – example where court does grant conversion (Rule 22-1(7)(d))
Facts: Timberwolf applies to the court for conversion to trial for misfeasance stemming from execution of search
warrants, procedural unfairness, involving an appeal of a decision by the revenue minister regarding an adjustment to
stumpage fees ($3.4M) following an audit and allegations of fraudulent reporting of the applicant. In the internal appeal,
the ministry had refused to disclose requested docs, stating that those docs would be available at the appeal stage to
the court. At appeal to court, applicant granted application for disclosure and ministry was found to have failed to
disclose fundamental info to applicant. Application for conversion under Rule 22-1(7)(d).
Held: Conversion granted: Fundamental disagreement on the material facts (stumpage)
 Disagreed facts require a credible assessment not achievable through examination of docs
o UNLIKE TAX CASES: Evidentiary basis for quantifying stumpage was within the primary or sole
knowledge of petitioner.
o The information as well as method of information collection is contested and since the expert witnesses
ministry is relying on are their own EEs or contractors, credibility of witnesses must be scrutinized in a
trial
 Cost : of marshalling evidence
 Credibility: History of non-disclosure (eg. gov’t BAD BEHAVIOUR) of ministry indicates that require more than
summary proceedings to ensure adequate disclosure
 Interests of justice of the petitioner, due to the quasi-criminal nature of the allegations against them, will be
harmful to their business, important to preserve reputation, so procedural improprieties of the government
(lack of candour, procedural unfairness) are absolutely relevant to the granting of the conversion in this case
 Full Grasp:Court requires full grasp of issue through trial to hear oral testimony to have explained and
interpreted the industries’ unique short hand, code system, as the court lacks this expertise
An appeal to the supreme court from an administrative process is only de novo were the appellant raising procedural
issues and tendering evidence not before the ministry or commissioner.
CLASS ACTIONS
What is a Class Action?
A class action is claim brought by one person on behalf of a group of similarly-situated people. CAs make allow for
claims to be brought that would normally be economically unviable to pursue otherwise, thereby increasing access to
justice. P’s counsel can recover a contingency fee, thus making the claim viable. The SCC has acknowledged Class
Actions in their usefulness in assisting access to justice, as reflected in the low evidentiary burden required to certify
CAs. (See below “Evidence at Certification”)
Common Misconceptions About Class Actions
 Client’s do not need to sign up (as in Erin Brockovich)
o However, signing up does come into play: “Carriage motion” to determine who is the most experiences
and ready litigant/counsel. Court chooses who has “conduct” in the litigation. It is more compelling
that you can say that you have had 500 people contacted you who wants to be privy to CA.
 Class actions are the only form of mass litigation
o Representative action: came from courts of equity, and reflected in rules of court in CL around the
world. Though it was dead, but it came back to life.
 CAs are NOT A form of legalized blackmail
o but has a grain of truth, that stakes are so high (millions or billions) that there has traditionally been a
desire to settle despite the merits of the case. It is not blackmail, per se, but it has an element of
financial coercion where there is a lot of money at stake. Until recently, there just weren’t CA trials in
Canada....
 CAs are NOT a “Windfall for lawyers, crumbs for the class”
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o
In Canada, there are judicial controls on the apportionment of settlement between lawyers and parties
to a CA
Types of Cases Frequently Litigated as Class Actions
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Products Liability (defective pacemaker in Hoy)
Environ Law: (agent orange in Ring)
Consumer Protection Law: (Payday loans in Money Mart)
Gov’t Action/Inaction (mad cow disease in Sauer)
Insurance/Benefit Entitlement (same sex survivors in Hilsop)
Labour and Employment Law (over-time pay in Corless)
K and Neg Misrep (Ipod Battery in Waddell)
Post-secondary Ed (dental hygienist accreditation in Martoni)
Securities (prospectus misrepresentation in Danier Leather)
The Best Kind of Situations for a Class Action:
 Banking and Mortgages - make good CAs b/c they have standard language in Ks, very rarely negotiate the
language of K and most large institutions have standard practices so fewer or no variations between CA litigants
 Pension/Benefit cases: Make good CAs because they are something that affect many people in a uniform way.
Legal Framework of Class Action Suits
Legislation: Class Proceedings Act
 Class action legislation was first introduced in Quebec in 1978.
 Followed by
 Ontario (1992), BC (1995), Saskatchewan (2001), Nfld. (2001), Manitoba (2002), Federal Court (2002), Alberta
(2003), New Brunswick (2006), and Nova Scotia (2007).
Under the Common Law/Rules of Court
 No class action legislation exists in PEI, Yukon, NWT or Nunavut
 Representative proceedings permitted by Rules of Court in all jurisdictions. The language is generally similar to
BC’s, in Rule 20-3(1):
o “If numerous persons have the same interest in a proceeding … the proceeding may be started and,
unless the court otherwise orders, continued by or against one or more of them as representing all or as
representing one or more of them.”
Class Actions SCC 2001 Trilogy Cases:
In 2001, the SCC considered class for the first time, and enthusiastically endorsed procedures and encourages
innovation, reviving representative action.
 Determinations:
o Absent legislation (so PEI, Yukon, NWT, Nunavut), the courts have inherent jurisdiction to adjudicate the
rules of practice and procedure to fill the gaps through creating a body of common law (Dutton)
Stages of a Class Action
STEP 1: Filing the Action
 Intended Representative Plaintiff files action on behalf of the class.
 No court approval is required to file.
STEP 2: Certification
 Rep Plaintiff applies for an order to certify (in Quebec – “authorize”) the action as a class proceedings
 If granted, the courts gives permission for the action to proceed as a class action, defines the class, and
articulates the common issues
STEP 3: Common Issues Trial
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 Court hears evidence and gives judgement on the common issues (see notes on Vivendi below)
STEP 4: Individual Issues Trial
 If the class succeeds on common issues, court approves the process for resolution of any individual issues
Certification: the Battle and the War/Requirements for Certification
 In many CAs, certification application is the battle and the war (though more CAs are going to trial now as SCC
lowered the bar and made it easier to be certified)
 Certification greatly increases the Ds exposure and creates pressure to settle. Inevitably, CAs bring the stakes
into the millions, so its a big step.
 B/c CAs involve ordinary ppl, media seem to much more interested in them than corporate litigation. Huge
media component that places pressure on D
REQUIREMENTS FOR CERTIFICATION
1. Pleadings disclose cause of action:
 Ps must demonstrate pleadings meet “Plain and obvious test” (same standard as for Rule 9-5 Application to
Strike; making an assessment for a radical defect)
 Novelty of claim does not preclude certification
2.Identifiable class or two or more persons:
 Class definition must be objective, cannot be merits based (eg “persons who were discriminated against” not ok)
 Requires evidence that “two or more persons” have a complaint
 Must be rational link between the Ps claim the proposed class.
o Overbroad or under-inclusive classes may not be certified
o Class description, therefore, would be, for ex. “ employees of D from 1999 to 2000 working in [specific
job] exposed to [carcinogenic material]”
o Ipod ex: can’t just be everyone who owns an ipod...did they pay for it and have an interest in financial
investment?
3. Common issues:
 An issue will be “common” only where its resolution is necessary to the resolution of each class members’ claim
 Common issues need not predominate over individual issues, sufficient if resolution will advance the litigation
 Success for one class member must not result in failure of another
 Common issues do not necessarily require a common answer
 Cannot have conflict of interest (some members want one outcome, others want another); potential solution:
 “Sub-classing”, but if it is a true conflict, sub-classing won’t save the conflict.
4. Class proceeding is preferable procedure for fair and efficient resolution of common issues:
 Do common issues predominate over questions affecting only individual members?
 DO a significant number of class members have a valid interest in individually prosecuting a separate action?
 Would the class proceedings involve claims that are or have been subject of any other proceedings?
 Are other means of resolving the claims are less practical or less efficient?
 Would the administration of the class proceedings create greater difficulties than of relief were sought by other
means?
5. There is a representative P who
 Would fairly and adequately represent the interests of the class
 Has produced a workable plan for advancing the proceedings and notifying class members and
 Does not have a conflict of interest
 As lack of plan might be used as excuse by court to dismiss where the court doesn’t like the case.
Evidence at Certification
 The cause of action is determined on the facts pleaded
 For other factors, the P must demonstrate “some basis in fact”
 It must be more than a mere assertion, though it is not a hearing on the merits
 Expert evidence may be important and must be delivered directly by the expert and not through affidavit
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

There is a LOW evidentiary for certification burden per:
o Class Actions 2013 SCC Trilogy Cases:
 Pro-Sys Consultants v Microsoft
 Sun-Rype v Archer
 Infineon v Option
 This lowered standard of proof makes it easier for plaintiff’s to have claims certified,
o RATIONALE for low evidentiary standard of “some basis in fact”:
 Court is “ill-equipped to resolve conflicts in the evidence or to engage in the finely calibrated
assessments of evidentiary weight” (Irving Paper ONSC 2009),
 Unlike our southern neighbours, courts should not engage in weighing the merits of the
evidence at certification: “Canadian court have resisted the US approach of engaging in a robust
analysis of the merits at the certification stage. Consequently the outcome of a certification
application will not be predictive of the success of the action at the trial of the common issue”
(Pro-Sys SCC 2013)
HOWEVER, the certification process still must serve as a meaningful screening device; in Vivendi (SCC 2014),
the court acknowledge a relaxation of the standard, but asserted that an assessment of some integrity still must
occur; a flexible lowered standard does not mean an absent standard, (compared to grand jury trials = “a grant
jury would indict a ham sandwich”…can’t be like that with certifying CAs)
o Vivendi: “flexible approach” to commonality requirement
 This may lead to an increased role of “preferable procedure” analysis in BC
Vivendi Canada Inc v Dell’Aniello (2014 SCC) – “Flexible approach” to commonality
Facts: Dispute over a unilateral amendment to a health insurance plan for Vivendi’s retirees and their surviving spouses,
CA suit against insurance company. Rep P applies for authorization/certification for class action.
Held: “Authorized” (its Quebec case – means same as certified) to proceed as class action, applying a “flexible approach”
to the commonality requirement.
 There is no preferable procedure requirement in Quebec, and the authorization test is less stringent in Quebec
that certification in other provinces [Note: likely leading to an increased role of “preferable procedure analysis in
BC]
Post-certification Processes
Opt-in/Opt-out of Class Action
 If cert is granted, absentee class members must be given notice of cert and options
 Class members may choose to opt-out of CA and pursue their own
 In some provs (inc BC), extra-prov class members may opt-into CA
 BC residents: don’t have to opt-in, its automatic, but extra-prov must opt-in or they’re cut
o Real life application, this is very important for determining who is in and out of class
o BCs rule for ultra-juridical opt-in often do not take the time to opt-in, but this rule is not the same
across the country and many don’t require opt-in. Alberta for ex, has amended law to provide that
this is not necessary. Sask as well.
 STRATEGICALLY, for a national CA, start your suit in Sask and Alberta.
Trial of a Class Action Claim
 Until recently, CAs seldom went to trial
 Trial will only resole common issues
 Individual issues may be resolved by:
o Hearing before the same or other judge
o Inquiry by person appointed by crt
o Any other manner consented to by the parties
 The court must choose the least expensive, most expedient route to determine individual issues
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Strategies for certification
 Cause for action? Analyze pleadings carefully for potential challenges
 Issues particular to individuals?
o In Nadolny v peel (regional) a retirement health claim was not certified due to the significant amount of
individual issues arising from individual Ks.
Strategies for Defending Class Actions
1.Pre-certification Strategies:
 Challenges to jurisdiction
o Lack of territorial jurisdiction: “forum non conveniens”
o Other: Arbitration agreement, exclusive jurisdiction of statutory decision maker
 Limitation Periods
 Challenging the Pleadings
o Failure to disclose cause of action
o Motion for particulars
 Apply for summary determinations of issue(s)
2. Strategies at Certification:
 Cause of Action
o Analyze the pleading carefully and creatively to identify potential challenges,
 Issues Particular to Individuals
o Eg. Individual employment Ks may cause individual issues with finding commonality, as in Nadolny
o Eg. Changes to individual employment Ks wrt benefits/pensions is individual issue, as in Somerville
 Identify potential conflict of interest among class members
o Eg. Representative P discontent with investment structure, contrary to contentment of other members
in the class may lead to rejection of certification, as in Broughton
o Eg. Conflicts between how a finding would affect current and retired EEs may lead to rejection of
certification, as in MacDougall
 Class Definition:
o Scrutinize carefully for over or under breadth
 Preferable Procedure:
o Consider the degree to which individualized enquiries may be required to resolve the proposed
commons issues
3. Strategies at Trial on the Merits
 REMEMBER Class action legislation does not change the substantive law, and a good defence on the merits
remains a good defence to the aggregated claim
Settlement of a Class Action
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Settlement of a Class Action requires court approval
Occassionally, settlement may be opposed, as in Waterson in which a union opposed the settlement for their
members (which the court rejected)
CA Legislation can be a useful tool for benefits provides to make a settlement final and binding on all members.
o General Motors v Abrams (ONSC 2011) – example of use of certification to bind parties
 GM on verge of insolvency, negotiated release of claims for health care benefits. GM
commenced CA against retirees seeking a declaration that it was entitled to alter or terminate
the plan. Court approved an application to certify the class of retirees and application to
approve the settlement.
o Sunnyside v Lorenz (ONSC 2009) – example where court will not allow certification to bind parties
48

Nearly all members of class agree to distribute surplus in pension fund; Sunnybrook applies to
certify the proceeding but the court rejects certification application citing deficiencies
Costs and Fees
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
lawyers need to be entrepreneurial in bringing case to make sure these cases get brought forth in the interest of
justice. Huge policy rationale to deter bad behaviour from institutions, to increase access to justice, consumer
protection.
Controversy of high lawyer fees has existed in the past, but the overwhelming benefit of CAs and also tempered
by more recent judicial restriction on the allocation of awards in CA suites largely outweigh any detriment
Fee Arrangements:
 Some possible arrangement:
o Contingency fee agreement with rep P/ Counsel gets %
o Billable hours X crt determined multipliers: counsel gets its bill with multiplier to account for risk
o D pay Ps counsel as part of settlement
Rules around fees:
 Key is – an agreement wrt fees and disbursements b/t solicitor and a rep P is not enforceable unless approved
by the crt
 If court doesn’t approve fees, court has broad discretion in determining fees
 Several provinces including BC provide that class counsel agreements on fees must be in writing and include:
o Terms under which fees/disbursements are paid
o Estimate of expected fee even if fee contingent on success
o Form of fee – lump sum, contingency
Costs Controversy & the NO COST REMGIME in BC
Vital issues faces by drafter of CPAs is whether the rule that costs follow the event should be altered in some way for
class actions. Argument on either side:
 No costs for CA: greater access to justice
 Usual costs regime: loser pays rule
 Counsel doesn’t want risky class actions if they will personally lose large sums of money
The NO COST regime in BC (and similar rules in Nfld, Sask, Man):
 Neither SCC or Appeal court can award costs to either party to an application for certification, any party to a
class proceeding or to any appeal thereof (Class Proceeding Act, s 37(1))
o EXCEPTIONS:
 Vexatious, frivolous, abuseive conduct
 Improper or unnecessary application for the purpose of delaying or increasing costs or any other
bad behaviour OR
 Where is would be unjust to deprive a party of costs, in exceptional circumstances.
 Defendants may recover costs if claim dismissed before certification
Consumer Association v Coca Cola (BCSC 2006) – Costs awarded pre-cert
 Court rejects certification for challenge to bottle deposit scheme and awards $400k to Ds.
 Plaintiff’s may attempt to use “escape clause” of arguing the Public Interest Litigation (no costs in these):
Kerr v Danier (SCC 2007) – Public Interest Claim
 SCC awards costs to Defendant party; Representative P argues that there should be no costs
because it is a Public Interest Claim. Court rejects P’s argument, because:
 P has financial interest in outcome, has a high net worth, very wealthy
o “protracted litigation has become the sport of kings in the sense that only kings
or equivalent can afford it. Those who inflict it on others in the hope of
significant personal gain and fail can generally expect adverse cost
consequences” Binnie J
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Ethical Considerations in Civil Actions
Generally
 Your client’s are best served by ethical conduct. It is not only your best interest for potential of punitive
measures imposed by the law society.
 While the legal system is undoubtedly adversarial, it is not about winning at all costs, such as the cost to your
reputation or personal integrity.
 You will lose cases, and everyone does, and it should not prompt lawyers to cheat and lie. Honest wins are in
the best interest of justice, and in your own best interest
Money, Money, Money …or is it really about Justice?
 The most obvious concern is: the relationship between class counsel and the class, particularly absentee class
members.
 In the context of CAs there is a lot of money involved and there is a high potential for abuse. Lawyers used to
routinely line their pockets with CA money.
 Dominant perception that this is still the case and that CAs are all about making lawyers rich and less about
obtaining justice for wronged clients. Money is a huge incentive, but the key point in CAs is that courts have
awarded class counsel generously for their efforts, because if they weren’t, there wouldn’t be CAs: no one
would take them on (huge amounts of efforts and time). Therefore, CAs are a vital and fundamental tool to
increase access to justice.
Epstein Court may bar settlement between Defendant and Class Counsel .
There is a concern that to avoid the scrutiny of the court, a defendant may just pay off a lawyer or firm to drop
the case prior to certification, cutting out the compensation to persons in the class
o In Epstein, Cumming J refused to allow the pre-certification settlement unless lawyer agreed to take
zero $ from the settlement, following an attempt to make a deal b/t P and counsel
Class Members, Absentee Class Members & The Role of the Court
 The court acts on behalf of and in the interests of the absentee class members.
 In Canada, we have not had the same type of questionable settlements as in the US (such as where class
counsel received $3.5M vs the class receiving coupons upon purchase of next product.) One of the reasons, in
the early days of CAs in the 1990s in Canada, judges have taken a firm hand on managing the cases from the get
go; in theory, the relational concern (above ) exists, but in practice has been curtailed for the most part by Cnd
courts.
Advertising the Class Action to Solicit Members
 CA suits are rare. More often though, you must seek out a clients for CAs after identifying the issue yourself.
 it is perfectly proper to advertise, though may still be considered unprofessional as it was historically.
 Commissioning members may be problematic - if you launch a suit and another lawyer sees you plan and takes
it, causes dispute. A “Carriage Motion” may be brought to receive conduct to go forth as the representative
counsel in a CA. Regardless, advertising is not a great strategy , as the case may be taken from you.
Can you pay/prefer the representative client more than other clients in the class?
 cannot prefer the representative P over the rest of the class without the consent or knowledge of the court,
whose role it is again to protect the absentee class member.
 The rep client does not get a bigger slice of the pie due to their time investment, however, some courts have
accepted paying witnesses etc for time that reflects what they get paid in their job, essentially just
compensation for job wage loss.
o This balances against the ethical consideration of paying people for giving evidence,
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Indemnification of representative plaintiffs
 contentious , but perfectly ethical.
 No CAs would ever go to trial otherwise: Who in their right mind would go ahead knowing they could potentially
be on the hook for hundreds of thousands of dollars in costs?
 It has, therefore, become a tradition to indemnify the P. Can you sell shares in a CA?
Can you sell shares in a litigation?
Yes. Companies can invest in cases that they deem to have a high potential for success and receive portion of award as
repayment for investment. (highest court has not yet ruled on this though)
 Access to justice: cases that would normally not be able to brought from lack of money are able to be,
however,
 Litigation is Extremely expensive (documents, experts, etc etc) –and counsel has money or access to money
but Ps may not
 Fear that this is like champerty and maintenance - Hobsbawn v Atco Gas – but its not and this concept is now
dead.
Negotiating counsel fees
 Counsel fee negotiation – in some cases, different counsel would be appointed to negotiation counsel fees; this
caused problems however, bc it added yet another layer of lawyers who needed to get paid.
 Subject to management powers of the court to determine pay, you may negotiate your own slice of the
settlement pie.
 The best settlement would be on where you agree upon the formula determining the amount; for ex $300M
settlement – most Ds will not pay the counsel separately, but out of the settlement. Generally, court must
approve it, to see how many opt in/opt out and see what the class counsel brought in. If you don’t bring in that
much, court might decide just to give you 5% (even though standard is 30%)
Conditional settlement barring future CAs
 As part of negotiation, some Ds may use future bars on CAs as a bargaining chip in settlement.
 May be offside (Hayley doesn’t know but it was ok at one point)
EXPERTS - RETAINING AND PRESENTING EXPERTS AT TRIAL
The Perfect Expert
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Very difficult to find someone who meets all of the desired characteristics
Has experience as an expert, has never been undercut or criticized by a court before
Has acted for both Ps and Ds and seems neither biased or unduly dogmatic
Willing to put in the time and effort to fully prepare themselves
Able to refine and build on issues for which her opinions are sought
A good writer, capable of preparing solid reports that a lay person can understand
Able to articulate and explain the subject matter coherently to counsel and the court
Is engaging, and charismatic
Able to hold up in examination and cross-examination
Does not have to be an academic, but must have “special knowledge through study or experience in respect of
the matters on which he or she undertakes to testify” (R v Mohan SCC 1994)
o Practical experience may be more valuable to persuade the court than academic or professional
accomplishments (Miller v White Truck BCSC 1982)
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When is an Expert Required?
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Where the subject matter is unintelligible to a layperson
Where expert evidence is necessary to enable to court to draw proper inferences from the relevant facts
The Law Governing Expert Evidence and the Role of Experts – Rule 11 & CL
AT COMMON LAW: Application to Qualify an Expert; “The Necessity Test” & Statutory Standards
NECESSITY TEST: Four criteria for the admission of expert evidence set out in R v Mohan in MacEachern:
1. Relevance
2. Necessity in assisting the trier of fact - “The Necessity Test”
a. The standard is above what is “helpful”, but not stringent: it is that the “opinion be necessary in the
sense that it provide information which is likely to be outside the experience and knowledge of a judge or
jury”
b. Where the subject matter goes beyond common understanding
i. While most adults have experience driving a car, they won’t have the ability practically or legally
to drive a commercial trailer
3. Absence of any exclusionary rule
4. Properly qualified expert
STATUTORY STANDARDS:
 Expert evidence can be considered by the court to determine the necessary standard of care where it is
appropriate, such as in novel cases or where the statute is general and does not define a manner of
performance, as mere compliance is unlikely to exhaust the standard of care. In such cases the court will decide
how much weight to attach to the expert testimony, and the testimony is not determinative (MacEachern)
RULE 11-2(1), (2): Duty to the Court to Assist and Not to Advocate
 Expert Witnesses have a Duty to assist the court, and they are not an advocate for the party (Rule 11-2(1))
 If a party appoints an expert witness, she must Certify that she (a) is aware of duty to assist/non-advocacy, (b)
has made a confirmation report with respect to this duty and (c) give testimony in conformity with the duty
(Rule 11-2(2))
o Allowing partial or non-assistive partial testimonial evidence would prejudice the case and outweighs
the probative value such expert testimony might have (Warkentin)
o Behaviours, or factors that the court may consider in deciding that an expert witness is taking an
advocacy role and/or not assisting the court in breach of their duty under Rules 11-2(1), (2) per the
court in Warkentin:
 Obvious un-objective advocacy stance
 Argumentative tone
 Misleading testimony: emphasizing evidence favourable to the party, trivializing or omitting
those that ae not
 Missing deadlines to file expert witness reports
 Non-responsive in rebuttal reports
 Improper or missing citations in written reports
RULE 11-3: Appointment of Joint Experts
 For parties to appoint joint expert, they must settle the following prior to appointment (Rule 11-3(1)):
o (a) identity of the expert
o (b) issue in action the expert opinion is intended to resolve
o (c) facts or assumptions of fact agreed to by the parties
o (d) each party must identify any assumptions of fact not agreed to by parties under sub (c)
o (e) the question to be considered by the expert
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o (f) when the report must be prepared and given to the respective parties
o (g) the responsibility for fees payable to the expert
Rule 11-3 ONLY permits the court to direct WHO the expert will be once the parties agree; eg court cannot
compel an expert witness upon a party (Bendetti)
Appointment cannot occur prior to a Case Planning Conference (Bendetti)
POLICY RATIONALE: If the court were allowed to appoint an expert witness prior to a CPC and without consent
of both parties, the opposing party would be placed a great strategic disadvantage to fair, impartial expert
consultation (Bendetti)
RULE 11-5: The Power of the Court to Appoint its Own Expert
 The court may appoint an expert at any stage to help the court resolve an issue in an action (Rule 11-5(1))
o This is an extraordinary remedy and should only be used where all other avenues of investigation been
exhausted (Hiebert)
 It must not be used prematurely as “[t]oo early or too wide a use [of the rule] could direct the
process towards an inquisitorial one” (Hiebert, para 20)
 It must not be used as a “warrant to search” (Hiebert para 23)
o While the court has the discretion to appoint an expert at any time in the proceedings, it must first
satisfy certain conditions including (in Hiebert):
 A reasonably narrow problem to be solved or question to be answered
 Inability of either party to provide the expert evidence to achieve it
o PURPOSE of RULE 11-5 is to allow the court to appoint an investigator if the court finds it necessary to
decide an issue before the court, however, an expert must not be charged with determining the issue to
be decided (Heibert)
MacEachern v Rennie (2009 BCSC) – The Necessity Test in Mohan – testimony must be necessary inform court of
information likely outside their understanding. Statutory Standards are not determinative and expert testimony may
be considered to determine the standard of care in a general statute
Facts: Application to qualify an expert witness Mr. Eckhert to give opinion on standard of care in operating large
commercial tractor-trailers. P was struck by a commercial tractor trailer while walking or biking down the side of a road.
Counsel for D argues that qualifying the witness as an expert is unnecessary, as the standard is set out in the applicable
legislation – the motor vehicle act, because the matter is a matter of common sense and it is inadmissible because it
goes to the ultimate issue that must be decided by the court and not by witnesses.
Held: The opinions of Ps proposed expert witness are “necessary” to inform court of information wrt standard of care in
driving a commercial tractor trailer. MVAct is general statute, and statutory standards are not determinative of SOC
(Ryan). Application granted to qualify Eckert as an expert witness to testify
Warkentin v Riggs (2010 BCSC) – expert witnesses must uphold duty under Rule 11-2 to assist the court and not
advocate
Facts: MVA, P alleges injures, D admits liability for collision. D argues that the evidence report is not impartial, as it is
written in an argumentative way, emphasizes matters that benefit Ps position while omitting and ignoring medical
literature that do not. Does not present in an objective manner, took an advocacy stance, missed a deadline and was not
responsive to opposing counsel’s Dr expert, simply resubmitted initial report.
Held: Evidence NOT allowed. Evidence is partial, in breach of Rule 11-2. Inclusion would prejudice the case.
Bendetti v Breker (2011 BCSC) – court cannot appoint joint expert on the unilateral application of one party, and
cannot appoint prior to a CPC.
Facts: Application for order to appoint a joint expert. Pre-CPC. P suffered closed-head and psychiatric injuries as result
of MVA, that will affect his career choices. Counsel for P argues that order is cost-effective for both parties, routine in
other jurisdictions. D argues that this is not proper procedure - appointment must occur at CPC, and that this will preempt the D’s right to an independent medical exam, D would be prevented from choosing a medical expert. Also, a
physician who conducts an IME also offers litigation advice in meeting the various issues in a case, and this discretion is
lost with the appointment of a joint expert.
Held: Court refuses to appoint joint expert as the rule only allows the court to direct who the expert will be once parties
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agree to a joint application and appointment cannot occur before CPC. Appointment at this stage would seriously
prejudice the case against the P, in denying them right to expert consultation.
Hiebert v Hiebert (2006 BCSC) – court’s power to appoint an expert of their own initiative must not be used where is
has the effect of imposing a search warrant on a party to litigation
Facts: Divorce proceedings. Mr H owns a few companies, Ms H a home-maker. Mr. H ordered to pay spousal and child
support Counsel for Ms H requests a specific court appointed expert, and argues that using the rule (32A under the old
rules, now 11-5) to appoint and instruct the expert would reduce costs of expert evidence which is in the interest of
both parties; the letter prepared by Mr Hs accountant is deficient, confusing, and wholly inadequate in its valuation.
Counsel for Mr H argues that it is a misuse of the rule, and the letter was not a valuation. The appointment is an
intrusion on party autonomy.
Held: The court refused to appoint an expert, as it would have the effect of a search warrant to the detriment of Mr H.
Ethical Considerations
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Tendering expert evidence raises ethical issues for counsel:
o Counsel`s interactions with experts must reflect awareness and respect for the expert’s duty to the
court
o Counsel must avoid improper influence over the expert, whether it is active or passive
Counsel’s role in preparing the expert
o Counsel’s influence is limited to form and cannot affect the substantive content of the expert testimony
Counsel have a critically important role in the formation and preservation of the expert’s file
Selecting and Retaining Expert Witnesses
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On preliminary consideration, decide whether the expert is needed for consultation only, or for trial
o Risks associated with having the expert play both roles; in complex litigation it is prudent to have a
“coordinating” expert who know the area broadly and can assist in recommending experts to engage for
each role of the separate roles of consultation and trial testimony
Analyze the facts carefully and determine:
o What opinion evidence is required
o What kinds of experts could provide the opinion sought and
o Identify the risks involved in putting forth expert evidence
Prior to initial contact:
o Research the expert’s CV carefully including her publications, previous expert testimony or consultation
and try to identify and potential conflict
o Eliminate any expert who has been criticised, undercut or sanctioned for ethical transgressions
Potential sources for finding the right expert
o University departments, professional and trade associations, scientific or technical literature on the
subject matter, a review of relevant case law, clients, the internet, other counsel, previously used
experts in related fields
The Do’s and Don’t’s of Selecting an Expert Witness
 DO:
o Canvass for conflict. If no conflict:
o Describe the case briefly to the potential witness and explain the issues that require expert evidence
o Consider the potential expert witness’s demeanor and experience in court
o Apprise yourself fully of the expert’s relevant experience
o Discuss the relevant practical or academic work with them and discuss their court experience,
including any negative judicial commentary
o Discuss the expert’s view on important issues (like a friendly cross-examination)
o Explain the litigation process
o Explain the ethical and legal issues related to the expert’s role
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o Explain billing
DON’T:
o Don’t retain and expert without instruction and without first considering other possibilities
o Don’t do all of the talking, this is not conducive to determining the potential expert’s ability to
communicate to laypersons
SELECT YOUR WITNESS:
o Choose the best candidate and move quickly – people are busy and their schedules fill up.
o Retainer Letter: a formalized letter setting out the facts of the case, and the type of opinion the
expert is being retained to provide. The letter is likely to be produced at trial, so it should be drafted
carefully in consultation with the expert. The letter should include the issue of fees, also to be
discussed in consultation with the expert.
o Ensure Ongoing Communication with the expert, and be continually mindful of legal and ethical
considerations
Preparation of the Expert’s Opinion
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Do’s and Don’t’s of Expert Opinion Preparation
DO’s
o Comment on stylistic, structural, mechanical matters of the opinion and on legal and ethical
requirements
o Offer suggestions in making the explanation of the expert’s opinion more palpable for the court
o You may request the expert to refine their draft to be more thoughtful and logical (taking care not to
trench on substantive alterations) or simply retain a new expert or no expert at all
DON’T
o Do not tell the expert to change her opinion in a draft report wty substantive matters
o Do not simply ask an expert to write a report and leave it al that
o Do no file a report that you know is unsatisfactory
Preparing an Expert for Trial
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Inform the expert witness of her duty to the court
 Increasingly, it is required that expert witnesses are required to certify that they ar aware of the duties of
expert witnesses to be independent, impartial, and that they have complied with these duties and will
continue to do so (Rule 11-2)
 In some countries (not Canada *yet*) the court requires accreditation of testimonial experts by an
independent oversight body
o The UK and some European countries already impose this standard
o There is a ample evidence in case law that perhaps this is a necessary step that Canada SHOULD
take to ensure the integrity of expert testimonials in court
 Inform expert of court rules, mandated deadlines and expected time commitment with respect to filing
deadlines for expert reports and being available for cross-examination by opposing counsel
 Ensure that the expert is fully conversant with respect to the opinion they will be providing as evidence in
court, including apprising themselves of the work of others in their field
 In form the expert of the guidelines that govern viva voce evidence
 Ensure the expert is familiar with all of the issues that are raised by the case
Cross-Examination of an Opposing Party’s Witness
Strategy for Preparing to Cross-Examine Opposing Party’s Expert Witness
IDENFITY YOUR AMMUNITION:
 Consider the need for the opposing party’s expert opinion; are the Mohan criteria met?
 Identify sources of potential bias
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Examine the expert’s file carefully
Identify factual assumptions and premises that are not consistent with trial evidence
Consider whether the underlying science is “novel” or well-established field. If the former, it is therefore subject
to closer scrutiny
Identify if there are any deviations in methodology or reasoning from the related scientific literature
Identify inconsistencies with the experts own previously expressed/published opinions
Preparation Requirements for Examining Counsel in Cross-Examining the Expert
 Have a detailed understanding of the tendered report of opposing party’s witness including all appendixes,
calculations, explanations, etc
 Be familiar with all publications of the expert on the related topic
 Apprise yourself of publications/work that contradict the opposing counsel’s expert witness’ opinion
KNOW WHEN TO STOP THE EXAMINATION – if you have seriously damaged the expert’s credibility and/or undercut the
expert on a key issue, consider whether the risks of proceeding outweigh any potential upside
GUEST SPEAKER KIERAN BRIDGE: DOCUMENTS/ STRIKE
DEFENCE
Chung v Siew: examples of Applications for Documents and Strike Defence
Niece and nephew-in-law with real estate and business backgrounds convince their elderly aunt to give them $1.1M for
“investment”; they purchase real estate in Vancouver. Aunt visits several times to view her “investment properties” but
given excuses wrt information on accounting or appreciation of the properties.
In 2010, aunt seeks legal advice, and D srespond that aunt gifted money to them. Aunt pursues a breach of trust action,
as the Ds had told P that the houses were in their names for tax purposes. Document discovery was continually evaded
with many excuses;
According to P, the D’s strategy was to delay, obfuscate ,and raise ridiculous issues hoping the P would pass away before
court (which she did). Ps counsel applied for court ordered document production:
 COURT ORDERS
 Taylor Order – Ordered Document Disclosure
 Kelleher Order- P’s application for strike defence denied wrt breach of Taylor’s Court Order; Alternately,
document order issued.
o D breached the Kellleher Order (and Taylor Order still not met). D was therefore in breach of 2
orders...
 Newhart – gave the D “one last chance” and did not strike out the defence.
 Muir – adjourned the application, granting Ds more time to comply.
TRIAL- Groper, J.
Still no document disclosure: Did not strike defence, but find them in contempt of court instead as an appropriate
punishment
 Ps response: Objects to contempt of court finding, instead insisting on strike defence, as the prior does not assist
P in advancing her claim. Justice Groper found them in breach of Taylor and Kelleher order and was going to give
them a second final chance.
Documents were FINALLY produced but find that documents still missing from the Taylor order. Advised Ds counsel that
they were going to resume the application due to missing documents. D counsel retaliated by saying that P had not
produced their documents and won.
 This finding violates a General rule: if you are in breach, you cannot seek an application to get the other party to
do something unless they fulfill their order first.
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