2023 2024 Civil Litigation Summary Final LLFLQV

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Civil Litigation
Chapter 16: Jurisdiction and organization of the Courts of Ontario
1. Organization of Courts of Ontario - 8 regions 145
Language: Official languages of the courts of Ontario are English and French
Part I - Court of Appeal for Ontario: Inherent jurisdiction; Chief Justice of Ontario (president of Court)
 Associate Chief Justice & other judges; the judges are addressed as “Justice” or Justice (last name) 146
Part II - Court of Ontario (Two divisions: 1. Superior Court of Justice and 2. Ontario Court of Justice)
 Superior Court of Justice (civil & criminal) – proceedings heard by 1 judge; Divisional Court - 3 judges
o Associate judges are on this court (if motion within their jurisdiction, should be heard by them) 146
o Divisional Court (Appellate jurisdiction): applications for judicial review of admin actions 147
o Small Claims Court (less than $35,000) – appeal to divisional court when $3,500+ payment 147-148
 Ontario Court of Justice (also court for Youth Justice) – proceeding heard by 1 judge 148-149
 Specialized courts: Toronto Region (Commercial, Estates, Family)
o Commercial List (branch of SCJ, bankruptcy matters must be heard on the Commercial List) 149-150
o Estates List (branch of SCJ) 150
 Case Management (R. 77) (assigned by judicial order)
o Case Management Conferences (77.08) 150
 Simplified Procedure (R. 76): mandatory for any action $200,000 or less (exlcusive of interest + costs)
o Money, real/personal property
o Can be optional if amount claimed $200,000+ if D doesn’t object; even if D objects keep going but
abandon any amount over 200k 151
COVID-19 pandemic: adaptations: i.e. expanding online filing capabilities 151
Chapter 17: The Lawyer-Client Relationship

1. Introduction: Certain principles as it related to civil litigation and the Rules of Civil Procedure (Rules)
2. Lawyer must have Authority to Act: Must have authority of client before taking any steps on client’s behalf
3. Client must have capacity: Ensure that client capable of giving instructions & has status to appear before court
 Capable of giving instructions and appear before court
 Corporation: must be incorporated & retainer authorized; Trustees: authorization of all trustees re estate 153
4. Communicating with Clients: Explain to the client that litigation is costly, time consuming and stressful
5. Encouraging Compromise or Settlement and awareness of ADR: Duty to encourage ADR when possible 154
 The Court also calls upon the cooperation of counsel and parties to engage in every effort to resolve matters;
this includes attendance at mediation
6. Withdrawal of Service: Cant withdraw without good cause (i.e. loss of confidence) + reasonable notice 154
Chapter 18: Privacy Issues and Litigation

1. Gathering Evidence for Litigation
 Consider PIPEDA (reasonableness of collection), Surveillance (investigators) 155
2. Pleadings: minimum amount of personal information that is necessary to properly describe the claim 155
3. Discovery: is document relevant to proceeding? (Proportionality); deemed undertaking rule
 Sedona Electronic Discovery 155-156
4. Factums: Lawyers should avoid including immaterial personal data identifiers in factums 156
5. Published Findings: Yes – Certain publicly available information; No – Commissioner Reports
6. Access and Solicitor-Client Privilege: orgs can refuse access to information during the course of litigation 156
Chapter 19: Preliminary Matters before commencing proceedings

1. Introduction: preliminary matters to be considered before commencing a proceeding
2. General principles of the Rules of Civil Procedure: (i) Just, (ii) Expeditious and (iii) Least expensive outcome
 R. 2.01: Failure to comply with these rules – irregularity 157

 Computation of time: start from next day and count last day event happened, when time period 7 days or less
prescribed, don’t count holidays; where deadline occurs on holiday, act may be done on the following day that
is not a holiday
3. Causes of Action: set of facts & legal elements that justifies right to sue to obtain enforcement of a right 157
4. Demand Before Action: Make a demand before a right to commence action arises 158
5. Notice required by statute: Notice before action or proceeding can be brought (clear & specific) 158-159
6. Notice of Constitutional Question: notice to AG of Canada & Ontario – 15 days before q argued 159
7. Limitation of Actions: Jan. 1, 2004 (2 year; ultimate 15 year) from when claim discovered 159
 Ultimate: doesn’t run during time in which the person (i) willfully conceals (ii) willfully misleads 160
 COVID-19: limitation periods suspended from March 16, 2020, to September 13, 2020 160
8. Limitation of Liability: statutory limits – innkeepers, marine liability, carriage by air 161
9. Interest on Judgments:
 Prejudgment interest: calculated from the date the cause of action arose to date of order
 Post Judgment Interest: Interest accrues on any money owing under an order 161
 Discretion of the court: Court has disrection to order any costs
10. Choice of Procedure: Must consider simplified procedure even if claim over $200,000 162
11. Small Claims Court: For any matter not over $35,000 consider Small Claims
12. Method of attendance at hearings: heard in person, by teleconference, or by videoconference 162
 Attendance at virtual hearings: see practice directions
Chapter 20: Parties: Persons who can sue and be sued

1. Introduction: issues lawyers face when determining who can sue and be sued
2. Three types of Parties Under Disability (mentally incapable person, absentee, minor)
 Duties of a litigation guardian: Proceeding on behalf of person under disability = litigation guardian 163-164
 Litigation Guardian for Plaintiff or Applicant: court appointment not necessary 164
Must file affidavit with the court, in which among other things, consent to be a litigation guardian
Only Children’s Lawyer/ the PGT can act as guardian for a P under disability without filling this affidavit
 Litigation Guardian for Defendant or Respondent: by court appointment 164
A party under disability is not permitted to defend until a litigation guardian is appointed by the court on a
motion (see exemptions)
P can request litigation guardian appointment for D 10 days before bringing motion
 Who may be a litigation guardian = any person who is not under disability and is capable of suing 164-165
 Where no guardian: Children’s Lawyer ( party under disability is a minor) & Public
Guardian/Trustee (mental capacity)
 Failure to appoint litigation guardian
 Can appoint one even after limit expired; lawyer may be liable to pay the defendant’s cost even if
the lawyer is unaware of the legal disability of the plaintiff 165
 Limitations Act: Do not run during time disabled not represented
 Service of documents: leave copy of document with lit guardian or if none, PGT 165-166
 Can try to note disabled party in default but only with leave of court
 Court approval of settlement: settlement of claim with disabled not binding until court approved 166
 Judge can approve by application (agreement before proceeding)/motion for approval (after)
 Money to be paid into court: 166
 Any money payable to a person under disability under an order/ settlement must be paid into court,
unless judge orders otherwise
 Any money payable to the Children’s lawyer on behalf of person under disability paid into court
 Liability for costs: guardian may be personally liable for costs. Entitled to recover from the person under
disability. Litigation Guardian not liable for costs of proceeding when unsuccessful 166
 Removal of Litigation Guardian 166-167
o Cant be relieved of position unless (1) court fully informed & (2) suitable replacement is found
o Situations: minor reaches age, party not disabled anymore, guardian not acting in best interest 167
 Removal of a lawyer for a litigation guardian. The lawyer has to file a motion to be removed 167
3. Executors, Administrators, and Trustees
 Proceedings by or against Executors, Administrators, Trustees
Proceedings may be brought by/against these 3 parties without joining beneficiaries as parties. Exceptions 167
 Where a deceased person has no personal representative
o Person seeking to commence proceeding against the estate of a deceased with no executor/
administrator can bring a motion for court appointed lit administrator 168
o Judge can appoint rep where appears estate of deceased person is affected by legal proceeding
 Remedial Provisions
o R 2.01 = non compliance with rules; rule 9.03 is equivalent in estates (cures defects) 168-169
o This remedy allows for procedural defects and grants relief
 Foreign Administrators and Executors: Foreign administrator cannot sue, with exceptions 169
 Defences that may be raised by personal representatives
o Executor/administrator can defend an action on behalf of estate as deceased would
o Have specific defences when insufficient assets to satisfy P’s claim, like insufficient assets 169
 The Estates List: specific type of estates issues heard in Toronto now
4. Representation of an interested person who cannot be ascertained (R. 10) 169-170
 Judge can appoint a representative for person / class that cant be ascertained, found or served 169
5. Corporations: Corporation is the only proper plaintiff in the proceeding (Directors use corp name) 170
 Consider: Derivative actions, Intervention, Oppression remedy
6. Partnerships and sole proprietorships
 Partnerships (R. 8): chose whether bringing action in name of partnership or individual partners 170-171
o Partners must deliver a common defence in firm name 171
 Sole Proprietorship: sole proprietor partner and business name = firm name
7. What to do when your client dies: stay proceeding (obtain order to continue) 172
8. Bankrupt Parties: stayed until undischarged bankrupt gets approval from trustee in bankruptcy
9. Vexatious litigants. A judge of the SCJ may prohibit a person from commencing or continuing proceeding where
that person has instituted vexatious proceedings or conducted a proceeding in a vexatious manner 172
Chapter 21: Joinder and Interventions

1. Joinder of parties (R. 5)
 Territorial Jurisdiction: actions in personam and in rem : in personam = v person; in rem = v property 173
 Necessary and proper parties: every person who is necessary to enable court to adjudicate
effectively and completely on the issues must be made party to any legal proceeding 173
o Necessary parties & Mandatory Joinder 174
o Proper Parties and Permissive Joinder: two or more P/D’s join (common issues)
 Curative Provisions and importance of proper joinder (R 5.04): (misjoinder) 175
 Parties in particular cases:
o Proceedings in Contract: whether person necessary party depends on K sued upon 175
 Joint Contract (all), Several Contracts (not necessary that all join)
 Joint & Several (some or all), Alternative Claims: joinder may be permitted 175-176
o Proceedings in tort: Negligence Act (see list) 176
o Actions for possession of land: all with right to immediate possession should be joined
 Act in conversation: must have right to immediate possession and land be vested in them
 Relief against joinder: Court has power to relieve against unduly prejudicial or complicating joinder 176
Intervention (R. 13): person who is not party to a proceeding may seek to intervene
 Intervention as added party: if have interest in subject matter; consider if undue delay 176-177
 Intervention as friend of court: render assistance to court by argument (not part of proceeding) 177
2. Consolidation or hearing together: where proceedings have q of law or fact in common 177-178
 Consolidate: actions proceed as 1 (lose separate identity) – separate actions against same D
 Heard together/one after the other: retain separate identities

3. Separate Hearings: court has power to order that distinct issues in proceeding be heard separately 178-179
Chapter 22: Commencement of proceedings

1. Place of Commencement: if statute requires proceeding in particular county, commenced in that county 181
2. Action or Application? every proceeding brought by action except where rules provide otherwise
 Actions: proceedings in which parties exchange pleadings, produce documents, examine for discovery
 Application: judge determines q’s of law/mixed fact based on affidavit (no oral testimony)
3. Originating Process
 Civil proceedings commenced by issuance of an originating process (proceeding = action/application) 181
 If counterclaim & party to main action, no originating process; if not party to main action, then yes 182
 Where leave is required = must be obtained by motion to the court
4. Types of Originating Process
 Actions: issuing statement of claim or Notice of Action, Counter/Cross/3 rd /4th Party Claims
 Applications: Notice of Application (specific relief) 182
5. Form and Content of Court Documents (heading, body, backsheet) – Rule 4 183-184
 In Application (applicant and respondent), in actions (plaintiff & defendant)
6. Issuance of Originating Process
 Date, Sign, Seal, Court File Number; Date of issuance = Date of commencement of proceeding 184
 Must also file type of claim being instituted (Form 14f); SoC served within 6 months of issuance
7. Representation by Lawyer
 Lawyer of Record: Lawyer/law firm acting for a party; commence proceeding without authority = dismiss
o Change notice of change of lawyer, notice of appointment, notice of intention to act in person
o If lawyer wants to remove themselves = serve client personally/or alternative to personal service 185
 Limited Scope Retainer: opposing party cant approach client on issues within that limited scope 185
8. Proportionality: just, most expeditious, and least expensive determination of every proceeding 185-186
Chapter 23: Applications
1. Introduction 187
 Parties to Application: Applicant and Respondent
 Notice of Appearance and Factum: Respondents response: notice of appearance and factum. There is no
statement of defence in an application.
 Examination: No discovery (but witnesses can be examined). (See Exemptions)
 Hearing of Application: A Judge, never a jury, hears an application
2. Authority to Commence Application
 (i) Application authorized by Statute (r. 14.02): Evidence Act, Land Titles Act, etc.
 (ii) Application authorized by the Rules 187
o Application under r. 14.05(3): depending on relief claimed (estate matters), charter remedy 187-188
o Trial of an issue: if material facts in dispute = action, because credibility involved now 188
3. Procedure of Application
 Case Management & Applications: R. 77 case management system (Ottawa, Toronto, Essex) 188
 Practice Directions for Applications: certain regions have specific directions
 Application under s. 140(3) CJA: apply for leave to institute or continue proceeding if you are vexatious
 Pre-trial or case conference: judge can direct pre-trial or case conference before a judge
 Commencement of Application: “notice of application”= originating process that commences application; 188
For an estate matter is an application for a certificate of appointment of trustee, or small estate certificate
 Form of Notice of application: state Relief sought, grounds, documentary evidence used at heating 188-189
 Service and filing of notice of application: Who should be served: served personally on all parties
o Consequences where no notice: judge can (i) dismiss, (ii) adjourn, (iii) direct service 189
o When service to be effected: 10 days before hearing, except outside Ontario 20
o Filing of notice: with proof of service 7 days before hearing
 Confirmation of application: confirmation must be provided
 Notice of appearance: Once served, respondent files notice 189
 Jurisdiction and forum: a judge of SCJ (associate judge no jurisdiction to hear application) 189-190
 Place & Date of Hearing: if heard in person, then in country where proceeding commenced 190
o Counter-Application: Respondent makes it at same place/time and to same judge as original
o Divisional Court: Heard on date to be fixed by registrar at the place of hearing
4. Material on an application
 (i) Application record and factum: 7+ days before hearing; applicant serves on every respondent who served
notice of appearance an application record + factum; respondent serves factum 4 days before hearing
o Respondent Application Record: if application record incomplete (4 days before hearing)
 (ii) Contents of application record: see list
 (iii) Filing of copy of transcript: if relying on it, file it
5. Evidence on an Application: All evidence to be used should be listed in application record 190
6. Disposition of Application
 Application treated as action, Trial of an issue, No summary judgment or determination of law 191
Chapter 24: Service of Process

1. Service of Documents Generally
 Originating process must be served personally, but otherwise not required (except summons, examination) 193
 Doesn’t need to be served on party who has delivered defence/notice to defend/appearance
 Documents that don’t need to be served personally or by alternate = served on lawyer of record
 Who performs service: a client, a lawyer, or an employee in a law firm can serve a document 193-194
2. Manner of Service in particular cases
 Service of an Individual: leaving copy with individual (delivering in their hands) 194
o If refuse = touch them with document and let it fall to ground (common law)
o Positively identify them, Bring to attention, Made aware of nature of document
 Service on a Municipality: leave copy with chair, mayor, warden, reeve; clerk 194
 Service on Corporation: leave copy with officer, director, agent; person in control/management
 Service on Partnership: leave copy with partner or any person in control/management 194-195
 Service on Sole Proprietorship: leave copy S.P. or person at personal place of business managing place 195
3. Alternatives to Personal Service
 Acceptance of service by lawyer: leave document with lawyer or employee (endorses acceptance + date) 195
o If accepting on behalf of client need written instructions
o Acceptance (for originating process) v Admission of service (for other doc = once counsel has
become lawyer of record) 195
 Service by mail to last known address: effective when received 195-196
 Service at place of residence: leave copy of sealed envelope to adult at place of residence/mail again 196
 Service on a corporation at last recorded address: mailing copy of document to corporation at last address
4. Substituted service, dispensing with service, validating service
 Substituted Service: reasonably possible means of bringing document to knowledge of person served 196
o Service on some other person, letter mail, advertising, by email or text message.
 Dispensing Service: deemed to have been served date order dispensing with service made 197
5. Service of documents not requiring personal service: Mailing/leaving/depositing copy, Courier, Emailing 197
6. Other rules
 Service by email: between 4 pm and midnight is deemed to have been made on the following day 197-198
 Service by mail: is deemed to be effective on the 5th day after document is mailed. This rule does not apply at
service by mail as an alternative to personal service.
7. Where Document does not reach person served: person receiving show it came later, when want to set aside 198
8. Proof of service: affidavit, certification of service, written admission, date stamp
9. Service Outside Ontario (17.02) without leave; (17.03) with leave 198-199
 Setting aside service Outside Ontario: 17.06 (Grounds: not convenient forum, not authorized) 199
o Deemed to have “attorned” to Ont if file statement of defence though (a.k.a accept forum)
 Manner of Service Outside Ontario: not part of Hague (17.05(2)); Hague = central authority 17.05(3)) 199-200
Chapter 25: Pleadings
1. Overview: Pleading - document that states position and/or intention of a party to the proceeding and the status 201
2. Function of Pleadings: define issues, give fair notice, define issues for discovery, constitute record of issues
 Content of Pleadings (25.06)
o Material Facts, Clear Statement, Timing (Facts material at time of action), No Evidence
o Point of law (may raise any point of law in a pleading)
o Form of Pleading: each allegation contained in a separate paragraph 202
 Documents or conversations (25.06(7)) 202
o State effect of document/conversation as briefly as possible (no precise words unless material)
 Nature of act or condition of mind (25.06(8)). Where allegations of fraud, misrepresentation, breach of trust,
the pleading must contain full particulars of the allegations
 Contract or legal relationship: facts showing existence of contract must be set out in pleadings
 Condition Precedent (R. 25.06(3)): usually implied in pleading that it wasn’t met
 Res ipsa loquitur: maxim is expired and no longer used as a separate component in negligence actions
 Judicial Notice: don’t need to plead matters of which court will take judicial notice, such as law
 Foreign Law: if foreign law is to be relied on, it should be pleaded 202
 Inconsistent Pleadings: should not be shams/fictitious (cant raise it in subsequent pleading) 202-203
 Aggravation and mitigation of damages: matters may not be material but may affect damages pleaded 203
3. Delivery of Pleadings
 Statement of Claim: must be filed within 30 days after notice of action issued 203
o After 30 days = written consent of defendant/leave of court
o Served within 6 months after issued (can join notice of action)
 Statement of Defence: within 20 days after service of SoC Ont; 40 days Canada/USA, 60 anywhere else
o Notice of Intent to Defend: extra 10 days to deliver SoD
 Reply (25.04(3)): 10 days after receiving SoD and 20 days if counterclaim made 203
 Counterclaim (R. 27): depends if only against P or if adding new party (originating process – 30 days) 203
 Cross-Claim: within time prescribed, or before D noted in default, or with leave 204
o Defence to crossclaim: within 20 days after service of SoD & crossclaim
 Third Party Claims (R. 29): within 10 days after SoD delivered, before default, or leave
o Third party defence: within normal time of delivery of defence
 Other Pleadings (R. 25.01(5)): no pleading after reply can be made without leave of court 204
4. Specific Pleadings
 Statement of Claim: Notice of Action when insufficient time to prepare Statement of Claim
o Claim for relief: set out precise relief sought in first paragraph of claim
o Post-Relief: after claim relief, the stat. of claim should contain material facts, place of trial, etc. 204
o Family Law Act: don’t need to join claim of person entitled as dependent 205
o Simplified Procedure SoC: must indicate that the action = brought under simplified procedure
 Statement of Defence
o Deemed Admissions: every allegation of fact that is not denied = deemed admitted 205
o Damages deemed to be in issue: amount of damages deemed to be in issue
o Admissions: D admits every allegation of fact they don’t dispute (or plead own version)
o No Surprises: plead to any matter D intends to rely to defeat claim of opposite party
o Types of Defence: Traverse, Confession & avoidance, Objection in Point of Law, Plea in abatement
o Simplified Procedure: D can object to simplified procedure 205
o Special Defences
 Statutory Defence, Statute of Frauds & Limitations Act, Condition Precedent, Notice 205-206
 Illegality, Want of Jurisdiction, Ultra Vires, Estoppel, Res Judicata 206
 Contributory Negligence, Act of 3rd Party, Non est factum, Want of authority 206-207
 Insanity, Not Qualified (professional), Release, payment or performance 207
 Accord & Satisfaction, Settled Account, Surrender, Waiver, Equitable Defence
 Purchaser for value without notice, Defamation & Defences
 Defences arising after action is brought (may raise matters after action commenced) 207
o Set-off and counterclaim
 Set-Off
 Legal (re debt) v Equitable (arise from same transaction & unfair if not) 207-
208
 Difference between Legal v Equitable set off (doesn’t apply to just debts; not statute
based)
 Difference from counterclaim: Set Off (defence) v Counterclaim (not a defence)
 Contributory Negligence (don’t have to counterclaim for this, can plead it)
 Indemnification: counterclaim (cant issue 3rd party claim of indemnity against P) 208
 Reply and subsequent pleadings
o Reply = required, when P intends to prove different version of facts; rely on matter that can surprise D
5. Amendment of Pleadings (R. 26)
 Granting of amendment (if no prejudice that could not be compensated by costs or adjournment) 208
 New Cause of Action (an amendment will not allow to set up a new cause) 209
 Amendment at trial (may be amended); Amendment after trial (so that pleading conforms to case tried)
 Jury Trial (amendement based on something more than just finding of jury)
6. Attacking Pleadings
 Striking out a pleading or other document (25.11)
o Scandalous, frivolous, vexatious: to abuse/prejudice opponent; irrelevant
o Timing of motion: can’t strike if moving party already responded
o Lengthy, anticipatory, or inconsistent pleading: struck out if delay fair trial/obscure/prejudice 209
o Difference from R.21 motion for determination of an issue before trial: Motion to strike 25.11
(Formal) v Deficiencies 21 (Substantive) – cant fix by amendment:
 Substantive = entire action fundamentally flawed;
 Formal = portions of pleading flawed 209-210
 Rule 21 = heard before a judge; Rule 25.11 = can be heard before an associate judge
 Motion for Particulars (25.10)
o Particulars are to define issue, prevent surprise, help party prep for trial, facilitate hearing
o Written Demand: motion for particulars must be preceded by written demand
o Facts Missing, Material Facts and particulars (min level of facts disclosure in pleading)
o Contrast with motion to strike: Particulars (contains all material facts missing pieces) v Motion to
Strike (lacks material facts)
o Timing of motion: before moving party serves pleading (since need more info to serve pleading) 210
Chapter 26: Disposition without trial

1. Overview: matters that end dispute completely before a trial or hearing
2. Default Proceedings – R19 (Step 1: Noting in Default; Step 2: Default Judgment) 211
 Noting in Default: D fails to deliver SoD within prescribed time; P can take 2 steps for default v D
o Filing proof of service of claim: prove you served SoC
o Defendant under disability: leave must be obtained on motion to judge
o Defence struck out: when SoD struck out and new SoD not filed in time
o Motion by co-defendant: D can bring motion noting co-defendant in default
o Consequences of default: D is deemed to admit all allegations of fact in SoC
 Upon Default: P can proceed without D’s consent; D not entitled to further notice of steps
The second step depends on the nature of the plaintiff’s claim: 211
 Signing Default Judgment:
o Entitlement: P gets what they alleged since D deemed to have admitted, Registrar signs claim 212
o Requisition for default judgment: P must file requisition for default judgment before signing
o Costs: on signing default judgment, registrar shall fix costs under Tariff A
 Motion for default Judgment:
o Entitlement: P moves before judge for judgment against D (rather than registrar signature) 212
o Motion before associate judge: Where registrar refuses to sign, can make motion to associate judge
o Judicial Adjudication required: P’s relief/damages may not be appropriate, judge adjudicate 212-213
o No Notice of Motion to Defendant: Motion will proceed without D appearing/getting notice 213
o Affidavit evidence on motion: P motion support by affidavit when seeking unliquidated damages
o Judgment, dismissal, or trial: Judgment only if facts alleged in SoC disclose cause of action
 Setting aside or varying default
o Can set aside note of default/execution of default judgment when D delivers SoD with P’s consent
o Motion before judge or associate judge: 213
 If signed by registrar/granted by court (associate judge) then set aside on motion to court
 If default judgment obtained re SoC or after trial, must be brought before judge
o Criteria and test:
 Default Judgment = must show genuine issue for trial
 Noting of default = only in extreme cases need to show good defence 213-214
3. Summary Judgment (SJ) - R20
 Motion for SJ when another party can produce no or insufficient evidence to support allegations 214
 Availability
o No Genuine Issue for Trial: Using Powers (Weigh, Credibility, Inference)
o Difference from R. 21: Summary = Factual/Evidence; R.21 = Issue of Law 214
 Moving Party
o Motion by P: motion dismissing all or part of claim (After D has delivered SoD)
o Motion by D: dismissing all or part of P’s claim after delivering SoD 214
 Material on Motion
o Information & Belief: adverse infer if cant provide evidence of party with personal knowledge of
contested facts 214-215
o “Other Evidence”: transcripts, cross-examination on affidavits
o Factum: concise statement of facts and law being relied on
o Responding party’s affidavit material: show there is genuine issue requiring trial 215
 Jurisdiction of associate judge
o The court can make findings of fact and determine q of law on a motion for SJ
o Associate judge: in a motion for SJ under R.20 cant determine q of law under r. 20.04(4) 215
 Disposition on Motion
o Grant SJ, Order trial of certain issues, Grant judgments 215
o Where trial is necessary: Even if don’t grant SJ can still expedite proceeding 215-216
o Stay of Execution: can stay SJ when other claims ongoing undetermined 216
o Costs: Can fix costs on a SI (substantial indemnity) basis
4. Determination of an Issue before trial - R21
 Determination of an issue of law (21.01)(1)(a): party may move before judge for q of law 216
 No reasonable cause of action or defence (21.01)(1)(b): strike out pleading on grounds of no cause of action or
defence
 Stay or dismissal: can have action stayed/dismissed on several grounds 216
 Promptness: r. 21 must be made promptly and failure to do so may result in additional costs
 Factum: required to serve factum
 Test: Essential test in a motion under R. 21 is “no chance of success” 216-217
 Principles & Strategies for (21.01)(1)(b):
o Principles: facts taken to be plead as true; satisfied cant succeed at trial
o Strategy: consider how serious it is; don’t challenge if will be amended anyways 217

5. Special Case: Action or Application (R. 22)
 Parties to an action/application may state q of law for opinion of court; special case 217
 Form and Content Form 22(A): concise statement of material fact, set out relief, copies of necessary
documents 218
 Court of Appeal (can make motion for leave with CA, when conflicting decision judges in Ontario) 218
6. Discontinuance or withdrawal of action (R. 23)
 Discontinuance by Plaintiff: serve notice of discontinuance (may be liable for PI (partial indemnity costs)
o Party under disability: discontinued only with leave of judge
o Effect on counterclaim, crossclaim, or third party claim
 Counterclaim: D can still proceed with counterclaim even if action discontinued by them
 Cross claim/3rd party claim: deemed to be dismissed 30 days after continuance
o Costs of Discontinuance: make a motion concerning costs within 30 days of dismissal
 Withdrawal by Defendant: serve notice of withdrawal of defence
o If cross/3rd party claimed, need leave of court before withdraw 218
o Deemed Default: deemed noted in default Withdrawal of admission: consent from other party 218
7. Abandonment of Application 219
 Abandoning (not discontinue) by delivering notice of abandonment 219
 Party Under Disability: abandonment requires leave of judge
 Deemed abandonment: fail to appear at hearing of application = deemed abandoned
 Respondent entitled to costs: respondent on whom notice of application was served = entitled to costs
8. Dismissal of action for Delay (R. 24)
 Availability of Dismissal: move to have action dismissed for P’s delay
 Plaintiff under disability: person on whom notice of motion to have action dismissed for delay shall be served
and circumstances under which an action may be dismissed 219
 Notice of order: serve copy on every D to action who has cross claimed v the D
 Effect on counterclaim, cross claim, 3rd party, subsequent action
o D can proceed with counterclaim when action against them dismissed for delay
o Cross/3rd: deemed to be dismissed unless court orders otherwise during 30 day period
 Costs of deemed dismissal: any party can bring motion for costs within 30 days after dismissal
 Test: P must provide reasonable excuse for delay; D needs to show suffered prejudice from P’s delay 220
 Material on Motion: D’s motion to dismiss for delay needs affidavit + evidence of prejudice
 Dismissal by registrar: Registrar shall dismiss where action not set down for trial & other factors 220
Chapter 27: Subsidiary Claims: Counter/Cross/3rd Party (client proceeded by action and D defending now)
1. Overview: defendant may defend the actions via several claims 221
2. Counterclaim (claim against P or jointly v P and another party)
 Joining a Party: D can join a party to the counterclaim; Co-counterclaimant: Adding a stranger to the litigation
 Separate Trials: Usually tried with main action but if unduly complicate/delay = separate trials.
 Dismissal: If D doesn’t attend trial; counterclaim dismissed
 Discontinuance/Dismissal: if action discontinued/dismissed v D, proceed with counterclaim
 Pleadings 221
o Service: included in same document as statement of defence
 Original Process = if served to someone not part of main action
o Response: if already party to main action (within 20 days)
 If not party: 20 days if in Ont, 40 if in Canada/USA, 60 if outside North America 221-222
o Further Response: D can deliver a “reply to defence of counterclaim” – 10 days
o Amendment: can amend defence already served to add counterclaim against P or party to main action
 Stay of Main Action, Stay of Execution, and Set-Off
o Court can stay main action until counterclaim disposed of
o When BOTH P and cross claim D successful, set off amounts and give difference to larger win
3. Crossclaim (NOT commenced by issuing of an originating process)
 Availability of Crossclaim: co-d may be liable all or part of P’s claim, should be bound, etc. (28.01)
 Difference from Counterclaim: co-d must have something to do with main action; independent claim 222-223
 Discontinuance/Dismissal of action: if action v d crossclaiming dismissed, crossclaim = deem dismissed 223
 Pleadings
o Service: included in same document as statement of defence
 Delivered any time before D is noted in default (doesn’t need to be delivered personally unless
failed to deliver notice of defence)
o Response: within 20 days after service of statement of D & crossclaim
 Can defend both crossclaim and plaintiff’s claim in main action
o Consequences regardless of defence: regardless still bound by order in main action
o Defence not required: when only contributory/indemnity under Negligence Act and main D
already delivered D in main action setting forth facts on which cross D will rely on 223
 Negligence Act
o D who claims contribution from co-D under Negligence Act must do so by crossclaim
o Joint tortfeasors recover from each other in proportion to fault (rather than P winning v one) 223-224
4. Third (and subsequent) Party Claim: claim by a defendant against a stanger
 Availability of 3rd Party Claim: not party to action & liable all/part of P’s claim, should be bound, (29.01) 224
 Comparison with Crossclaim: D can recover from 3rd party even if P unsuccessful v D
 Discontinuance/Dismissal of action: if action v d making 3rd claim dismissed, 3rd claim = deem dismissed
 Objectives of 3rd party Claim: avoid multiplicity of actions, saves costs, etc.
 Pleadings 225
o Issuance: as a matter of right within 10 days after D delivers statement of D
o Time extension: can issue with P’s consent or with leave if after 10 days
o Service: 3rd party claim and all relevant documents on 3rd party within 30 days after claim issued
 Shall also be served on every other party to main action within time for service
o Court File Number: same court file number as main action followed by suffix letter “A” 225
 Third Party Defence: Deliver defence within 20 days after served (40, 60 day rule)
 Consequence of Defence: served all subsequent document, get main judgment on notice
 Third Party Defence on Main Action
o Third party can deliver SoD in main action (defend all actions above them in chain) 225-226
o Defences Raised: cant raise defences arising solely out of relationship with D (contract) 226
o Independent Claim: if independent claim for damages = no place since no interest in main action
rather you dealing with a side issue of who hurt you so don’t bring that into main
o Consequences of Defending Main Action: same rights & obligations as D in main action
o Consequences regardless of defence: bound by any order made in main action
 Reply: D/P both shall issue reply to 3rd party within 10 days after service of 3rd party defence
 Counterclaim by 3rd Party: 3rd party can counterclaim against D who made it 3rd party and P in main action
 Trial of 3rd Party Claim: to be tried at or immediately following main action
 Prejudice or Delay: 3rd party should not prejudice or unnecessarily delay P
 Statutory 3rd Party under Negligence Act: allows for parties to be added as defendant or a 3rd party
 Simplified Procedure: Where trial of action is governed by simplified procedure and D counter claims, cross
claims, etc., main action (together with subsidiary claim) continue under simplified procedure 226
Chapter 28: Motions (proceeding within a proceeding)

1. Overview: proceeding within a proceeding; commenced by notice of motion; “moving party” v “responding party”
2. Procedure on a motion (R. 37) 227
 Case management and motions (R. 77): Toronto, Ottawa, Essex
 Practice directions for motions: Certain regions give practice directions
 Local Practice: verify matters with your local registrar (filing)
 Timing of a Motion: if set down action for trial already, need leave of court to bring motion 227
o Motion before proceeding commenced: in urgent cases can be bought before proceeding. 227
o Motion post-judgment: after if helping to enforce orders (enforcement orders) 228
o Motion not allowed: leave must be obtained to continue any motions after an action commenced
 Notice of Motions: motion is made by way of a notice of motion
 Service & Filing of Notice of Motion
o Person or party to be served: served on any person who will be affected by order sought
o Consequences where no notice: dismiss, adjourn, direct motion to be served
o Motion without notice: many motions don’t require notice (extend time for 3rd party claim)
o When service to be effected: at least 7 days before motion is heard
o Where service not required: filed at or before hearing in court office where motion to be heard
o Extension or abridgment of time or service: court can order extension/abridgement 228
 Place of hearing on a motion: county in which proceeding was commenced 229
 Jurisdiction of judge and associate judge: same jurisdiction to hear all motions with exceptions 229
o Interlocutory Injunction: can only be heard by judge (not for period over 10 days)
o Complicated Proceedings: to be heard by a particular judge
 To whom a motion is to be made: to court (if associate judge) otherwise to judge
 Confirmation of a motion: party making motion on notice to another party must confer and not later than 2 pm
5 days before the hearing date: give the registrar and the other party a confirmation of motion
o If the moving party fails to send a copy of the confirmation to the other party, the responding party
may not later than 10am 4 days before the hearing date: give the registrar and the moving party a
confirmation of motion
 Attendance and manner of hearing: hearings are open to public unless possibility of serious harm 230
 Motion heard in writing: may be heard in writing without attendance of other parties
o Response: within 10 days of serving material respondent must file document to court 230
3. Material on a Motion
 Motion Record: (table of contents; copy of notice of motion; affidavits; transcripts; other material required)
 Pleadings: copies of pleadings can be provided in “other material” 230-231
 Responding party’s motion record: can serve own motion record if feel the record is incomplete 231
 Material filed as part of record: any material for use on motion can be filed as part of record 231
 Transcript of evidence: if referring to a transcript, it must be filed
 Factums: sometimes mandatory (i.e. motion for summary judgment); other times unnecessary
 Refusals and undertaking charts: file this chart when compelling answers/satisfying undertakings
 Motion checklist: 9 items required to bring a motion (see material)
4. Evidence on a motion: All evidence to be used on motion is to be listed in motion record 231-232
 Evidence by affidavit: Hearsay is permissible but be careful of including privileged information 232
o Corporation: affidavit made by officer, director, employee of corporation
o Partnership: affidavit made by member or employee of partnership
o Exhibit to an affidavit: documents marked as exhibits = physically annexed to affidavit
o Service of affidavit: affidavits in support of motion to be served with the notice of motion
o Cross-examination on affidavit: can cross-x on any affidavit served by adverse party
 Simplified Procedure: cant cross-x affidavit of adverse party
 Delivery of affidavit after cross-x: cannot subsequently deliver that affidavit at hearing 232
 Reasonable diligence: refuse adjournment of party seeking it failed to act reasonably 233
 Transcript of cross-examination: purchase and serve copy of transcript on every adverse party
 Liability for costs: cross-examining party liable for PI costs for adverse party’s on motion
 Scope of cross-examination: cross-x on all matters relevant to the issues on motion 233
 Deponents duty to be informed: must inform themselves about matters relevant to issue
 Re-examination: can be re-examined on affidavit by own lawyer right after cross-x
 Notice of examination: party to proceeding (served on lawyer of record)
 Not party to proceeding = notice to lawyer on party who filed affidavit
 Resident v Non-resident of Ontario
 Adjournment for directions: cross-x may be adjourned where right to examine abused
 Failure or refusal: make such order as is just 233-234
 Examination of a witness:
o Before a hearing: can be examined before hearing so transcript of evidence available at hearing 234
 Reasonable diligence: refuse adjournment if party seeking didn’t act with reasonable diligence
 Summons to witness: where not a party but does reside in Ontario can summon them
 Simplified Procedure: examination of witness not permitted
o At the hearing: examined at hearing of motion in same manner as at trial (with leave)
 Examination for discovery transcript:
o On hearing of motion, examination for discovery transcript may be used in evidence
5. Prohibited Motion: motion to judge prohibiting other party from making further motions without leave
6. Abandoned Motion: deliver notice of abandonment (deemed if don’t appear hearing/served but not filed) 234-235
7. Disposition of a Motion: motion may be dismissed or adjourned in whole or in part 235
8. Costs of a Motion: courts will determine whom and what extend costs shall be paid
 Costs tied to success (order in successful party’s favour), Costs fixed (fixed costs to be paid within 30 days)
 Costs to be assessed (costs to be paid within 30 days after assessment); Failure to pay costs as ordered
 No costs on motion without notice (on a motion made without notice) Costs awards 235-236
 Costs Scale: Partial Indemnity (Tariff A); if Substantial Indmemnity 1.5x 236
9. Setting aside, varying, or amending order: when order was made with no notice, person failed to appear on
motion and the person is affected by order of registrar
 Notice of motion and hearing date: must be served after order comes to attention of person affected by it 236
 To whom the motion must be made: depending who made order (registrar, associate judge, judge)
 Disposition of a motion: Court may set aside or vary order on such terms that are just 236
Chapter 29: Discovery (R. 30 & 31)

1. Introduction and purposes (know case to meet), obtain admissions, facilitate settlement, avoid surprise
 Lawyers duty respecting discovery (rr. 5.1-3.1) 237
2. Discovery Plan
 If party wants to obtain information, it needs to obtain agreement of others in a written discovery plan 237-238
 If a party doesn’t agree to plan, the court can refuse to grant relief requested or deny costs
 Keep in mind Sedona principles for e-discovery (r. 29.1.03(4))
3. Proportionality in Discovery
 General Proportionality (r.1.04(1.1)) and Specific Proportionality (Subrule 29.2.03(1))
 Specific factors: time, expense, undue prejudice, unduly interfere, info readily available 238
4. Discovery of Documents (R.30)
 Overview: Party is required to Disclose and Produce 238-239
 Definitions: “Documents” & “Power” 239
 Affidavit of documents: certification (explain to your client necessity of making full disclosure) 239-240
o Note: when you sign as lawyer you not confirming accuracy/completeness of affidavit 240
 Form and Contents of affidavit: 2 types – Form 30A Individuals & 30B Corporations
o Must state never had in possession/control/power document other than those listed in affidavit
o Schedule B – claims of privilege: if object to production must still list privileged documents 240-241
o Unless Solicitor/Client Privilege = blanket description 241
 Privilege: exception to general rule of complete disclosure
o Lawyer-Client (Solicitor): for purpose of giving legal advice & intended to be confidential 241-242
o Litigation: documents prepared in contemplation of litigation: 2 part test: when the doc was created
and is the doc created for the dominant purpose of litigation 242
o Negotiations for Settlement and without prejudice communications: for purposes of settlement
negotiations 242-243
 Privileged documents not to be used without leave 243
o If abandon claim for privilege & provide copy of document 90 days before trial, can use at trial
o If not, can only use it to impeach testimony of witness or with leave of trial judge 243
 Inspection of Documents (30.04)
o Party to produce original documents listed in affidavit for inspection. 243-244
 Documents or errors subsequently discovered – Continuing Discovery (30.07) 244-245
o Duty of continual disclosure of documents that subsequently come into possession
o Duty to correct inadequacies (Must serve a supplementary affidavit)
o 30.08(1) sanctions for failure to disclose or produce relevant document
 Production from non-parties (30.10)
o Must be relevant to material issue in action and unfair to proceed to trial without it 245
5. Examination for discovery (compulsory pre-trial disclosure of all party’s knowledge of facts/evidence) 245
 R. 1.08(1) now permits discovery by an in-person examination, teleconference, or videoconference
 Time limit: 7 hours; court must grant leave for time extension; 3 hour limit (simplified procedure) 246
 Cases in which examination for discovery is available: in actions (not applications)
 Who may examine and be examined
o Parties “Adverse in Interest”: opposing pecuniary interests in subject matter of litigation
 Applied to co-d if plead facts contrary to position of other co-d 246
o Nominal Parties, Assignees, Trustee-in Bankruptcy: 247
 Expanded discovery: examine assignor with assignee, bankrupt with trustee (tag along) 247
o Corporations: right to chose person (corporation will usually want to substitute witness)
 Counsel should name particular person to be examined in discovery plan
o Partners and sole proprietors: each person who alleged to have been partner or sole prop 247
o Corporations – examining a 2nd officer, director, employee: more than 1 officer/director
employee can be examined with consent of parties or leave of the court. 247-248
o Persons under disability: examined if competent; if not = litigation guardian 248
o The Crown: list of documents can be produced delivered by Deputy AG 248
o Examination of non-parties with leave: if have information relevant to “material issue” in action
 Scope of Examination (31.06) 248
o The basic obligation: answer any proper question to best of knowledge, information & belief
o Breadth of examination: must be relevant to “any matter in issue” 249
 Note: Breadth is wider than trial court admissibility for evidence
o “Knowledge, information and belief”: testimony should be as accurate as possible 249
o Privilege: Communication Between spouses during marriage (only applied to contents of
communication – not common law) 250
 Adultery: witness cant be compelled to answer q that’ll subject them to penalty
 Communication between Doctor/Patient: No legally protected privilege 250
 Litigation privilege and the scope of examination for discovery : any relevant information in
document fair game now
o Disclosure of potential witnesses: disclose names/addresses of witnesses & details of evidence
o Expert Opinions: can give opinion evidence; “zone of privacy” for unfavourable evidence 250-252
o Insurance Policies: required to give discovery info that has nothing to do with issues pleaded 252
o Questions regarding pleadings: allowed on particular statements of fact 252
o Fishing: “asking q’s just to fish for a case”
o Oppressive questions: Not allowed if oppressive or put undue burden on party being questioned
o Questions put for ulterior motives: not for purpose of present action
o Divided Discovery: where info relevant only after determination of issue in action
and disclosure of info before issue determined would seriously prejudice a party 252-253
o Examination limited to asking of q’s: must be asked q’s (not sample writing) 253
o Questions as to law: questions are not proper if they are in effect questions of law
 Practice in relation to examination for discovery 253
o Persons entitled to be present at examination: official examiner has discretion to exclude 254
o Production of documents on the examination: produce for inspection all documents not privileged
o Methods of compelling attendance: serve on lawyer; if self-rep serve personally
 Attendance Money: Non-party in Ontario compensated for travel costs
o Time and place of examination of a resident of Ontario: not less than 2 days notice 254
o Person to be examined resides outside Ont: no automatic right to be examined where they live 254
o Counsel answering questions: where no objection question may be answered by counsel 255
o Objection to questions: objector must state reasons for objection 255
o Communications with witnesses giving evidence: (See List) 255-256
o Effect of refusal to answer a proper question: can’t later introduce information at trial 256
o Improper Conduct of Examination: adjourned & seek directions from court 256-257
o Sanctions for default or misconduct by person to be examined: re-attend at own costs, dismiss,
strike out, make order as is just
o Videotaping/Other Recording of Examination: either on consent or by court order 257
o Second Oral Examination: can be held only with with leave of court
o Examination By written q’s and answer: serve list of q’s to be answered; answer within 15 days 257
o Continuing Discovery: obligation to provide continuing discovery 258
 The uses of an examination for discovery 258
o Read examination into trial record as evidence 258-259
o Contradict the party on cross-examination: prior inconsistent statement from discovery
to impeach the witnesses credibility (show the inconsistency) 259-260
o Evidence against the party in another suit: evidence from former action used in new one 260
o On a motion: can use evidence obtained on a motion
6. Inspection of Property (R. 32) 260
o Order for inspection of real or personal property where necessary for proper determination of issue
7. Physical or mental examination of parties 260
o Order that party undergo a physical or mental examination by 1+ health practitioners
8. Deemed undertaking (Rule 30.1): not to use info or docs obtained from discovery for any collateral purpose 261
9. Simplified Procedure for action under $200,000: 3 hours for examination for discovery 261
Chapter 30: Offers to settle and pre-trial procedures

1. Introduction: Rule 49 encourages settlement by imposing cost consequences if reasonable offer not accepted
2. Place of Trial: proceeding in Ont but can change place for trial under r. 13.1.02(2) “interests of justice” 263
3. Jury Notice
o Option if in SCJ but many claims to which jury trial not available; must issue jury notice 263
o Other party can move before associate judge/judge of SCJ to strike jury notice 264
4. Rule 77 and Case Management
 Purpose and general principle: to address the issue of excessive expense and delay in the civil lawsuit 264
 Application: actions and applications in Ottawa, Toronto and County of Essex (Windsor) 264-265
 Case Management Powers: conferred to judges / associate judge 265
 Assignment for case management: Criteria for assigning a proceeding to case management: 265
 Motions: procedure governed by practical requirements of the situation Case conferences: judicial control 266
 Transitional rules: preserve the former practice for actions commenced under prior case management regimes
 Provincial civil case management pilot project- one judge model : one judge, civil case manag project
5. Listing for Trial 266
o Undefended action = filing trial record (placed on trial list)
o Defended Action = “set down” for trial before placed on trial list 266
Consequences of listing for trial
o All parties deemed ready to proceed with trial once action placed on trial list
o Cant initiate a motion or discovery at this point without leave of court 267
Dismissal of an action for delay (48.14)
o Action dismissed for delay if not set down for trial within 5 years after action issued
o Dismissal order can be avoided if all parties consent to draft order for remaining steps 267
o If cant consent to timetable, motion brought for status hearing to argue why actions shouldn’t be dismissed
6. Offers to Settle (Rule 49) – Offers made in writing
o Introduction: r. 49 offer can be in respect of only some claims
o Offer and Acceptance
o If accept offer = binding contract 268
o Lawyer should advise client to settle whenever its possible to do so on a reasonable basis
o Offer can be withdrawn any time prior to acceptance by serving notice of withdrawal in writing 269
o Costs should be included in an offer to settle: claims for principal, interests and other damages
o Failure to comply with accepted offer (49.09): other party may make motion to enforce; continue proceeding
o Cost Consequences of rejecting reasonable offer (49.10): financial penalties 269-270
o Prerequisites to applicability of r. 49.10
o Offer made at least 7 days before hearing, not have been withdrawn, not have been accepted 270
o Exercise of discretion: Consider written offers even if not made under rule 49.10. 270-271
o Multiple Defendants and offers to contribute: offer made to 1+ the D’s; offer doesm’t need to be to all 271-272
o Possible costs orders against unsuccessful defendants 272
o Sanderson Order: unsuccessful D pays costs to successful D directly
o Bullock Order: P pays costs to successful D and reimbursed by unsuccessful D 272
o Applications to counterclaims, cross claims and third party claims Rules 49.01-49.13 apply
o Parties Under Disability: no acceptance binding until settlement approved by judge
o Duty to inform registrar of settlement: mandatory to inform registrar of settlement & confirm writing 272
7. Conferences (R. 50): opportunities for issues in a proceeding to be settled without a hearing 272
o Pre-trial conferences: meet with judicial officer before trial to obtain views on case 273
o Timing: Set within 180 days that action is set for trial
o Materials to be Filed: File pre-trial briefs at least 5 days before pre-trial conference
o Mandatory Attendance: Lawyers appear & unless judge / associate judge order otherwise parties
attend
o Conduct: Pre-trial judge will express an opinion on likely outcome of various issues 273
 Matters to be considered: possibility of settlement, amount of damages, question of liability
 Confidential: Judge wont be at trial/hearing unless all parties consent in writing
 Powers: Can make any orders deemed necessary (e.g. expedited trial) 274
 If don’t settle at conference, set timetable and fix trial date going forward
 Pre-trial conference report (steps completed before action, time required, etc.) 274
o Practice Directions: Commercial List Practice Direction: i.e 5 days before pre-trial need to give pre-
trial brief
o Case Conferences for actions and applications (50.13)
o Shall be held by teleconference unless the court specifies a different method
o During action/application judge can direct case conference be held before (associate)judge
8. Admissions (R. 51)
o Request to admit: Parties serve a request to admit on another party; limits issues at trial or hearing
o Effect of request to admit: party on whom request served = respond within 20 days and if don’t respond =
deemed to admit truth of facts 275
o Withdrawal of admission: an admission can be withdrawn with consent or leave
o Order based on admission: can bring motion for judgement as a result of admissions
9. Simplified Procedure – R. 76: Specific provisions governing actions commenced under simplified procedures 276
Chapter 31: Preparing for trial: marshaling evidence

1. Overview: review legal issues, identify material facts and gather necessary evidence
2. Witnesses: need to decide which witnesses to call at trial. Lawyer needs to know what the witness wil testify
Simplified Procedure: Must include list of people who might have knowledge of matter in issue in affidavit 277
Statements: get complete statement from witnesses (preferably in writing)
o Contact: Can’t contact witness represented by another lawyer; disclose to witness your interest in litigation
o Questioning: Lawyer should interview witnesses separately and should not ask leading questions
o Content: statement should be taken down as precise as possible 278
o Verification: witness should verify/correct the statement after its taken (also to sign it).
o Assessment: all statements should be assessed and analyzed in light of each other (inconsistencies)
Experts: consider whether expert opinion necessary 278
o Service of Expert Report: if calling expert = must serve report signed by expert 90 days+ before pre-trial
o Prepare expert: prepare them for examination and cross-examination, review report with them
o Other expert reports: expert can help point out frailties in other reports 279
o Attendance and Fee: arrange experts attendance at trial & authorization from client re expert fees
Choice of witness: credibility, experience, effectiveness, knowledge, etc.
Taking evidence before trial: can take evidence of a witness before trial with leave of court/consent of parties 279
o Outside Ontario: order shall provide commission and letter of request
o Evidence not discovery: evidence taken before trial is not a form of discovery
o Use of evidence: can use evidence at trial (unless they a party in the trial in which case need leave)
o Rules of evidence apply: may not be used at trial if valid objections to it
o Affidavit evidence: order allowing evidence of a witness to be given by affidavit 280
Order of witnesses: Plan order of calling witnesses carefully so that the evidence to be adduced in an effective way 280
o Party as first witness: often, first one will be the party themselves (most involvement in facts)
o Strong finish: have strong witness at end so case ends off on a positive note 280
Failure to call witness or party: court can draw adverse inference from failure of witness to testify
Re-interview: re-interview witness before trial to prepare them to give evidence at trial
o Weak evidence: inform them of weaknesses and given opportunity to clarify evidence
o Acknowledge discussion: witness may be asked whether they discussed evidence with lawyer pre trial 280
Instruction to witnesses
o Dress, Speaking Voice, No Memorization, Review Exhibits & Documents 280-281
o Cross-examination: prepare them for direct and cross-exam; Guidelines for answering questions 281
o Trial Date keep them informed about possible trial dates so they ready when matter called to trial
Summons to witness (ensuring all witnesses required for trial will attend by summoning them) 281-282
o Issuance & Service (signed by registrar; must be served personally on witness) 282
o Outside Ontario: summon should be prepared and sent to other province well before trial
o Adverse Party: this is a compellable witness so can serve notice on them
o Notice of intention to call: at least 10 days before commencement of trial
Interpreter must be at arm’s length from the party and the witness on whose behalf the interpreter is translating 282
3. Admissions
o Pleading: where facts admitted, no further proof needed (look for admission in opposite party pleadings)
o Discovery Transcript: Also look for admissions in discovery transcript (can read it into evidence)
o Hearsay: otherwise admissible in discovery and can be read in as part of case
o Context: determine to what extent they should be read in as part of case 282-283
o Admissions of “adverse party”: can only use evidence of adverse party in trial. 283
o Impeachment: evidence given on discovery may be used to impeach testimony of deponent 283
o Other Sources: can also serve a request to admit
o Agreed Statement of Facts: use agreed statement of facts (interpret contract or statute) 283
4. Documentary Evidence (all other parties relevant documents through discovery)
o Privacy Legislation: meet requirements of PIPEDA
o Organization of evidence: guidelines for organizing evidence 283-284
o Brief of Documents: agree with other lawyer to submit document brief 284
o Proof of documents: proving documents, Business records, Medical reports, Telegrams, letters
o Canada Evidence Act: ensure provisions are complied with for the introduction of documentary evidence
5. Trial Brief (brief of all necessary materials for easy reference)
284-285
o Other Items (notes for opening statement, etc.), Brief of Law (for judge – statutes, regs, cases highlighted)

Chapter 32: Trial Procedure
1. Overview: aspects of the conduct of the trial
2. Preliminary Matters
Failure to Attend Trial: all fail to attend (strike action), D fails (P proves claim), P fails (D proves counterclaim) 287
Adjournment of Trial: can adjourn trial on such terms as are just
o Compelling reason, Discretion (cost $5,000 - $10,000), Notice of Motion (and an affidavit) served 287-288
Motion to amend pleadings
o Rule 26.01 (should be made well before trial), Prejudice (grant leave to amend unless prejudice result) 288
Motion regarding expert witness
o OEA 12/CEA 7: no more than 3 witnesses/no more than 5 experts may be called without leave
o Application of limits: applies to entire case but in practice leave is generally given
Motion to strike out jury notice
o On grounds that statute requires trial with no jury/notice not properly delivered (usually say “complex”)
Jury Selection
o Juries Act (100 possible jurors in Ont 18+); Ineligible Persons (cabinet ministers, lawyers, etc.) 288
o Selection (6 people selected from jury box); Challenges (4 peremptory challenges per side) 289
o Information (little information re juries; just get a list of prospective jurors from sheriff upon request)
o Guidelines (occupation, anything in common with client, income levels)
o COVID-19 pandemic: jury trials: some reasons will require more flexibility in hearing more cases virtually
Exclusion of witnesses
o Motion to exclude before any evidence has been tendered (credibility issues). 289-290
3. Evidence at Trial
o Overview: OEA, CEA, common law of evidence, R.53 all apply to evidence adduced at trial
o Evidence Act; Canada Evidence Act: 290
o Evidence Act = for civil trial and Canada Evidence Act = for civil and criminal
o Telephone/Video Conference: oral evidence/argument may be heard or conducted by phone/video
o Evidence by affidavit: discretion to allow affidavit as proof (make order before or after trial) 290
o Expert witness
o Service of expert report: must serve the report signed by expert 90 days before pre-trial
o Medical Reports (prepared by practitioners) 291
o Leave and notice regarding medical report: admissible with leave & 10+ days notice
o Evidence of practitioner: shall not give evidence unless report given 10+ days in advance 291
o Rules vs Evidence Act: if medical report contains opinion = medical & expert report
o Compelling attendance at trial
o Summons to witness: if fail to come when summoned can be apprehended in custody
o Witness in Custody: can make order for attendance of witness in custody if evidence material 291
o Calling adverse party (AP) as witness: Can cross examine AP when call AP not just examination in chief
o Evidence admissible with leave: Failure/refusal to do a thing = evidence only admissible with leave 292
o Failure to prove fact or document: can proceed with trial subject to proof of fact at a later time 292
4. Exhibits
o Marking and numbering (consecutively); Foundation; Marking document as exhibit (once witness identifies it)
o Return of exhibits: return them after judgment on requisition by lawyer who put it into evidence 292
5. Presenting Case
 Overview: Lawyer who has the onus of proof must begin
 Order of Presentation: lawyer with onus of proof begins
Opening/Closing Address: P makes opening statements then D can before P adduces evidence 293
Order determined by judge: can reverse order of presentation when burden of proof rests on D 293
 Opening Statements: succinct summary of theory of case and expected evidence in support of it
o Overview: begins with overview of events giving rise to action
o Evidence and Issues: outline of issues in case and evidence expected to be called 293
o No argument: should not be used as an opportunity for argument
 Examination in chief (lawyer opportunity to present crucial evidence through witnesses) 294
o Leading Questions: q’s shouldn’t suggest an answer
o Anticipating cross-examination: deal with damaging evidence in chief (minimizes impact)
o Omission: if witness omits, can lead witness at risk of objection 294
Past Recollection Recorded; Present memory revived- refresh memory by looking at written
instrument, notes made at time
o Prior Inconsistent Statement: Evidence Act: OEA on basis of “adversity”; Meaning of adverse: prior
inconsistent statement; CEA: don’t need to prove adverse 295
 CEA just need to show inconsistent statement was made in writing/recorded
o Evidence of expert: The witness must be qualified by the court as an expert 295
 Cross-examination (cross examine any party adverse in interest (D cross co-d))
o Adverse Party: where party has direct pecuniary or substantial legal interest adverse 295-296
o Purpose: obtain admissions advantageous to case & discredit/contradict witness 296
o Collateral Matters: can cross-x witness on collateral matters
o Bias, Partiality, etc.: show witness’s bias or partiality
o Prior Inconsistent Statement (can be contradicted using transcript) 296
 CEA 10-11/OEA 20-21: if proving oral statement must provide circumstances when it made
 Proof: cross examiner must prove that the statement was made
o Conviction: can ask witness if convicted of previous crime
o Guidelines: want to build a case step by step 297
o Harassment of witness: judges protect witnesses who are being harassed 297
o Listen (listen carefully before moving on), Watch (watch to see if witness may be lying)
o Substantial Points don’t need to challenge every single aspect; start strong/end strong 297
o Expert witnesses: show their flaws and why your expert should be preferred
 Re-examination (after cross, re-examine to restore previous testimony and rehabilitate credibility) 297
o Scope of re-examination: only q’s regarding what was asked on cross-x (otherwise need leave) 297
o Re-examination after cross-examination (right after cross-x has concluded) 298
o Pitfalls: witness not prepared for this so can repeat damaging evidence; be careful
 Objections (must be made instantaneously – before answer to the q is given and damage is done)
o How to Object: stand up and announce to court – state basis for objection
o Excusing Jury or witness: consider whether jury/witness excluded when going to argue
o Common Objections: irrelevant answer, privileged info, leading, etc. 298-299
o Response to an objection: if judge asks questioner = demonstrate why your q appropriate 299
 Allow objection (sustain): Lawyer rephrase q or move on
 Overrule objection: lawyer continues with questioning
 Motions for non-suit: defendant believes that the plaintiff has failed to establish a prima facie case
 Reply Revidence: plaintiff may call reply evidence where the defence raised some new matter
 Closing Arguments (Final persuasion before case closes)
o Presentation: present in a logical and compelling manner (draw all evidence together) 299
o Points of law: develop points of law & conclusions that follow when applied to facts
o Approach: as crisp and pointed as possible 299-300
o Questions: decide whether to answer q’s from bench immediately or later on 300
o Delivery: style, clarity, pace, directly address judge
o Simplified Procedure: evidence in chief by affidavit; court decides case at end of hearing 300
Chapter 33: Judgments, Orders, Appeals, Enforcements, and Cost

1. Judgments and Order
 Judgment: a kind of order given at the end of a proceeding – final matters (1 per action) 301
 Order: pronouncement or adjudication on an issue between or among parties
Endorsement & Reasons
 Must endorse every order made (on appeal book, compendium, notice of motion, etc.)
 Endorsement may consist of a reference to the reasons 301-302
Retrospective orders
 Make an order with retrospective effects (“now for then”) e.g. service of document deemed proper 302
Final and interlocutory orders: see list
 Final: If order finally disposes of entire claim or important issue in dispute between the parties
 Interlocutory: If the order does not dispose of entire claim/important issue, it is interlocutory
 Interlocutory motion can result in final or interlocutory order (look to character of the order & effect) 302
Final and interlocutory judgments
 Generally a judgment is final (exception: judgment directing reference) 303
Drafting, Settling & Signing orders
 Once order made, must be drafted, signed, entered by registrar 303
 Order drafted by successful party and given to unsuccessful party
 If Registrar not satisfied with form of order, will return order & it’ll be revised/taken to judge 304
 Issued = order is signed
Entry of Orders
 Every order must be entered by the registrar in the office in which the action/application was commenced 304
Amending, setting aside, or varying orders
 Amend order any time before it is issued (can reconsider and even withdraw order made) 304
 On a motion, Court can vary order by permitting re-argument before formal order is issued
 After order issued, (associate) judge has no power to make any changes except in particular instances 304-305
Interest on Orders
 Prejudgment (date cause of action arose to date of order), Post judgment interest (accrual) 305
2. Appeals
 Scope of Appeals under CJA: practice directions govern procedure on appeals 305
o Court can make order that could have been made below; order new trial; make order that is just
o Court can draw inferences of fact from the evidence; direct a reference or trial of an issue
 Leave to Appeal
o (i) where order to be appealed made on parties’ consent (ii) appeal only as to costs that are in
discretion of the court that made the costs order 306
 Appellate – forum: (Court of Appeal, Superior Court, Divisional Court)
o Forum depends on (i) identity of court that made order appealed from
o (ii) whether order appealed from was interlocutory or final (iii) amount in issue
o Final orders: appealable to CoA if amount involved exceeds $50,000 otherwise div court 306
o Interlocutory Orders: all interlocutory orders are heard by the div court with leave 307
o Order of Divisional Court: appeal may go to CoA from an order of the div court if not fact alone
 Timing of Appeals where leave required 307
o Notice of motion for leave served within 15 days after making order from which leave sought
o Where leave granted, notice of appeal delivered within 7 days after granting of leave
 Filing Requirements: very detailed and in accordance with Rules and practice directions 307
 Statutory appeal routes: must be aware of provisions with different appeal routes 307-308
 Stay pending appeal: delivery of notice of appeal stays any provision of order for payment of money 308
 Dismissal for delay: appeal will be dismissed unless perfected within 10 dats after service of notice
3. Enforcement of Orders
 Introduction: primary mechanisms for enforcement - writ of seizure and sale and garnishment
 Writ of Seizure and Sale: file requisition with registrar of court after judgment obtained
o Once sheriff gets it, binds all real/personal property owed to judgment debtor 309
 Debtor’s interest in assets: only the debtor’s interest in the assets is bound by the writ
 Examinations in aid of execution: judgment creditor can examine debtor re their means of repaying 309
 Procedures for sale:
o Real Property: notice of time and place sent to debtor/creditor and published in Gazette at least 30
days before sale 310
o Personal Property: notice of time & place mailed to sheriff 10 days prior and published in newspaper
 Garnishment: judgment creditor garnishes debts payable to debtor by other persons 310-311
 Exemptions from Execution: Execution Act exempts certain personal property from seizure 311
 Distribution of Recoveries: Distributed among all creditors who filed executions & proved claims 311
4. Costs
 Courts of Justice Act (s. 131): Costs in discretion of the court
 Basic Principles of Costs: “costs follow the cause” a.k.a successful party entitled to collect, PI/SI scale 312
 Factors in Court’s Discretion: r. 57 factors; costs must be fixed; should provide cost outline 313
 Liability of lawyers for costs: for lawyers delay, negligence, or other default 314
 Assessment of Costs: By assessment officer (when costs not fixed by court) – file bill of costs & order 314
 Security for Costs: direct party to post security for costs during proceeding so funds available 314-315
o D can make a motion of an order for security of costs
Chapter 34: ADR, case management, mandatory mediation

1. Introduction: overview of procedures, other than litigation, that are available to settle disputes
2. Alternative Dispute Resolution: settling by means other than traditional litigation and court adjudication
 Background: Speed, Decision Maker, Privacy, Cost, Mutually advantageous decision, Preserving Relationship
 Techniques of alternative dispute resolution
 Arbitration: submit dispute to neutral 3rd party (decision can be binding)
o Jurisdiction: Arbitration Act sets out limits on rights of courts to intervene 318
o Procedural Issues: Provisions of Act that parties cannot contract out of. 318-319
o Substantive Issues: Can use experts as decision makers; challenging arbitrator decision 320
 Statutory Arbitration: provincial statutes provide for arbitration and prescribe manner to happen
 Mediation: informal process; neutral 3rd party (no authority to impose solution) 320
3. Rule 24.1 and Mandatory Mediation (civil & non-family actions in Ottawa, Toronto, Essex)
 Background: (i) Mandatory in Specified Actions; (ii) take place within 180 days of defence filed 321
 Scope of 24.1: applies to actions pre-2010 and those in Ottawa, Toronto, Essex post 2010
 Timing of Mediation: applies only to defended actions (hence within 180 days defence filed). 321
 Selecting a Mediator: choose from roster unless consent to particular one not on roster 321-322
 Procedure under R 24.1: deliver statement of issues to other party 7+ days in advance. 322-323
o If parties fail to attend/no statement then assigned to associate Judge or Judge (case conference)
4. Mediation examined in more depth
 Introduction: meditation has becomes a prominent part of the civil litigation process
 Voluntary Mediation: the mediation agreement: Agree to mediate (written agreement) & select mediator,
confidentiality 323
 Statutory Mediation: Several provincial statutes provide for mediation (in some you required to mediate) 323
 Mediation Procedure: Mediator opening statement; opening statements; problem-solving phase 323-324
o Caucus; agreements should be in writing
 Role of Mediator: do not predict outcome or provide expert evaluation = want mutual agreement 324-325
 Negotiation Theory: 325
o Co-operative (win-win); underlying needs – ideal in Family context because maintains relationships
o Competitive (win-lose); Personal Injury – maximize benefits for client; positional bargaining
o “Litigotiation”: Litigation is your best alternative (BATNA) when negotiating 326
o Risk Assessment: Expected Monetary Value … % chance of $ value – probability
 Lawyer as Mediator: ensure parties understand role & that you not acting as lawyer for either party 327
o Encourage parties to seek independent legal advice (especially to review contract)
Chapter 35: Simplified Procedure Rule 76

1. Introduction: reduce costs of litigating modest claims by decreasomg number and complexity of litigation steps
2. Overview
 Mandatory for all actions for money or property worth $200,000 or less
 P can chose to proceed over $200,000 if D don’t object; even if D objects proceed if claims not withing
$200,000 are abandoned; cost consequences if proceed under ordinary when should not have
 No written examination for discovery, cross-x, etc. (3 hour oral examination limit) 329
3. Availability
 Mandatory (r. 76.02): Claim for less than $200,000 for money/real property/personal property
 Optional (r. 76.02(3)): if $200,000 it is optional; can proceed if D objects but give up value over 200k 330
 Multiple Plaintiffs: required where each P’s claim under 200k; if 1 over 200k = ordinary procedure
 Counter/Cross/3rd party Claims: if don’t comply, main action still proceeds under simp procedure 330-331
 Amending into/out of Simplified Procedure: when amending from one to other provide notice 331
o From Ordinary  Simplified you paying substantial indemnity (SI) to date of amendment
4. Affidavit of Documents (r. 76.03): Must serve affidavit within 10 days of close of pleadings 331
5. Limited Discovery and no cross-examination (r. 76.04): Limited scope of oral examination
 No examination for discovery on written q’s, cross-x, examination of witness under a motion 331-332
6. Motions (r. 76.05): all motions heard in county where proceeding commenced 332
7. Settlement discussion & documentary disclosure (r. 76.08): parties required to consider settlement
8. Expert affidavits: if a party is intending to call an expert at trial, must comply with requirements r. 53.03
9. Setting action down for trial or summary trial under simplified procedure (r. 76.09): serve notice of readiness
on every party to action 332
10. Pre-trial conference (r. 76.10): The parties shall schedule a pre-trial conference within 180 days after the action is
set down for trial
 The parties shall agree to a trial management plan 30 days before the pre-trial conference
11. Trial (r. 76.12): will be a maximum of 5 days. (See steps) 333
12. Costs under R. 76
 Costs where judgment does not exceed $200,000: might be ordered to pay all or part of D’s costs SI scale 333
 Costs if D unjustifiably objects: D pay P’s costs not incurred if action reminder under simp proc on SI scale
 Counterclaims, Crossclaims, 3rd Party Claims: cost consequences of r. 76.13 apply
 Quantum of costs in R. 76 cases: cost awards lower than those under ordinary procedure
o Maximum cost recoverable in simplified procedure $50,000 and $25,000 for disbursements 334
13. Special Rules for Ottawa, Toronto, County of Essex
 all R. 76 actions post Jan. 1 2010 = mandatory med for Ottawa, Toronto and the County of Essex (Windsor)

2023 2024 Civil Litigation Summary Final LLFLQV

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2023 2024 Civil Litigation Summary Final LLFLQV

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This summary was last updated in May 2023.

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Chapter 17: The Lawyer-Client Relationship

Chapter 18: Privacy Issues and Litigation

Chapter 19: Preliminary Matters before commencing proceedings

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Chapter 20: Parties: Persons who can sue and be sued

Chapter 21: Joinder and Interventions

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Chapter 22: Commencement of proceedings

Chapter 24: Service of Process

Chapter 26: Disposition without trial

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Chapter 28: Motions (proceeding within a proceeding)

Chapter 29: Discovery (R. 30 & 31)

Chapter 30: Offers to settle and pre-trial procedures

Chapter 31: Preparing for trial: marshaling evidence

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Chapter 33: Judgments, Orders, Appeals, Enforcements, and Cost

Chapter 34: ADR, case management, mandatory mediation

Chapter 35: Simplified Procedure Rule 76

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