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Litigation 1
Canadian Civil Litigation
| Question | Answer |
|---|---|
| Originating Application | Made when the facts are not in dispute and there are no other interested parties to the proceeding and therefore no notice of the proceedings needs to be given to anyone else. |
| Examples of when an Originating Application would occur. | Foreclosures, applications under the Name Act to change your name, applications under the Variations of Trusts Act to have a trust varied. |
| Two steps to make an originating application | 1. Petition to the Court OR an Originating Requisition 2. Hearing ~ 28 days. |
| Originating Document | A generic term that refers to an NoCC, Petition to the Court OR Originating Requisition. |
| An action is commenced when... | the facts are in dispute |
| Parties are call this in an Originating Application | Petitioner and Respondent |
| s 1(1) Court Order Interest Act | A court must add to a pecuniary judgment an amount of interest calculated on the amount ordered to be paid at a rate the court considers appropriate in the circumstances from the date on which the cause of action arose to the date of the order |
| s 7(2) Court Order Interest Act | A pecuniary judgment bears simple interest from the later of the date the judgment is pronounced or the date money is payable under the judgment. |
| Prejudgment Interest | Section 1 requires the court to add prejudgment interest o a pecuniary judgment from the date on which the cause of action arose to the date of the order. |
| Postjudgment Interest | s7 provides that money judgments will bear interest at an annual rate that is equal to the prime lending rate of the banker to the gvmt of Canada. The governing rates will be set on Jan 1 & Jul 1 of each year and will prevail for the ensuing 6 months |
| Calculating Time: Under 7 days | When a time limit is less than 7 days, DO NOT count holidays (note that Sunday is considered to be a holiday. Saturday is not). |
| Clear Days | "at least" or "not less than" a certain number of days. You do not count the first or last day. Two clear days from Monday the 1st is Thursday the 4th (two circles). |
| Clear Months | Calculate from a specific day in one month to the day numerically corresponding i the appropriate month, PLUS A DAY. Four clear months from March 12 is July 13. |
| Rule 3-3(3) Time For Filing a Response to Civil Claim | In Canada: 21 days; In the US: 35 days; and Internationally; 49 days |
| Consent to Act as Litigation Guardian | used to show that an adult person consents to act as the litigation guardian for a legally disables person in a proceeding. |
| Litigation Guardian's - Lawyers must be involved unless... | Unless the litigation guardian is the PG&T |
| Certificate of Fitness | the lawyer uses this form to provide specific certifications before acting for a person under legal disability. |
| Legally Disabled Person | Infant or mentally incompetent person |
| Rule 4-2 Ordinary - how to serve documents | Deemed to be served if: leaving the document at the persons address for service; mailing the document by ordinary mail to the person's address; faxing to that person's fax number with a fax cover sheet; e-mailing the document to that person's e-mail. |
| Rule 4-2 Ordinary Service - service deemed to be completed when | If the document us left at the address for service at or before 4:00 p.m. on a day that is not a Saturday or holiday. If the document is left after 4:00 p.m. or on a Saturday or holiday, it is deemed to be served on the next day that's not sat or holiday. |
| Rule 22-6 Change of Lawyer | Notice of Appointment or Change of Lawyer - a document filed and served on all parties of record and on any lawyer being replaced. |
| Notice of Intention to Act in Person | Used by a PARTY to act personally in a proceeding (i.e. no longer wants to be represented by a lawyer). |
| Notice of Intention to Withdraw as Lawyer | Used to inform the client that the lawyer intends to cease to act for a party. Removing as the "lawyer of record". Served on the client first then served on all parties. 7 days for objection or new lawyer prepare Notice of Appt or change of lawyer. |
| Objection | Used by the client or the opposing lawyer to object to the client's lawyer's Notice of Intention to Withdraw. |
| Notice of Withdrawal of Lawyer | Used by a lawyer to withdraw as "lawyer of record" for a party, where that lawyer has served a Notice of Intention to Withdraw as Lawyer and the client and opposing lawyer have not within 7 days objected, Notice 2 Act in pers or Notice of Change of lawyer |
| Notice of Address for Service | Used by a party of record to officially change his or her address for service - usually if the address for service on the NOCC or RTCC has changed . Must be filed by a person who becomes a party in substitution for a former party by court order. |
| Rule 3-8 Default Judgment | The Plaintiff may proceed against a Defendant if that Defendant has not filed and served a Response to Civil Claim AND the time for doing so has expired. |
| A Plaintiff who wishes to proceed against a defendant for Default Judgment under Rule 3-8 must file: | 1. Proof of Service of the NOCC of that Def (Affidavit of Personal Service) 2. Requisition endorsed by a Registrar that no RTCC has been filed. 3. Proof that the Defendant has failed to SERVE a RTCC (Affidavit). and 4. A draft Default Judgment Order |
| In an action for damages, the court will not grant a final default judgment until: | Damages have been assessed by the court. |
| General purpose of pleadings: | 1. To define the issues on which the court must adjudicate in order to determine the matters in dispute between the parties. 2. To give fair notice to the other side of the case that has to be met. |
| Pleadings must not contain: | Evidence which the facts are alleged in it to be proved. |
| Particulars | Need only be pleaded to the extent that they are known at the date of the pleading. further particulars may be served after they become known and must be served within 10 days after a demand is made in writing. |
| Demand for Particulars | Must be demanded in writing from the other party before applying to the court for particulars. |
| Counterclaim | Used by the defendant to make a claim against the plaintiff and/or a person who is not already a party to the action |
| Time to File and Serve a Counterclaim | 1. Canada - 21 days 2. US - 35 days 3. Internationally - 49 days |
| Counterclaim against new defendant = Third Party Claim | Must be personally served a copy of the filed counterclaim; and a copy of the filed Notice of Civil Claim within 60 days after the date on which the Counterclaim was filed. |
| *Counterclaim Rule 3-4(3) Identification of Parties | plaintiff stays plaintiff, defendant stays defendant, and any NEW person against whom the counterclaim is brought must be identified as a "DEFENDANT BY WAY OF COUNTERCLAIM" |
| Counterclaim must: | set out a claim against ta plaintiff. A claim against only a third party is not a counterclaim. |
| Reply (Rule 3-6) | OPTIONAL Pleading to be filed by Plaintiff. A plaintiff MAY within 7 days after the RTCC has been served, file and serve on all parties of records a reply in Form 7. |
| 3-6 Reply Case law - Certus Strategies (BC) Corp v ICBC | A reply must be responsive to the RTCC and should not repeat, amend or clarify allegations contained in the NOCC or raise a new cause of action. |
| Case Planning Conferences | Can be initiated by any party or on direction of the court once the pleading period has expired by filing a Notice of Case Planning Conference. Optional. To be conducted by a Judge or Master |
| Third Party Proceeding | Filed within 42 days of being served with the Notice of Civil Claim or counterclaim. The third party notice, together with a copy of all pleadings to date must be served on the TP. the TP must then file a Response to Third Party Notice. |
| Pre-judgment interest only applies to: | pecuniary/special damages and is only paid on such items from the date an action was commenced to the date of the judgment. |
| Post-judgment interest only applies to : | non-pecuniary damages and starts from the date of the monetary judgment to the date it is paid by the defendant. |
| Amending a Pleading: Purpose | Used to officially change the working of a pleading after it has been filed in the court registry. i.e. NOCC or RTCC. |
| Alexis v Durey (2013), 49 CPC (7th) 352 (Amending a Pleading) | Before service on any party, pleadings may be amended to add a party without making an application under Rule 6-2(7). |
| An amendment that adds, removes or substitutes a party cannot be made without a court order (in which case, te proposed amended pleading would be attached to:...) | A Notice of Application |
| An amendment that withdraws an admission cannot be made without: | Consent of all other parties of record or a Court Order. |
| A party may amend a pleading: | (1) Once without a court order at any time before service of the Notice of Trial (2) Any time after the Notice of Trial is served with the written consent of the other parties of record (3) Any time after the Notice of Trial is served with a Court Order |
| Service of an Amended Pleading | within 7 days of filing by ordinary service |
| Service of an Amended Originating Pleading | Promptly after filing by personal service (to those who have not responded to an original pleading or were not an original party of record). |
| If a party on whom an amended pleading is served does not serve an amended responding pleading, he or she is deemed to rely upon the pleading he or she filed to the original version of the amended pleading. Any new facts set out in the amended pleading... | Are deemed to be outside the knowledge of the defendant |
| When amending pleadings, any deleted words are | struck out |
| When amending pleadings, any added words are | underlined in red |
| Rule 7-1 Discovery and Inspection of Documents (List of Documents) | Part 1 - Purpose to list all (and only) documents that are or have been in the listing party's possession or control and that could e used by any party at trial to prove or disprove a material fact. |
| The trend in our Courts is to give | Full Disclosure |
| Only two grounds for privilege of the documents would be: | (1) Public Policy - production of the document(s) would be detrimental to the public as a whole; and (2) Documents obtained or prepared for the DOMINANT PURPOSE of anticipated/contemplated OR actual litigation. |
| Rule 7-1 - Each party has 35 Days after the expiration of the pleadings period to serve a: | List of Documents (Form 22) which is comprised of four parts |
| Rule 7-3 Discovery by Interrogatories | A party of record MAY serve Interrogatories in Form 24 on any other party of record IF that party consents or the court grants leave. |
| The Party to whom the interrogatories are directed must serve an: | Affidavit in Answer to Interrogatories |
| The Affidavit in Answer to Interrogatories must be served within ___ days. | 21 days |
| Rule 7-5 Pre-Trial Examination of Witness: | This rule governs the discover of a person who is NOT a party to the action, such as a witness. |
| Rule 7-5 Pre-Trial Examination of Witness: Experts | An expert retained in anticipation of litigation or preparation for trial may not be examined under this Rule UNLESS the party seeking the examination is unable to obtain facts and opinions from the expert by other means |
| Expert Examination example | If the expert will be out of town during trial, a party may conduct a video deposition before the trial. |
| A party entitled to examine a person under Rule 7-5 MAY require | That witness bring any material documents or objects to the examination by PERSONALLY SERVING A SUBPOENA TO WITNESS |
| All witnesses who are to be examined who require a Subpoena to Witness are to be served at least* | 7 days before the examination period. |
| Rule 7-5 Pre-Trial Examination of Witnesses by all parties of record must NOT in total exceed... | 3 hours in duration. |
| Rule 7-6 Physical Examination and Inspection | If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person (IME's and subsequent IME's) Expenses and reports expected. |
| Rule 7-6 Physical Examination and Inspection - The medical practitioner may... | Ask any RELEVANT questions concerning the HISTORY or MEDICAL CONDITION of the person being examined. |
| Rule 11-6 (3) Requirement to serve the opposing party with the resport must be... | At least 84 days before trial. Any responding reports must be served at least 42 days before trial. |
| Rule 7-2 Examinations for Discovery - An EFD is a procedure whereby the lawyer for one party examines another PARTY who is... | Adverse in interest about the case. |
| EFD's are held in order to: | 1. Learn the case from the other party's point of view 2. obtain admissions to help your party's case and destroy the other party's case 3. obtain the names and addresses of other witnesses. |
| Appointment to Examine for Discovery Form ___ Used to confirm _____, ______, and _______. | Form 23, used to confirm the date, time and location of the discovery. |
| This is served together with the Appointment to Examine for Disovery | Conduct Money a.k.a. witness fees |
| Appointment and Conduct Money to be served ___ days before the discovery date. | 7 days - ordinary service if party is represented. 7 days - personal service is party is unrepresented. |
| EFD's: Supreme Court Civil Rules 22(7) and 22(8) must... | Be printed on the back of the appointment to examine for discovery. |
| Fees Payable to Witness (not parties) | (1) $20 per day to attendance (2) 8-200 km = $0.30/km (incl. ferry & tolls), or > 200 km = min return airfare + $0.30/km to/from airport. (3) Reasonable meal expenses and overnight accommodations. (4) sum for time employed and expenses incurred. |
| It is common practice for parties to do this when plaintiff counsel is examining the defendant and defense counsel is examining the plaintiff. | "waive" the necessity of exchanging witness fees. |
| Because parties have the right to condct an EFD on an adverse party only once without a court order "one kick at the can", lawyers have learned not to conclude EFDs, but rather to... | Adjourn EFD's. This way they could come back to complete the total 7 hours if necessary. |
| Rule 7-7 Admissions (Notices to Admit) | Purpose is to request that another party admit certain facts (and/or the authenticity of certain documents) relating to the action - the underlying purpose is to simplify the proceeding by separating the facts which ARE NOT at issue from those which are. |
| Rule 12-1 Notice of Trial | Prepared and filed by any party (usually the plaintiff) and then promptly served on all parties of record. |
| Court Registry Fee for filing a Notice of Trial | $200.00 |
| If a party on whom a Notice of Trial is served objects to the trial date set out in the Notice of Trial, the party MUST: | Within 21 days after receipt of the Notice of Trial request a CPC OR apply to the court to have the trial rescheduled. |
| When booking trial by telephone, it is common practice that you file your notice of trial within... | 30 days of reserving your date with the registry. |
| If a trial has been set for hearing is reset for hearing on a new trial date then... | A NEW NOTICE OF TRIAL must be filed, unless otherwise ordered by the court (rather than by Requisition) |
| A Trial Certificate and Trial record MUST be filed... | Not more than 28 days and not less than 14 days before the trial date. |
| Rule 15-1 Fast Track Actions | Must be without a jury If applied withing 4 months of Fast Tract becoming applicable, the Registrar must set a trial date that is not later than 4 months after the application for the trial. |
| Notice to Mediate (MVA) | May be served no earlier than 60 days after the end of the pleading period and no later than 77 days before trial. Mediators chosen within 10 days of receiving notice to mediate. Only one mediation per mva. |
| Once a mediator has been appointment, mediation must occur within... | 60 days |
| Mediation must take place at least ___ days before trial | 7 days |
Created by:
carehun
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