This Week at the Ontario Court of Appeal: 11-10-14

Each Week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

Ireland v. Ireland

This case involved a mother's resistance to the enforcement of a foreign custody order. The Superior Court of Fulton Country in the State of Georgia granted sole legal custody of the parties' children to the respondent father. The appellant failed to attend the Georgia Court but she was given an opportunity to participate via Skype. However, Tuscon J. stated that the appellant neglected to locate a computer to access Skype.  As a result,  she failed to present any evidence establishing that awarding her sole legal and physical custody of her children would be in their best interests.

The following month, the appellant filed an application in the Ontario Superior Court of Justice for custody of the parties' children, child support and a restraining order.  Her position was that the children would suffer serious harm if they were returned to the respondent because they had allegedly previously been subject to physical and emotional abuse during the parties' relationship. The respondent moved to have the order of Tuscon J. of the Georgia Court recognized and enforced in Ontario pursuant to s.41 of the Children's Law Reform Act. The appellant applied for and was granted an adjournment on March 24, 2011 until April 7, 2011, to the motion in order to give her time to retain counsel. During the intervening period, the appellant applied to the Superior Court for another adjournment on the basis that she wanted to change the venue of the hearing from Oshawa to Toronto, which was rejected by the court. 

The motion proceeded on April 7, 2011 and Ferguson J. enforced the Georgia Court's order. The mother was ordered to surrender the parties' children to the father. The mother subsequently appealed Ferguson J.'s enforcement of the Georgia Court's order and her decision not to allow her to present viva voce evidence during the aforementioned motion.

The Court denied the appellant's request for an order that she be permitted to request various organizations to provide her with copies of all documents relating to her, the respondent, or their children. The Court noted that the appellant failed to request the documents at the appropriate stage in the proceeding and her litigation tactics unnecessarily expanded and slowed the proceedings. Moreover, if the Court permitted the documents, the appellant would have to make a fresh evidence application to have them admitted on the appeal.  The Court held that the documents would not meet the test for the introduction of fresh evidence on appeal, set out in R v Palmer.

The Court granted the respondent's motion for security of costs and ordered the appellant to pay the respondent $10,000.00 in costs, holding that her appeal was devoid of any merit and noting her pattern of delaying and expanding litigation.

Canadian Broadcasting Corporation v. Ontario

The Canadian Broadcasting Corporation ("CBC") had applied to the Superior Court for an order granting it access to a video that was entered as an exhibit at the 2008 bail hearing of the appellant Ishak Omar.  The Ontario Court of Justice had custody of the video. The application judge granted CBC access to the video on the condition that it would obscure Mr. Omar's identity in any subsequent use of the video. Mr. Omar appealed the order.

The CBC moved to quash the appeal on the basis that the Court had no jurisdiction and that Mr. Omar's appeal is to the Supreme Court of Canada with leave from that court pursuant to the Supreme Court Act. The appellant submitted that the appropriate forum for this appeal was the Ontario Court of appeal under s.6(1) of the Courts of Justice Act.

The Court dismissed the respondent's motion to quash the appeal. The Court's jurisdiction to hear the appeal turned on the characterization of the proceedings before the application judge. If the appeal was civil in nature then the Court of Appeal has proper jurisdiction.  However, if the proceeding was characterized as criminal, the appellant's only route is to the Supreme Court of Canada with leave of that court. Counsel for the respondents argued that the video came into possession of the Ontario Court of Justice in the course of a criminal proceeding and that this application was treated as a criminal matter in the Superior Court.  The appellant characterized the proceedings as civil, as the CBC sought access to his property. In rejecting the respondent's arguments, the Court noted that that the order under appeal was not made in the course of a criminal proceeding and had no effect on any ongoing criminal proceeding. Moreover, the Court stated that the appellant's fair trial rights were no longer at play and that the order under appeal did not rescind or vary any order made in the appellant's criminal proceedings which concluded in 2009.  Therefore, the Court concluded that the appeal was properly brought to the Court of Appeal pursuant to s. 6(1) of the Courts Justice Act.

Donley Investments Limited v. Canril Corporation

The appellants, Canril Corporation, appealed a judgment of the Superior Court of Justice holding it liable in negligence and nuisance for water damage caused to the neighbouring basement of the respondent Donley Investments Limited.  The appellants submitted that the trial judge erred both law and in fact.  The Court agreed with the appellant's position and set aside the trial judgment and ordered a new trial.

The Court of Appeal held that the trial judge made three significant legal errors. The first  occurred when the trial judge erroneously shifted the burden of proof onto the plaintiffs to rebut the presumption of negligence when in fact there was no scientific confirmation of causation that water flowed from the appellants' building to the respondent's premises.

The Court found that the  trial judge made a further, substantial legal error when she held that the appellants had owed a duty to the respondents to join them in their claim against the City for the water infiltration that occurred in February 2003. Both the appellants and respondents' buildings were infiltrated with water as a result of an open city water main. The appellants made a claim against the City for the damage to their basement and suggested that the respondent follow suit.  The respondent failed to adhere to the appellant's request.  The Court stated that they did not see any legal basis for the trial judge's imposition of a duty to assert its claim.

Additionally, the appeal court ruled that  the trial judge erred in her causation analysis. There was no scientific evidence establishing a causal link between the damage to the respondent's building and any wrong committed by the appellants.  The trial judge made no reference to the "but for" test for causation in her reasons for judgment. Instead, the trial judge applied a more lenient test for causation applied in Athey v. Leonati. The Court asserted that the trial judge's omission in applying the standard "but for" test for causation was not justified.

- Alim Ramji, Toronto

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Ontario Employment Law: Parallel Jurisdiction of the Ontario Human Rights Tribunal and Courts in Dismissal and Discrimination Claims

In a recent case, Salvador v. Genpak LP, an applicant made an application to the Ontario Human Rights Tribunal alleging discrimination in employment on the ground of disability. The respondent employer opposed this application on procedural grounds, aruing that the application should be dismissed since the applicant had already had a parallel civil claim in that he had already filed a Statement of Claim against it in Small Claims Court alleging that he had been wrongfully dismissed.

Section 34(11) of the Ontario Human Rights Code, upon which the employer relied, states:

34 (11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled. 2006, c. 30, s. 5.

The respondent employer essentially argued that because the Small Claims action dealt with the same set of facts as the application before the Tribunal, section 34(11) required dismissal of the Code application.

The Tribunal found that this factual overlap alone was not enough to oust its jurisdiction in this case:

Having reviewed the Application and the Statement of Claim, I find that the applicant has not triggered section 34(11) because he has not raised the Code in his civil action. Similarity in the facts does not amount to duplication of legal issues. The determinative factor in this decision is that the Claim makes no mention of the Code or of any allegations of discrimination. Duplication of legal proceedings arising out of the same facts is not a basis for declining jurisdiction over an Application: see Baker v. Sears Canada, 2009 HRTO 1014 (CanLII), 2009 HRTO 1014 (CanLII), at para. 12:

The fact that the case could potentially have been commenced as a single court action alleging both wrongful dismissal and discrimination is a matter of personal choice the legislature has left up to individuals bringing such cases. It is not within the Tribunal’sjurisdiction or mandate to instruct parties where to bring their cases. The Tribunal’s function is to determine whether it has the jurisdiction to accept the Application as filed. In this case, I find the Tribunal does have jurisdiction over the matter.

If you have been wrongfully dismissed or discriminated against, contact a lawyer to be advised as to your legal rights and entitlements.

- Robert Tanha, Toronto

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This Week In The Ontario Court of Appeal: 10-11-19

Each week at Wise Law Blog, we review recent decisions from the Ontario Court of Appeal.

R. v. C. An appeal on a set of convictions for Mr. C. which included possession of handguns and ammunition, assaults on the complainant and possession of cocaine for purpose of trafficking. Mr. C. appealed on the basis of an improperly admitted KGB statement and ineffective counsel.

The argued-to-be-improperly-admitted KGB statement was a videotaped statement from the complainant which she later retracted, claiming she was mad at Mr. C. for cheating on her, and also claiming she was high on Ecstasy when she made the statement. Mr. C. argued that the video recording did not meet the standards for a KGB statement, stating that there was no close-up view of the complainant so that the trial judge could assess her demeanour. The Court of Appeal rejected this argument, stating that the trial judge's record demonstrated that even without close-up view, the judge was able to assess the complainant's demeanour accurately.

Mr. C.'s argument of ineffective counsel was based on his trial counsel's agreement to file an Agreed Statement of Facts, which Mr. C. argued undermined evidence he had given at trial. The Court of Appeal also rejected this on the basis that Mr. C.'s behaviour at trial could generously be described as erratic and that his evidence consisted largely of a grandiose conspiracy theory. Read-the-whole-case rating: 3, mostly for the portion of the case dealing with the KGB statement, where Justice MacFarland does an excellent job discussing the issues in that area. The descriptions of Mr. C.'s behaviour are also, frankly, amusing in a grim sort of way.

R. v. Erez. An attempt by noted criminal attorney James Lockyer to conflate a number of argued procedural errors in a conviction for possession of cocaine for purpose of trafficking - none of which on their own would overturn the case - into a cumulative miscarriage of justice. The Court disagreed on all points.

The appellants' various complaints include:

An accusation of bad character evidence when the trial judge allowed the Crown to lead evidence about the accused's income from gambling, borrowing money and pawning of jewelry, which the Court found did not qualify as the trial judge did not allow the witness in question to testify about the accused's illegal gambling activities.

An accusation of bad character evidence regarding the appellant's then-current stay in jail and the fact that he had previously been on parole. The Court noted that the trial judge offered defence counsel multiple opportunities to ask for a mid-trial instruction to the jury, which were declined, and agreed with the respondent Crown's argument that defence's willingness to allow the accused's parole experience on the record was a tactical choice.

An argument that the co-defendant gave evidence in his submissions to the jury by stating that the accused "commanded" him to commit illegal acts and that he lied to the police (allowing the inference that this was to protect the accused). The court rejected this argument noting that the trial judge instructed the jury to disregard any implication made by the co-defendant. Read-the-whole-case rating: 2.5. A bunch of smaller sub-issues make for an interesting set of data points, but only to those interested in criminal law.

Duffin v. NBY Enterprises Inc.. An appeal regarding whether a motion judge unreasonably dismissed the plaintiffs' action because they were two days late in paying the cost component of an earlier court order.

This was an action regarding defaulted mortgages on property where the plaintiffs alleged that the notices of sale on the defaulted properties (which they previously owned before they defaulted on the mortgages) were defective and the resulting sales improvident. The plaintiffs sought to maintain certificates of pending litigation and to obtain interim possession and were unsuccessful. The defendants then moved to dismiss the action on grounds of delay. The plaintiffs were granted an adjournment on the motion, but over a month after the date of the adjournment had still not filed responding material.

The plaintiffs then asked for a further adjournment, after removing their lawyer as solicitor of record, in order to find new counsel. The judge granted the adjournment, but only on a set of terms, one of which was paying counsel appearing for each of the defendants $2,000 by a set date for costs thrown away. The plaintiffs would eventually satisfy all of the conditions except the timely payment of costs thrown away, paying the various counsels two days after the deadline set by the judge. The defendants asked for a motion to dismiss the action as the plaintiffs had not complied with the terms, and the motion judge agreed and dismissed the action.

The Court of Appeal overturned the motion judge's decision even though discretionary orders such as this motion are traditionally granted a high level of deference from appellate courts. They did so for three reasons. Firstly, they cited the Rules of Civil Procedure, which state that the rules "shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits." Secondly, they pointed out that the defendants would suffer no prejudice if the order was relieved against the plaintiffs' non-compliance, whereas the plaintiffs would suffer prejudice as they would not get a chance to properly argue their case. Finally, the Court pointed out that in this case the breach of terms was relatively minor. Read-the-whole-case rating: 3. Appeals of this sort are not that common and readable decisions regarding them less so.

- Christopher Bird, Toronto

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N.B. Judge Orders MVA Plaintiff to Disclose Facebook Records

CBC reports on yet another Canadian Facebook disclosure decision - this time by a New Brunswick court:

Court of Queen's Bench Justice Fred Ferguson... wrote in his decision there's a low threshold for disclosing evidence and it met the "semblance of relevance" test required when deciding if information will be turned over during discovery.

"It does so, by possibly providing a window into what physical capacity the plaintiff has to keyboard, access the internet and communicate with family friends and associates on Facebook and thus what capacity she may have to work. In that sense: 'It may lead to the discovery of admissible evidence,' the threshold required for the evidence to be produced," the judge's decision said.

"Incidentally, it must not be forgotten that this legal action was commenced by the plaintiff and in launching it she has implicitly accepted certain intrusions into what otherwise might be private information, the disclosure of which would ordinarily be left to her own personal judgment."

At some point, there must be a more considered balancing by our Courts of privacy interests and the increasingly onerous digital disclosure requirements in civil lawsuits.

One must wonder if the recent spate of Canadian rulings that have required injured Plaintiffs to disclose personally-sensitive online materials may ultimately cause a litigation chill that could have potential Plaintiffs thinking twice before commencing proceedings?

- Garry J. Wise, Toronto

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Ontario: More Family Law Change Coming Tomorrow

Canadian Press reports on procedural changes for Ontario's family law courts that will be announced tomorrow by Attorney-General Chris Bentley:

TORONTO — Ontario will announce changes to the way it deals with family law on Thursday in a bid to make the divorce process faster, cheaper and less combative, The Canadian Press has learned.

Attorney General Chris Bentley is set to unveil several changes that he said address complaints about the expense and length of divorce and custody proceedings, making the process as easy as possible for the families involved.

...Under the changes, people will have more access to legal advice from the outset, as well as to options like mediation, arbitration or collaborative law, which are much less combative than the court process.

That will also free up court time for cases that must be argued through the system, although those will now have less paperwork and fewer steps so that people can get to a judge - and a decision - sooner.

- Garry J. Wise, Toronto

Update: December 17, 2009

The Attorney-General's press release is here, and frankly, is surprisingly thin on the details of this initiative and the changes ahead. The only additional news is that the program will launch in Brampton and Milton courts, initially.

- GJW

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Alberta Court Allows Substituted Service By Facebook

Via Slaw's Shaunna Mireau:

The February 5, 2009 Order of Master Breitkreuz from Knott v. Sutherland says that the plaintiffs could substitutionally serve one of the multiple defendants by publication of a notice in the newspaper, by forwarding a copy of the statement of claim to the human resources department where the defendant (formerly) worked, and also by sending notice of the action to the Facebook profile of the defendant.

Precedent for service in civil matters via Facebook exists from Australia and New Zealand, but I am not aware of this being ordered previously in Alberta.

- Garry J. Wise, Toronto

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Levitt's Lament

Employers' lawyer Howard Levitt breaks the "bad news" to his Financial Post readers - Suing Employers Soon to Get Easier.

On Jan. 1, the most dramatic changes to the rules of court since 1985 will be implemented. These rules will disable three of the most valuable weapons in employers' litigation arsenal-- costs, complexity and delay.

The Small Claims Court jurisdiction will be raised to $25,000 from $10,000. The intent is to make legal rights accessible to workers of every strata. The incentive to pursue perceived rights will escalate in this forum, where self-representation is the norm and the costs of losing negligible.

Lawsuits from $50,000 to $100,000 will also become simpler, faster and cheaper. The Simplified Procedure... will be expanded to include claims to $100,000. Until now, these larger claims were subject to unlimited examination for discovery; the new rules restrict them to two hours.

Any lawyer can conduct a journey-man like mediation because much of the work is done by the mediator. Other than trials, which few dismissal cases reach, a lawyer's relative skill is best shown at discoveries. That is where admissions are obtained that result in settlement or make the result a foregone conclusion. Frequently, I have had employees make admissions at discovery that end their cases.

Being cross-examined for hours or days, employees who are less prepared than at trial, face having substantial doubt cast on the veracity of their facts and their principles put under tortuous scrutiny, and often end up dropping the suit or accepting a minimal settlement to avoid a trial. That ability to weaken the employee's resolve is gone under the new rules: Two hours is seldom sufficiently formidable to concede early defeat.

It is time for a new employers' playbook, apparently. What a stunning commentary and public admission as to defence tactics.

It seems the time-honoured strategy of delay, out-spend, out-maneuver and 'interrogate into submission' will have only a limited future in employment law litigation Ontario.

That kind of casts access to justice amendments in a whole new light, now doesn't it?

- Garry J. Wise, Toronto

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January 1, 2010: Ontario Small Claims Court Monetary Limit Rises to $25,000

Transferring Actions from Ontario Superior Court to Ontario Small Claims Court

As we noted in our earlier posts on this topic, on January 1, 2010 the  monetary jurisdiction of Ontario's Small Claims Courts will rise from $10,000 to $25,000. 

Suppose you have an ongoing claim for $25,000 or less in Ontario Superior Court. What will happen to your case on January 1st? 

Will it automatically be transferred to Small Claims Court?

Apparently not. 

According to the Ontario Ministry of the Attorney General, “proceedings in the Superior Court of Justice valued at less than $25,000 will not be automatically transferred to the Small Claims Court." 

Pursuant to Section 23 of the Courts of Justice Act. however, proceedings may be administratively transferred to a Small Claims Court  if all parties consent.  

Section 23 provides:

Jurisdiction

23.(1)The Small Claims Court,

(a) has jurisdiction in any action for the payment of money where the amount claimed does not

 exceed the prescribed amount exclusive of interest and costs; and

(b) has jurisdiction in any action for the recovery of possession of personal property where the value of the property does not exceed the prescribed amount. R.S.O. 1990, c. C.43, s. 23 (1).

Transfer from Superior Court of Justice

(2)An action in the Superior Court of Justice may be transferred to the Small Claims Court by the 

local registrar of the Superior Court of Justice on requisition with the consent of all parties filed before the trial commences if,

(a) the only claim is for the payment of money or the recovery of possession of personal property; and

(b) the claim is within the jurisdiction of the Small Claims Court. R.S.O. 1990, c. C.43, s. 23 (2); 1996, c. 25, s. 9 (17).

Idem

(3)An action transferred to the Small Claims Court shall be titled and continued as if it had been commenced in that court. R.S.O. 1990, c. C.43, s. 23 (3).

If the parties do not all consent, a transfer may only be effected by an order of the Superior Court of Justice upon a motion. There may be some interesting disputes on this issue.

Why might a transfer to Small Claims Court be opposed? 

A significant concern may be that the costs incurred in a Superior Court action already exceed the maximum costs that are  available in Small Claims Court, where costs awards will  remain capped at 15% of a claim's value.  In a $25,000 suit, for example, costs awards will thus be limited to $3,750. 

There may be other tactical advantages to remaining in Superior Court - a party may wish to to retain access to certain procedures that are available in Superior Court, but not in Small Claims Courts.  

For example, documentary disclosure and production entitlements in Superior Court actions are significantly broader than those in Small Claims Court.

In Superior Court actions, each party is required to produce a comprehensive Affidavit of Documents listing all relevant documentation touching on the matters in question.  The documentary disclosure rules in Small Claims Courts are much narrower and considerably less onerous.

Rule 13.03 (2) of the Ontario Small Claims Court Rules provides:

Disclosure

(2)  At least 14 days before the date of the settlement conference, each party shall serve on every other party and file with the court,

(a) a copy of any document to be relied on at the trial, including an expert report, not attached to the party’s claim or defence; and

(b) a list of proposed witnesses (Form 13A) and of other persons with knowledge of the matters in dispute in the action. O. Reg. 78/06, s. 27.

Rule 13.05 (1) additionally empowers a Judge presiding at a Small Claims Court settlement conference to direct that certain documents must be produced:

13.05  (1)  A judge conducting a settlement conference may make any order relating to the conduct of the action that the court could make. O. Reg. 78/06, s. 27.

(2)  Without limiting the generality of subrule (1), the judge may,

(a) make an order,

....(vi) directing production of documents

Beyond that, a party may wish to remain in Superior Court for less than legitimate reasons - for example, to avoid the speedier trial of a proceeding that will likely occur in Small Claims Court.

A cautionary note - those who unreasonably resist a transfer to Small Claims Court may face potential costs sanctions under Rule 57.05 the Ontario Rules of Civil Procedure, which govern Superior Court actions:  

COSTS WHERE ACTION BROUGHT IN WRONG COURT

Recovery within Monetary Jurisdiction of Small Claims Court

57.05  (1)  If a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs. O. Reg. 377/95, s. 4.

(2)  Subrule (1) does not apply to an action transferred to the Superior Court of Justice under section 107 of the Courts of Justice Act. R.R.O. 1990, Reg. 194, r. 57.05 (2); O. Reg. 292/99, s. 2 (2).

Default Judgment within Monetary Jurisdiction of Small Claims Court

(3)  If the plaintiff obtains a default judgment that is within the monetary jurisdiction of the Small Claims Court, costs shall be assessed in accordance with that court’s tariff. O. Reg. 377/95, s. 4.

Disputes over transfers might be less likely if the Small Claims Court Rules change, as they did in British Columbia when the B.C. Small Claims Courts' monetary limit was increased. 

B.C. Small Claims matters are now subject to three different procedural tiers, depending on the amount claimed in a lawsuit.

Will that happen in Ontario? There’s no word yet from the Ministry about whether there will be any significant new Small Claims Court Rules, and if so, what they might be. 

Stay tuned...

- Garry J. Wise and Bill Rogers, Toronto

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Update on Ontario Small Claims Court Changes

Ontario's Small Claims Courts, which are the busiest civil courts in the Province, will be getting considerably busier on January 1, 2010.

As we noted in our December 11, 2009 post, the arrival of the new year will bring an increase in the Court’s maximum monetary jurisdiction from $10,000 to $25,000 and a significant influx of new, larger cases is likely to follow.

The increased Claim limit has been under consideration for quite some time. In November 2007, former Associate Chief Justice of Ontario, Coulter Osborne, who headed the Civil Justice Reform project committee, submitted his findings and recommendations to the Ministry of Attorney General, including a recommended increase in the monetary limit in Ontario Small Claims Courts proceedings.

The recommendations were intended to enhance access to justice for Ontario residents by reducing the legal costs of litigation, and simplifying the prosecution of smaller, civil actions in the Province.

The changes ahead will bring Ontario in line with British Columbia, Alberta, the Yukon and Nova Scotia, all of which have a $25,000 Small Claims Court limit. Saskatchewan, too, will soon follow suit.

Ontario's Small Claims Court is a branch of the province's Superior Court of Justice. Examples of typical claims filed in the Small Claims Court include actions related to:

• unpaid accounts for goods or services;
• unpaid loans and rent;
• compensation for property damage;
• wrongful dismissal of employment;
• damages for personal injuries;
• damages for breach of contract.

The majority of the cases in Ontario's Small Claims courts are heard by Deputy Judges, who are lawyers appointed to preside, part-time, over hearings conducted at the Court.

The imminent raise in monetary jurisdiction will likely lead to a significant increase in the Court's case loads.

According to the Osborne report, 75,041 new proceedings were commenced in Ontario's Small Claims Court in 2005-2006. By comparison, during the same period, only 63,251 new civil proceedings were commenced the province's Superior Courts.

Of those 63,251 Superior Court cases, 6,555 included claims for amounts between $10,001 and $25,000, and would therefore be typical of cases likely to proceed in the expanded Small Claims Court system.

According to the Osborne Committee, the increased jurisdiction limit is likely to result in a need for additional facilities, court staff and judges.

Toronto, for example, has only one Small Claims Court, housed on one floor in a small office building at 47 Sheppard Avenue East, in the city’s Yonge and Sheppard area. According to a recent Ministry of Attorney General press release, however, a new court house is anticipated to be built in Toronto's west end. Whether the new facility will house a Small Claims Court remains unclear.

No plans have been announced yet for the appointment of additional deputy judges to service the expanded Courts, nor have amendments to the Court's Rules and procedures yet been tabled.

Time is running short for the announcement of such changes.

Potential litigants in these "smaller" $10,000.00 to $25,0000.00 claims already face daunting questions on how to proceed:

• In which of the Province's courts should new legal proceedings now be commenced?
• Will it be more cost-effective or strategically wise to simply wait until January to start new claims (so long as no limitation periods will pass in the interim)?
• If a proceeding is commenced today in Superior Court that will be within the future Small Claims limit, will there be a subsequent requirement to transfer courts?
• If an action is commenced today for $10,000.00 in Small Claims Court, will it be possible - or simple - to amend a Claim in January to increase the sum requested?

With little, specific guidance from the Attorney General's office as to the transition ahead, access to justice is not benefiting from a current paucity of information.

The expansion of the Court will have significant procedural and practical implication that must be addressed by current and future litigants - and legal professionals:

• the ability of successful litigants to recover partial or substantial indemnity for their legal fees is significantly reduced in Small Claims Courts. Costs awards in the Court are currently capped at 15% of the value of a claim. As a result, the maximum costs award (i.e., on a $25,000 claim) will be $3,750.00;
• Junior lawyers and articling students will require training in Small Claims Court advocacy. “Firms will have to promote the competency of their articling students to handle these files,” says Joshua Krane, an articling student with Gowling Lafleur Henderson LLP, in his March 2009 Canadian Lawyer magazine article on the pending changes. “Firms that are successful at doing so may reap the benefits of a vigorous and profitable small claims practice.”
• As noted, transitional procedures have yet to be announced to clarify whether there will be mandatory or optional transfer to Small Claims Courts of existing Superior Court actions in which $25,000.00 or less has been claimed. Further, the procedures and costs consequences of effecting such file transfers remain undefined;
• The fate of mandatory mediation in the Court after January 1st is unclear. Mediation has emerged as an extremely effective tool for achieving settlements in many types of Superior Court actions. While Small Claims Courts will continue to require mandatory settlement conferences before Judges and Deputy Judges, these differ in procedure, duration and scope from Superior Court mediations, which are typically convened with private mediators with specific expertise in the subject matter of the claim involved. British Columbia's Small Claims Court Rules provide for differing types of mediation, depending on the amount claimed in a proceeding;
• Amendments will likely be required to Ontario's Rules of the Small Claims Court to expand documentary disclosure obligations and to enable case management of complex cases;
• Questions abound as to whether all Small Claims actions will be treated alike under the new system. Will there be different procedural tiers, determined by the sums in dispute, as is the case in B.C.?

Some concern has additionally been voiced as to whether the Court's contingent of Deputy Judges has adequate judicial expertise and training to address the increased complexity of the higher-value cases that will soon be before the Court.

In a February 2009 article, Sun Media legal columnist Alan Shanoff noted that the new $25,000 monetary limit will likely bring larger and more complicated contract cases, defamation suits, and medical malpractice claims to the Court's docket.

As Mr. Shanoff astutely cautioned, "Certainly, the public deserves a full-time professional roster of judges and proper facilities. Let's not trade one set of problems for another."

- Bill Rogers, Shashi Raina and Garry J. Wise, Toronto

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Facebook, Disclosure, Leduc and Ontario Employment Law

Management lawyer Michael Fitzgibbon picks up on our March 4 discussion of the Leduc case, in which an Ontario personal injury Plaintiff was essentially ordered to make full disclosure to the defence of the contents of his private, friends-only Facebook pages.

Mr. Fitzgibbon contends the case has enormous implications for employment law litigation:

This is a very important case for those who practice in the area of employment law.

For example, an employee is terminated, sues and claims damages for wrongful dismissal.  Mitigation is always an issue in these cases.  If the former employee maintains a Facebook account or participates in other social-networking sits (MySpace or the increasingly popular Twitter) the contents of those sites may be highly relevant to that issue.  

There are enumerable examples but defence counsel should not overlook this important source of information on discovery and through the litigation and investigation, and plaintiff counsel will be well advised to consider this case when advising their client and preparing their Affidavit of Documents.

While Mr. Fitzgibbon may have taken a small leap of faith in his suggestion that Facebook postings are likely to be generally relevant on the specific issue of mitigation, his ultimate conclusion is sound.

Online postings at social media sites are now fair game for disclosure in Ontario civil litigation.

- Garry J. Wise, Toronto

Update - March 24, 2009:  Law.com also covers Leduc today - see: Electronic Discovery and Facebook

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Ontario Court Requires Disclosure of Facebook Content

Cavanaugh Williams covers Leduc v. Roman, an important February 20, 2009 Ontario appellate decision that considers the requirment of disclosure of Facebook content by a Plaintiff in a personal injury claim:

...counsel for the defence brought a motion before Master Dash, asking for (i) the interim preservation of all information contained on [the plaintiff's] Facebook profile, (ii) production of all information on the Facebook profile, and, (iii) the production of a sworn supplementary affidavit of documents.

On a preliminary ruling, the Master did order that the plaintiff copy and preserve every page from his Facebook profile until the hearing of the main motion. The plaintiff agreed to produce a supplementary affidavit of documents.

The Master refused to order the plaintiff to produce the pages from his Facebook profile that were not publicly accessible. He characterized the motion as a “fishing expedition” and focused on the fact that the defendant was unable to adduce any evidence as to what might be found on the site.

However, the Master did find that photographs or other information posted on the site, that showed the plaintiff’s activities or his “other enjoyment of life”, should be listed in the supplementary affidavit of documents that he had agreed to deliver. The Master was quite satisfied that the pages on the site constituted “documents” and that they lay within the plaintiff’s control.

....[ On appeal] Justice Brown came to a different conclusion. He thought that Facebook, by its very nature, is a vehicle by which people make available to others information about themselves, “what they like, what they do, and where they go, in varying degrees of detail”. He did not think that the defence had been on a “fishing expedition”, saying, “[i]t is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc [the plaintiff] has been able to lead his life since the accident.”

In the result, Justice Brown granted leave to the defendant to cross-examine the plaintiff on his supplementary affidavit of documents, about the nature of the content that the plaintiff had posted on his Facebook site.

The case is interesting in a couple of respects. Most obviously, it deals with the relatively recent phenomenon of how social networking websites are to be treated for purposes of discovery.

But more fundamentally, both Master Dash and Justice Brown seem to have taken it as a given that photographs of the plaintiff in a personal injury action are documents within the plaintiff’s control and that any such photographs that are demonstrative of the plaintiff’s lifestyle (assuming that that is an issue in the litigation) should be disclosed in the affidavit of documents. That would be true whether the photographs are printed or electronic and whether they are posted on the internet or exist only on a personal hard drive.

The entire article is well worth reading - see: Plaintiff’s Facebook Pages Not A “Fishing Expedition” by Defence, Judge Rules

- Garry J. Wise, Toronto

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Ontario Small Claims Court Limit to be Upped to $25,000 in 2010

Significant changes were announced today by Ontario Attorney General Chris Bentley that may revolutionize the way civil claims are handled in Ontario's court system.

The amendments, to come into effect in January 2010, will provide that:

• The monetary jurisdiction of Ontario's Small Claims Courts will increase to $25,000.00 from the current $10,000.00 limit;
• The streamlined simplified procedures in Ontario Superior Court's will apply in cases where up to $100,000.00 is claimed, up from the current $50,000.00 ceiling.

The new regulations will also establish limits to a party's entitlement to extended examinations for discovery in Superior Court proceedings. Under the proposed legislation, all discovery by a party is to be confined to one day, unless agreement is reached or an Order is obtained permitting extended discovery.

See the Attorney General's news release on the initiative, for additonal backround.

The proposed changes are intended to tackle the access to justice problems that have plagued the Province's court system.  

The Toronto Star reported on the Attorney General's announcement of the new procedures:

"This will provide greater access to justice to all Ontarians and to all Ontario businesses," Bentley said during a news conference at the Law Society of Upper Canada. It was attended by several high-ranking judges and prominent litigators who have been pressing for reforms to the civil justice system to make the cost of going to court more affordable.

I can respect the good intentions behind this initiative.  I am not particularly sold, however, on the notion that a leaner justice system will ultimately prove to be a wiser system. 

Certainly, the Small Claims Court sytem will require a massive overhaul, in terms of infrastructure and court procedures, to prepare for the exponentially more complex and voluminous caseload that lies ahead.  

Will mandatory mediation be preserved for cases in the new system?  Certainly, there has been no tool more effective in achieving expedited and cost-effective dispute resolution.

I'll review the new legislation in entirety before commenting further, but for now, I'm more than a bit skeptical of a civil procedure system that elevates cutting corners to the level of a primary, organizing principle.

Are there really any shortcuts to justice?

- Garry J. Wise, Toronto

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The Anatomy of a Lawsuit - Part 1

The Nuts and Bolts of Civil Legal Proceedings in Ontario

If you've ever been involved in civil litigation in Ontario, you've probably asked these questions:

How does the court system work? What is the next step in my lawsuit? When is the other party going to file its documents? What is a motion? What happens at a pre-trial hearing? What must be done to get a trial date scheduled?

What is going to happen next? And when?

In this series of articles, we will take a brief look at the way Ontario's litigation process works. We can't promise that it will be the most exciting read we've ever offered, and the truth of it is, much of this subject matter is by definition a bit technical.

However, we hope it will be a bit of a step-by-step resource and roadmap for individuals encountering Ontario's civil courts and judicial processes for the first time - and maybe even for those who are there for the second time, too.

....

Part 1

In this installment, we'll discuss the steps involved at the beginning of a legal action in Ontario. We'll go over some basic, preliminary definitions, and then canvas the steps and timeframes applicable at the outset of an Ontario civil lawsuit.

All procedures in the Province's civil court system are governed by an Ontario Regulation called the Rules of Civil Procedure ("The Rules").

The Rules are the bible of Ontario civil litigation. They set out the groundrules covering each step in a lawsuit, often to the most minute detail. They are complex at time, and parties often require the assistance of Ontario's motions courts to interpret their intricacies.

It would not be possible to canvas the Rules fully in articles of this scope. For the benefit of our readers, however, we will address the major steps in a lawsuit, without delving into the finer procedural details.

Of course, our comments will by necessity be general in nature and are not intended as legal advice. If you have specific questions affecting you own litigation, it is important that you obtain legal advice from a licensed Ontario lawyer

Basic Definitions

A plaintiff, simply put, is a person (or legal entity such as a corporation) that has commenced a civil lawsuit. According to etymonline, the term has an interesting history:

Plaintiff - c. 1400 - from the "Anglo-Fr. pleintif (1278), noun use of O.Fr. plaintif "complaining," from pleint...Identical with plaintive at first; the form that receded into legal usage retained the older -iff spelling.

A defendant is a person or legal entity that has been sued in a civil lawsuit and must defend it. This word also has a meaningful etymolgy:

Defend - c.1250, from O.Fr. defendre, from L. defendere "ward off, protect," from de- "from, away" + fendere "to strike, push." In the Mercian hymns, L. defendet is glossed by O.E. gescildeð. Defendant is from O.Fr. prp of defendre.

A pleading is a formal legal document filed by a party to a lawsuit that sets out the party's factual allegations and legal position in the court proceeding. In Ontario's court system, the pleading utilized by a plaintiff to commence a a civil suit is called a Statement of Claim, while the Defendant's responding pleading is called a Statement of Defence.

What is Civil Litigation?

The term "civil litigation" refers generally to all court proceedings between private individuals and/or corporations in which compensation or other legal remedy is pursued by one against the other.

Typical categories of civil litigation include wrongful dismissal, personal injury, defamation, negligence, malpractice, product liability and debt collection claims.

Ontario's Courts

There are two levels of trial court in Ontario's civil justice system.

• The Superior Court of Justice is Ontario's high court. It has branches throughout the province, and was previously known as the Supreme Court of Ontario.

• Small Claims Courts also operate throughout the province, and as implied by the Court's name, adjudicate matters of lower financial value. Ontario's Small Claims Courts have jurisdiction to determine claims valued at up to $10,000.00. The Court has its own distinct procedures - the Ontario Small Claims Court Rules. Small Claims Court forms, which are required in all actions in the Court, are available for free download online from the Ontario Court Services website. Our comments below are not applicable to Small Claims Court actions.

Family Law proceedings also have a discrete set of rules, practices and procedures, set out in Ontario's Family Law Rules - that differ from the steps below. We will be addressing Ontario Family Law procedures in a subsequent article.

Which Court, Which Stream?

In the Ontario Superior Court of Justice, there are two procedural streams available for Ontario's civil actions.

The Court's Ordinary Procedures apply to all actions in which claims are advanced for compensation of more than $50,000.00.

The Court's Simplified Procedures apply to actions in which compensation of not more than $50,000.00 is claimed. If there is more than one Plaintiff, and if each Plaintiff’s claim is not more than $50,000.00, the action will be governed by the Simplified Procedure, even if collectively the claims exceed $50,000.00. The Simplified Procedures are intended to streamline court processes in order to limit legal expense and expedite resolution.

The main procedural difference between Simplified Procedure actions and Ordinary Procedure actions is that under the Simplified Procedures, Examinations for Discovery are not available. These examinations are part of the disclosure process, discussed further in our next installment.

Both streams follow the same processes to initiate a lawsuit in Ontario, so our comments that follow about this initial stage will apply to proceedings commenced under both the simplified and ordinary proceeding Rules.

Note: We have included hyperlinks within the text that follows to the specific Rule that relates to each document and step discussed. Clicking on the highlighed text will take you to the applicable Rule in Ontario's Rules of Civil Procedure.

Starting a Lawsuit in Ontario Superior Court of Justice

Pleadings

A legal action is commenced with the issuance of a first pleading, a legal document referred to as an originating process, at any Ontario Superior Court of Justice office.

This step, of course, must be completed before the expiry of any deadlines, or limitation periods, applicable to the proceeding. It is critical that you consult with a lawyer to determine the deadlines that may be applicable to your specific circumstances.

We will now canvas the specific legal documents that are typically required at the outset of a legal action Ontario, along with the timeframes for the delivery of each document, as set out in the Rules:

• Most Ontario lawsuits are commenced with a pleading called a Statement of Claim. The Statement of Claim must be personally served upon each Defendant within six months of its issuance.

• Certain, types of court proceedings that are specified in the Rules may be commenced with a Notice of Application, rather than a Statement of Claim. Please note that we will not be addressing procedures in these kinds of cases in this article.

• Timeframes for delivery of a Statement of Defence: Once served with a Statement of Claim, each Defendant who has been served in Ontario has twenty (20) days from the date of service to deliver Statement of Defence. If a Defendant is served elsewhere in Canada or the U.S., the Defence must be served within forty (40) days. If a Statement of Claim is served elsewhere in the world, a sixty (60) day deadline applies. A Defendant may automatically obtain a ten-day extension of the applicable deadline if a Notice of Intent to Defend is delivered within these timeframes.

• A Plaintiff may deliver a Reply to the Statement of Defence within 10 days after service of Statement of Defence. If no Reply is filed, all allegations in the Defence are deemed to have been denied.

• If either party wishes that the action to be tried by a Jury, a Jury Notice must be served before close of pleadings (pleadings are deemed to have closed when a Reply to the Defence is filed or the time to file a Reply expires).

• Counterclaims, crossclaims, and third party claims - A defendant may advance its own claims against the Plaintiff(s) by delivering a counterclaim. A defendant can also advance claims against another defendant in the action by delivering a crossclaim. A claim against another person or entity that is not already named in the lawsuit may also be advanced by a Defendant upon delivery of a third party claim. These claims must be defended after service within the timeframes set out above for delivery of a Statement of Defence.

• If a claim is not defended, a Plaintiff may proceed to default judgment. In simple cases, this may be done by filing a Requisition for Default Judgment with the Registrar of the court. In more complex cases, it may be necessary to proceed before a Judge with a motion for default judgment, at which proof of the allegations in the Statement of Claim must be tendered.

Once all pleadings are in place, the next step in an Ontario civil lawsuit involves documentary disclosure - the delivery and exchange of Affidavits of Documents and the production and disclosure by all parties to each other of all relevant documents and information that relate to the issues in the litigation.

Under the Ordinary Rules, parties are at this stage also entitled to examine each other under oath in a process known as Examination for Discovery. Examinations for Discovery are not permitted, ordinarily, in Simplified Rules proceedings

We'll be discussing discovery and documentary production in our next installment. In future installments we'll also be addressing:

• Motions
• Mediation
• Pretrials
• Settlements
• Trials
• Costs
• Appeals
• The Family Law Rules

Finally, we'll be providing what we feel will be a most important conclusion to this series, our upcoming article, "To Sue or Not To Sue."

That article will look at the practical and economic considerations involved in proceeding with a lawsuit in Ontario, including a frank look at what courts can - and cannot - typically do for litigants in the Province.

- Garry J. Wise and Shashi K. Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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