The 2014 decision of Moore v. Getahun created quite a stir in Ontario's litigation bar when Justice Wilson held that it was improper for counsel to review and discuss draft reports with experts. The Court of Appeal released its appeal of the decision January 29, 2015. You can access the decision by clicking here.
The Court disagreed with the trial judge. There held there is nothing improper about "this longstanding practice." Sharpe J.A. noted that the trial judge's decision is contrary to existing cases which say communication with the expert can actually help ensure an opinion is admissible, coherent and comprehensive. There are safeguards built into the system: counsel cannot persuade an expert to change an opinion and it still needs to be objective.
Draft reports and notes of meetings and other communications are litigation privileged and do not have to be produced, absent a reasonable suspicion the expert was improperly influenced. The foundational information used in formulating the opinion must still be produced.
This common sense decision will be welcomed by many on both the plaintiff and the defence side.
Tampilkan postingan dengan label Civil Procedure. Tampilkan semua postingan
Tampilkan postingan dengan label Civil Procedure. Tampilkan semua postingan
Jumat, 30 Januari 2015
Rabu, 28 Januari 2015
Changes to the Rules Regarding Appeals
A number of changes to the Rules of Civil Procedure came into effect on January 1, 2015.
One of the changes is with respect to obtaining leave to appeal an interlocutory Order of a judge. The former rule 62.02 provided that a notice of motion for leave to appeal must be served within seven dates of the Order. The new rule is a substantial change: r. 62.02(2) provides that the motion for leave to appeal shall be heard in writing.
The change may reduce costs in that it eliminates the need for an argued motion. The test for such appeals remains the same: a conflicting decision and desirable that leave be granted, or good reason to doubt the correctness of the decision and an appeal involving matters of such importance that leave to appeal should be granted.
One of the changes is with respect to obtaining leave to appeal an interlocutory Order of a judge. The former rule 62.02 provided that a notice of motion for leave to appeal must be served within seven dates of the Order. The new rule is a substantial change: r. 62.02(2) provides that the motion for leave to appeal shall be heard in writing.
The change may reduce costs in that it eliminates the need for an argued motion. The test for such appeals remains the same: a conflicting decision and desirable that leave be granted, or good reason to doubt the correctness of the decision and an appeal involving matters of such importance that leave to appeal should be granted.
Rabu, 17 Desember 2014
Changes to the Rules of Civil Procedure
The Rules of Civil Procedure are being amended as of January 1, 2015. Included in the amendments are changes to r. 48.
Currently, r. 48.14 provides that if an action has not been placed on the trial list within two years after the first defence is filed, the Registrar will issue a status notice providing that the action will be dismissed in 90 days.
The new rule provides that the Registrar shall dismiss the action for delay if:
(a) The action has not been set down or terminated by the later of five years after its commencement or January 1, 2017; or
(b) The action was struck from the trial list and has not been restored to the trial list by the later of two years of being struck or January 1, 2017.
If a status hearing was scheduled before January 1, 2015, the old rule continues to apply.
These amendments will likely help to avoid many motions that were necessary to either avoid a dismissal or to set aside an administrative dismissal.
Currently, r. 48.14 provides that if an action has not been placed on the trial list within two years after the first defence is filed, the Registrar will issue a status notice providing that the action will be dismissed in 90 days.
The new rule provides that the Registrar shall dismiss the action for delay if:
(a) The action has not been set down or terminated by the later of five years after its commencement or January 1, 2017; or
(b) The action was struck from the trial list and has not been restored to the trial list by the later of two years of being struck or January 1, 2017.
If a status hearing was scheduled before January 1, 2015, the old rule continues to apply.
These amendments will likely help to avoid many motions that were necessary to either avoid a dismissal or to set aside an administrative dismissal.
Rabu, 25 Juni 2014
New Practice Directions
As of July 1, 2014 there are new Practice Directions that come into effect across Ontario. There is a new province-wide direction and well as new ones for each judicial region.
Here is the link to the regional directions:
Here is the link to the provincial direction:
Here is the link to the regional directions:
It is important to be aware of these Practice Directions because some of them change the requirements under the Rules; for example, whereas the Rules do not require factums for each motion, the Practice Direction says factums are required for all long motions.
Rabu, 12 Maret 2014
Requests to Admit Can Be Reviewed on an Interlocutory Basis
Can the validity of responses to a Request to Admit be reviewed on an interlocutory basis? Yes, according to a recent motion decision.
In Glover v. Gorski, 2013 ONSC 6578 (S.C.J.), the minor plaintiff was struck by a Waste Management truck while crossing a highway. The defendants served a Request to Admit prior to disclosure and discoveries. The plaintiffs made a global refusal, "to admit the truth of the facts...on the basis that the truth or falsity of the facts alleged is not entirely clear, calls for a conclusion to be determined by the trier of fact or the statement(s) alleged is vague". The defendants brought a motion to compel the plaintiff to provide answers. One issue was whether a motions judge could make an Order or whether the matter must be left to a trial judge.
Justice Gauthier held that a Request to Admit can be reviewed on an interlocutory basis. She held that the plaintiffs' blanket refusal and reasons offered for the refusal were not responsive, and ordered they deliver a Response within 20 days.
A Request to Admit is most often served prior to trial to narrow down issues, but Glover shows that it can also be useful at earlier stages of the litigation to narrow issues.
In Glover v. Gorski, 2013 ONSC 6578 (S.C.J.), the minor plaintiff was struck by a Waste Management truck while crossing a highway. The defendants served a Request to Admit prior to disclosure and discoveries. The plaintiffs made a global refusal, "to admit the truth of the facts...on the basis that the truth or falsity of the facts alleged is not entirely clear, calls for a conclusion to be determined by the trier of fact or the statement(s) alleged is vague". The defendants brought a motion to compel the plaintiff to provide answers. One issue was whether a motions judge could make an Order or whether the matter must be left to a trial judge.
Justice Gauthier held that a Request to Admit can be reviewed on an interlocutory basis. She held that the plaintiffs' blanket refusal and reasons offered for the refusal were not responsive, and ordered they deliver a Response within 20 days.
A Request to Admit is most often served prior to trial to narrow down issues, but Glover shows that it can also be useful at earlier stages of the litigation to narrow issues.
Rabu, 13 November 2013
Leave Required for Refusals Motion After Set Down – Part II
We previously posted on the decision of Jetport v. Jones Brown, 2013 ONSC 2470 (S.C.J.), which held that leave is required for a refusals motion that is commenced after the action has been set down. The Jetport decision has been followed in Hamilton v. Ontario(Minister of Transport), 2013 ONSC 4536 (S.C.J.).
In Hamilton, a representative of the defendant was examined for discovery on March 30, 2012. In response to a status notice, the plaintiffs delivered a trial record and set the matter down for trial on January 22, 2013. The plaintiff then brought a motion seeking answers to refusals on March 7, 2013. The motion was dismissed by Master Haberman on the basis that the plaintiff had not sought leave for as required by rule 48.04 and the plaintiff appealed.
On appeal Firestone J. held that although there was disagreement in the case law on the issue of whether leave is required, Master Haberman was not in error when she chose the line of authority that appeared most persuasive. The line of authority followed by Master Haberman and approved of on appeal was that of Jetport v. Jones Brown. Because leave was not sought, the Master was correct in not considering the issue of refusals.
It may have been that the Master’s decision was meant to be a procedural slap on the wrist to the plaintiff. The decision notes that the requirement for leave was neither sought nor addressed by the plaintiff in their original motion material. The Master’s decision did not preclude the plaintiff from bringing a motion for leave to have their refusals motion heard. Counsel should be cautious about setting a matter down if they wish to pursue refusals. They should also seek leave of the court, and address this in motion materials when in doubt. Rabu, 12 Juni 2013
Leave Required for Refusals Motion After Set Down
Does a party need leave to continue a refusals motion after it has set the action down?
One of the issues on the motion was whether the plaintiff required leave to bring the motion pursuant to r. 48.04(1) since it had set the action down for trial. The plaintiff argued that it did not require leave based on rule 48.04(2), which provides that r. 48.04(1) does not relieve a party from any obligation imposed by r. 31.07 (failure to answer on discovery).
Master Graham held that the plaintiff required leave. There is no obligation on a party to answer questions refused on discovery and therefore a motion to compel answers does not fall within s. 48.04(2) so a party that has set the matter down must seek leave to initiate or continue a motion to compel answers to refusals.
It appears there are two differing lines of case law on this issue. Counsel should be cautious about setting an action down if there are outstanding refusals they wish to pursue.
Rabu, 27 Maret 2013
Videotaping Examinations for Discovery
In what circumstances will a court permit examinations for discovery to be videotaped?
J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)
This action arose out of allegations of historical sexual assault. The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues. The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial. The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse. A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Justice Hennessy allowed the motion. Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts. There was a higher than normal probability that the defendant would not be available at trial given his age and health status. The video was permitted under r. 34 rather than r. 36.
J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)
This action arose out of allegations of historical sexual assault. The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues. The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial. The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse. A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Justice Hennessy allowed the motion. Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts. There was a higher than normal probability that the defendant would not be available at trial given his age and health status. The video was permitted under r. 34 rather than r. 36.
Rabu, 06 Februari 2013
Examination for Discovery: Attendance of Parties
When a party has selected an individual to be examined on behalf of a corporation, is another corporate representative entitled to attend to observe discoveries?
In Cody v. Culley 2013 ONSC 199 (S.C.J.), the issue was whether a corporate representative could attend the examination for discovery of the individual chosen to be examined by the opposing party. The plaintiffs argued that a corporation cannot have a different representative attend discoveries when the adverse party has selected a representative. Master Glustein permitted the representative to attend. A corporation has the right to attend examinations for discovery as an independent legal entity. The corporate representative chosen by the adverse party is not required to have any decision-making power and a corporation may want someone at the discoveries who can decide litigation issues or at least report back to management for such decisions. The attendance of such an individual could assist in the settlement process or provide more informed instructions to counsel. The individual would not be attending to be examined, but to be the person who acts on behalf of the corporation to assist in the litigation decision-making process.
This decision could be useful to those representing corporate entities such as municipalities who wish to have a member of the Corporation observe discoveries to get a sense not only what the evidence might be but also how effective the witness may be.
In Cody v. Culley 2013 ONSC 199 (S.C.J.), the issue was whether a corporate representative could attend the examination for discovery of the individual chosen to be examined by the opposing party. The plaintiffs argued that a corporation cannot have a different representative attend discoveries when the adverse party has selected a representative. Master Glustein permitted the representative to attend. A corporation has the right to attend examinations for discovery as an independent legal entity. The corporate representative chosen by the adverse party is not required to have any decision-making power and a corporation may want someone at the discoveries who can decide litigation issues or at least report back to management for such decisions. The attendance of such an individual could assist in the settlement process or provide more informed instructions to counsel. The individual would not be attending to be examined, but to be the person who acts on behalf of the corporation to assist in the litigation decision-making process.
This decision could be useful to those representing corporate entities such as municipalities who wish to have a member of the Corporation observe discoveries to get a sense not only what the evidence might be but also how effective the witness may be.
Rabu, 05 Desember 2012
Appellate Jurisdiction
Under the Courts of Justice Act, appeals relating to amounts greater than $50,000 must be made to the Court of Appeal. Appeals of judgments relating to amounts under $50,000 are to the Divisional Court. Where only a portion of a judgment is appealed, does the jurisdiction change?
In Grammatico v. Chambers, 2012 ONSC 6518 (Div. Ct.), the parties disagreed on whether the proper court to hear an appeal was the Divisional Court or the Court of Appeal. The substantive judgment involved sums greater than $50,000, the threshold imposed by s. 19(1.2) of the Courts of Justice Act for appeals to the Court of Appeal. The defendant argued that it sought to appeal an interest component relating to costs, rather than the substantive judgment. Since the amount would be less than $50,000 the defendant's position was that the appeal was to the Divisional Court.
Justice Eberhard held that the appeal was to the Court of Appeal. The jurisdiction for appeal must be determined by the aggregate of the sums awarded. The fact that only one part of the decision was under appeal did not determine jurisdiction.
In Grammatico v. Chambers, 2012 ONSC 6518 (Div. Ct.), the parties disagreed on whether the proper court to hear an appeal was the Divisional Court or the Court of Appeal. The substantive judgment involved sums greater than $50,000, the threshold imposed by s. 19(1.2) of the Courts of Justice Act for appeals to the Court of Appeal. The defendant argued that it sought to appeal an interest component relating to costs, rather than the substantive judgment. Since the amount would be less than $50,000 the defendant's position was that the appeal was to the Divisional Court.
Justice Eberhard held that the appeal was to the Court of Appeal. The jurisdiction for appeal must be determined by the aggregate of the sums awarded. The fact that only one part of the decision was under appeal did not determine jurisdiction.
Rabu, 31 Oktober 2012
Restricting Summary Judgment
Are courts beginning to restrict the use of summary judgment?
Justice Brown took the opportunity to comment on summary judgment in a decision encompassing two cases, George Weston Limited v. Domtar Inc and 1318214 Ontario Limited v. Sobeys Capital Inc., 2012 ONSC 5001 (S.C.J.). These were two cases from the Commerical List in Toronto where counsel sought to schedule summary judgment motions. In George Weston, the plaintiff sought to schedule a summary judgment motion prior to examinations for discovery. In 1318214 Ontario, discoveries were mostly complete and when the plaintiff sought to set the matter down for trial, the defendant advised it intended to bring a motion for partial summary judgment to limit the issues for trial.
Justice Brown laments the motion culture in Toronto and what he sees as a reluctance of counsel, especially counsel who have practiced for less than 15 years, to bring cases to trial. He suggests that instead of bringing summary judgment motions, counsel should take more cases to trial and that courts should facilitate the process by approving innovative ways of proceeding to trial; for example, evidence could be a hybrid of written and viva voce evidence.
It will be interesting to see if other judges share Justice Brown's concerns and if courts will start restricting the use of summary judgment motions. Defence counsel and insurers will need to carefully assess each case to determine whether the appropriate way is to proceed by way of summary judgment or whether it might be more beneficial to simply proceed to trial.
Justice Brown took the opportunity to comment on summary judgment in a decision encompassing two cases, George Weston Limited v. Domtar Inc and 1318214 Ontario Limited v. Sobeys Capital Inc., 2012 ONSC 5001 (S.C.J.). These were two cases from the Commerical List in Toronto where counsel sought to schedule summary judgment motions. In George Weston, the plaintiff sought to schedule a summary judgment motion prior to examinations for discovery. In 1318214 Ontario, discoveries were mostly complete and when the plaintiff sought to set the matter down for trial, the defendant advised it intended to bring a motion for partial summary judgment to limit the issues for trial.
Justice Brown laments the motion culture in Toronto and what he sees as a reluctance of counsel, especially counsel who have practiced for less than 15 years, to bring cases to trial. He suggests that instead of bringing summary judgment motions, counsel should take more cases to trial and that courts should facilitate the process by approving innovative ways of proceeding to trial; for example, evidence could be a hybrid of written and viva voce evidence.
It will be interesting to see if other judges share Justice Brown's concerns and if courts will start restricting the use of summary judgment motions. Defence counsel and insurers will need to carefully assess each case to determine whether the appropriate way is to proceed by way of summary judgment or whether it might be more beneficial to simply proceed to trial.
Rabu, 29 Agustus 2012
Withdrawing Deemed Admissions
When will a party be permitted to withdraw deemed admissions arising from the failure to respond to a Request to Admit?
In Epstein Equestrian Enterprises Inc. v. Cyro Canada Inc., 2012 ONSC 4653 (S.C.J.), the plaintiff served a Request to Admit eleven days before trial was scheduled to begin in 2010. Trial was adjourned initially for one week and then again until 2012. One of the defendants, Jonkman, failed to respond to the Request to Admit. Rule 51.02(1) provides that a party is deemed to admit the contents of a Request to Admit if it does not respond to it within 20 days after it is served. Jonkman sought to either set aside the Request to Admit or to withdraw the admissions.
Justice Morgan held that even though the Request to Admit was not served 20 days before trial, once the trial was adjourned and did not start for 20 days, the deeming provision applied. The main issue therefore centred on whether Jonkman was entitled to withdraw its admissions. The court may grant leave to withdraw the admissions if the following conditions are met:
Justice Morgan held that even though the Request to Admit was not served 20 days before trial, once the trial was adjourned and did not start for 20 days, the deeming provision applied. The main issue therefore centred on whether Jonkman was entitled to withdraw its admissions. The court may grant leave to withdraw the admissions if the following conditions are met:
- The proposed change raises a triable issue;
- There is a reasonable explanation for the change of position; and
- The withdrawal will not result in any prejudice that cannot be compensated for in costs. (citing Antipas v. Coroneos, 1988 CarswellOnt 358)
Justice Morgan permitted the admissions to be withdrawn. At the time the Request was served, Jonkman was basically without legal representation as its counsel was in the process of being removed from the record. It had instructed counsel not to respond to the Request to Admit. It subsequently brought a coverage application and was now being defended by an insurer. The plaintiff supported the coverage application and must have understood that if coverage was achieved, a defence would be pursued. Jonkman's new counsel and insurer were unaware of the Request Admit and it would be unable to defend itself if the admissions stood. The coverage application had been settled, and Justice Morgan speculated that the insurer's position may have been different had it known that Jonkman had effectively deprived itself of a defence by failing to respond to a wide ranging Request to Admit.
Justice Morgan was of the view that any prejudice to the plaintiff would not be inordinate as a trial would have been needed to canvas issues with the co-defendant in any event. The plaintiff further argued it was prejudiced as it had entered into a Pierringer Agreement with the remaining defendants and was concerned Jonkman would attempt to pin liability on those parties at trial. Justice Morgan held that the plaintiff had previously assumed Jonkman was insolvent when it entered the settlement and so this factor was to the plaintiff's benefit not prejudice. The admissions were withdrawn.
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