Civil procedure

Pleadings

OVERVIEW

Pleadings – written statements exchanged by the parties to an action that:

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  Identify the parties, events, and facts giving rise to the lawsuit
  
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  Identify the issues in dispute
  
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  Identify the legal nature of claims and defences;
  
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  And set out the relief sought by the parties
  

NATURE & FUNCTION OF PLEADINGS

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  Pleadings are foundation upon which case is to be constructed
  
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  Spending time and energy at outset will help you decide whether your client has a case at all
  
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  The exchange of allegations begins with issuance and service of the Statement of Claim
  

Pleadings include:

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  Notice of civil claim
  
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  Response to civil claim
  
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  Reply
  
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  Counterclaim
  
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  Response to Counterclaim
  
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  Third Party Notice
  
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  Response to Third Party Notice
  

Content of Pleadings

Rule 3-7 provides general guidance on how to draft pleadings. Some key points:

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  All Canadian jurisdictions require material fact pleadings and not the evidence by which those facts are proved, this is essential to:
  

1. 
   Establishing that the P has the necessary elements to constitute a cause of action
   

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  Pleadings must be lay out a clear issue judiciable by the Courts, even for Charter litigation (CBA v BC)
  

2. 
   Establishing the relief/forms of remedy you are seeking: injunction, damages, etc.
   

*Side Note on Damages:

General damages – damages for injury, and an exact $ value is hard to quantify (i.e. – pain & suffering)

Special damages – damages for monetary compensation, for actual out-of-pocket expenses (i.e. – if you had to see a medical specialist, physiotherapist)

Punitive damages – damages meant to punish the other party for behaving badly

Statutory damages - some statutes specify the damages

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  Pleadings provide for significant pre-trial disclosure in an effort to limit unfair surprise at trial – this has renewed significance as mechanisms for the efficient administration of justice evolve.
  
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  Procedural concerns – pleadings must be internally consistent, can’t say one thing in the facts, and another later on in the doc
  
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  Naming Parties: Parties must be named correctly otherwise it may render a judgment completely invalid.
  
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  Trial Record: If you are the party who filed a claim, you must file a trial record. Item presented to judge only contains pleadings, demands for particulars, case plan and any court order related to the trial. Good time to advocate and let judge know why you have a solid case and why the remedy is appropriate.
  

Purpose of Pleadings

Halvorson v BC (Medical Services Commission)

1. 
   Define the questions that will be determined between the parties** (most important)
   
2. 
   Fairly notifying the opposing party of the case to be met
   

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  Related to P of FJ (Fairness and due process)
  

3. 
   Framing the issues of facts & law with clarity to be determined by the court
   

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  Informs judges of areas of law they will be examining, defines scope and ambit of arguments
  
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  Pleadings must be as brief as practicable and must set out in summary form
  
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  Material facts must be pleaded on, but not the evidence by which those facts are to be proven (Copeland v Commodore Business Machines)
  
  • 
    Material facts = are those essential to establish legal cause of action
    

4. 
   Providing a clear record of the issues involved in the action to prevent re-litigation of the same issues at a later date (res judicata, respecting scare judicial resources)
   
5. 
   Providing an opportunity to be an advocate, advocate for your client and have the court respect your clients case.
   

Particulars

Rule 3-17 (18-24)

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  In order for actions to survive, it needs to have all necessary facts in the pleadings.
  
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  Particulars - are extra facts that help the reader understand the narrative of the pleadings that go beyond material facts but do not constitute evidence. It may not be a material fact, but it helps the other decides to better know the case to meet.
  
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  When a party chooses to plead a legal conclusion and there are no material 
facts to support that conclusion, the court may order that further particulars be delivered so the other party can 
adequately prepare for trial and examination for discovery, without taken by surprise 

  

Court may order you to serve more particulars, but you have to ask 


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  If you receive a pleading from another party and you feel its not detailed or explained enough, you are expected to write to the other party before you bug the court about it
  

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  Demand for particulars is not a stay of proceedings. They are necessary when: 

  
  • 
    The party pleading relies on misrepresentation, fraud, breach of trust, wilful default, or undue influence of if particulars may be necessary, full particulars with dates and items if applicable must be state in the pleadings
    

SCCR 3-7 (18 to 24) - Particulars

Rule 3-7(18) - In cases where someone is pleading fraud, breach of trust, wilful deceit or undue influence, particulars may be necessary. This includes adding dates, times and facts that help to allow the court to bridge the gap between material facts and evidence.
Particulars in libel or slander

 If you’re going to allege that someone is a bad person, they will require that you provide everything that says so , and the Court will require it

Order for particulars

(22)The court may order a party to serve further and better particulars of a matter stated in a pleading.

Demand for particulars

(23)Before applying to the court for particulars, a party must demand them in writing from the other party.

Demand for particulars not a stay of proceedings

*Note: Had to put this in to stop people from gaming the system. This rule is a reminder to let them know that asking for further and better particulars doesn’t mean that the system or other time limits are put on hold.

 It is important that both parties have the information they need to unpack the case and understand the case that needs to be met, but it must be balanced against time limits.

Copeland v. Commodore Business Machines

[Material facts must be pleaded, but not the evidence by which those facts are to be proved]

FACTS - Alleged wrongdoing by an employee who is suing for wrongful dismissal. P made a motion for particulars.
ISSUE: How much information must be set forth in statement of defence, in a wrongful dismissal action, when the D employer seeks to plead dismissal for cause?

RATIO: Material facts must be pleaded, but not the evidence by which those facts are to be proved
ANALYSIS: Minimum level of material fact disclosure is very high and pleading must contain sufficient detail so that the employee and court can ascertain the exact nature of the questions to be tried, so that the employee can meet the charge and respond in his reply accordingly

Canadian Bar Association v BC (2008)

[Pleadings prevent expansion of the issues, give notice of the case required to be met, and provide certainty of the issues for purposes of appeal; they should be clear even in Charter litigation]

FACTS

CBA tried to make Canada & BC into modifying legal aid under claims that the services administered were inadequate to the point of breaching Charter rights and int’l human rights obligations. While the provision is not unconstitutional, they claimed there was an unwritten constitutional principle of the rule of law that required every person to have meaningful A2J. They seek declarations that would essentially force the provision of legal aid into maintaining the legal aid system at the level they want.

ISSUE

Should pleadings be read generously for Charter litigation? NO, pleadings must be clear at all times

RULE

While there is a particular need to read pleadings generously for Charter litigation, the pleadings must lay out a clear issue that is justiciable by the courts. Where a claim does not provide a reasonable cause of action, it simply will not be pursued

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  Pleadings prevent expansion of the issues, give notice of the case required to be met, and provide certainty of the issues for purposes of appeal. Ideally, they should avoid “loose thinking”
  

ANALYSIS

Pleadings were quite vague by the CBA, b/c of the manner of inquiry desired by the CBA

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  They wanted the courts to do the work, make the recommendations, force execution of legal aid provisions and monitor its use.
  
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  These things are so ridiculous it makes clear pleadings that much more necessary.
  
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  At para 31, the judges point out that not only did the CBA fail to plead material facts, but the particulars were conclusions of laws and not even particulars. Pleading international rights obligations that aren’t enforceable in Canada also doesn’t help.
  

HOLDING

Pleadings struck and standing denied.

Halvorson v BC

[Purpose of pleadings]

ANALYSIS & HOLDING

The purposes of pleading include to:

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  Define the issues of fact and law with clarity and precision,
  
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  give fair notice to the opposing parties of the cases they respectively have to meet so that they may prepare to meet them,
  
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  and create a record of the issues tried in the action so as to prevent future litigation upon the matter between the parties.
  

*Additional Notes:

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  Certification of a class action is “fluid, flexible procedural process” and there is nothing wrong with Ps reformulating their approach and pleadings on appeal.
  
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  Provided the defendant is not prejudiced, it is open to a P to recast its case to make it more suitable for certification. It also may be appropriate to draw the pleading collaboratively in case management in order to provide a proper foundation for trial.