Civil procedure

6. Disposition of an Action Without Full Trial

SUMMARY

Rule 3-8 Default Judgment

• 
  D doesn’t respond in time to notice of civil claim; failure to respond = acceptance of liability
  

Rule 9-5 Motion to Strike Pleadings

• 
  Pleadings are not fine; Fail to disclose a cause of action
  

Rule 9-6 Summary Judgment

• 
  Pleadings are fine, but not enough evidence that is discovered that would allow the parties to prove the allegations
  

Rule 9-7 Summary Trial

• 
  The pleadings are fine, and enough evidence to support but the nature of case is that the court does not need to engage in a full trial on the merits b/c all the relevant necessary facts can be put fwd by a way of affidavits
  
• 
  Avoids abuse of the Court process & respects finances of litigants
  

Rule 9-8 Discontinuing and withdrawing an action

• 
  Stopping proceedings altogether
  

Rule 27-7 Want of Prosecution

• 
  D brings this motion b/c P is taking too long to respond. Court may dismiss this case.
  

1) Default Judgment – Rule 3-8

Rule 3-8 – p.11

Default Judgment

• 
  If a D fails to respond to notice of an action (ie, a statement of claim/notice of civil claim) then the P may be able to obtain default judgment.
  
• 
  Court will view a failure to respond as an indication that the D accepts liability resulting in the D being responsible for the damages, or other remedies, sought by the plaintiff.
  

• 
  The lesson is, if you are sued, you have to abide by those statutory time period to file a respond otherwise you are to assume guilt.
  
• 
  Test to set aside default judgments in DCF v Doe
  

Time period to respond to a Notice of Claim  BC - 21 days / Elsewhere in Canada: 35 days

Rule 3-8 – Default Judgment

1. 
   P may proceed against a D under this rule if:
   

1. 
   That D has not filed and served a response to civil clam, and
   
2. 
   The period for filing and serving the response to civil claim has expired (BC 21 days)
   

2. 
   P who wished to proceed against a D under this rule must file
   

1. 
   Proof of service of notice of civil claim on that D
   
2. 
   Proof that the D has failed to serve a response to civil claim
   
3. 
   A requisition endorsed by registrar with a notation that no response to civil claim has been filed to that D and
   
4. 
   A draft default judgment order in form 8
   

Test for Setting Aside a Default Judgment (Director of civil forfeiture v Doe)

Test in order to set aside default judgment (Director of Civil Forfeiture v Doe)

1. 
   Failure to file the appearance or statement of defence was not wilful or deliberate
   
2. 
   The application to set aside the judgment was made as soon as reasonably possible
   
3. 
   There is a meritorious defence or at least a defence worthy of investigation
   
4. 
   Everything must be supported by affidavit evidence*
   

Why do you need affidavit evidence to set aside this judgment?

B/c the court needs to be able to assess the reliability of the reasons for why things were so delayed. If you are going to waste the courts time and essentially re-open litigation that was closed and deprive others of judicial resources, you better have a good reason to do so.

Director of Civil Forfeiture (DCF) v Doe

[Test for setting aside default judgment]

FACTS - The DCF won a default judgment by the Carribean banks. Courts allowed Carribean banks to come forward to try and set aside the default order.

• 
  The banks claimed they were not aware of the service until 3 months before the default judgment was made but for whatever reasons didn’t take steps until after their rights were extinguished
  

RULE

TEST in order to set aside default judgment [para 14]:

1. 
   Failure to file the appearance or statement of defence was not wilful or deliberate
   
2. 
   The application to set aside the judgment was made as soon as reasonably possible
   
3. 
   There is a meritorious defence or at least a defence worthy of investigation
   
4. 
   Everything must be supported by admissible affidavit evidence* [sometimes first 3]
   

ANALYSIS

• 
  The defendant banks gave no evidence as to why their failure to file a claim was not done.
  
• 
  Although they filed a claim once they had reasonably learned about it, they still did not satisfy step three as the onus was on them to put forward affidavit evidence proving or at least hinting that the money belongs to them or that the relationship with the money was worthy of investigation.
  
• 
  It requires more than merely making a claim and sitting back and hoping for the best.
  

HOLDING - Claim to set aside default judgment denied.

2) Striking Pleadings – Rule 9-5

Rule 9-5 – p.35

Striking a pleading is accomplished through an interlocutory application in chambers.

At any time the court may order pleadings to be struck out on the grounds that:

1. 
   It discloses no reasonable claim or defence, as the case may be (most used)
   
2. 
   It is unnecessary, scandalous, frivolous or vexatious
   
3. 
   It may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or
   
4. 
   It is otherwise an abuse of the process of the court (most used)
   

Rule 9-5 is an attack on pleadings on basis that action/defence, cannot succeed as a matter of law – and only that. It is concerned with the sufficiency of pleadings.

Rationale for Striking Pleadings

• 
  Pre-trial proceedings and trial itself are unnecessary if the P’s pleading does not set out a claim that is legally recognized or D’s response to civil claim are not valid.
  

• 
  BUT Judges are reluctant to striking pleadings and it is a VERY high threshold to do so. This is b/c striking it at this stage doesn't get to decide the case on its merits and is struck out early in the process. Judges want claims heard on its merits, and not kicked out just based on a technicality
  

Jane Doe v Metropolitan Toronto

A novel claim may proceed as long as the below pre-requisite test is made out *mackey likes*

FACTS

• 
  Jane Doe was raped by an intruder who had been committing serial rapes in her community to people who match her description.
  
• 
  J said that the police failed to protect her and as a result she was harmed as they knew the profile of women the raper wanted and didn't do anything in fear of causing panic in the community as a policy reason, and basically held her out as bait. J sued police.
  
• 
  Jane’s had her first pleadings amended after a motion to strike was filed, the same thing happened again, she managed to get her pleadings through.
  

ISSUE

If the law does not recognize a claim, does that mean the pleading has no reasonable cause of action

If the pleading did have a cause of action, were the necessary material facts made out?
RULE

A novel claim may proceed as long as the below pre-requisite test is made out and the pleadings support a possible finding of a cause of action with success to possibly follow.

Points about pleadings that will transcend jurisdictions across on CAN on Rule 9-5(1)(a)

1. 
   Pleadings must disclose a cause of action founded in law so as long as the criteria is met, the novelty of the case is no concern
   
2. 
   In determining if a cause of action exists, material facts are assumed to be proven, but this principle does not apply if it’s based on assumption/speculation incapable of proof.
   
3. 
   The statement of claim must be as read generously as possible – with a view to accommodating any inadequacies in the form of allegations due to drafting deficiencies
   
4. 
   If the facts are taken as proved to be a reasonable cause of action, which is with some chance of success, the action may proceed
   

ANALYSIS

D’s said that policy decision will not attract liability in tort – and that this has been upheld by SCC

• 
  COURT SAYS – this distinction will be important at trial but does not affect the validity of pleadings now so early on – facts pleaded still support a claim
  

The threshold for the pleadings were satisfied due to her characterization of the proximity and of her being used as bait. Although her claim was not as specific as it could have been, she impliedly pointed to the proximate relationship and the fact that their policy decisions led to her injury. When read generously, the pleadings stand.

HOLDING

Plaintiff can go to trial, no need to amend.