Civil procedure

5) Discontinuance and Withdrawal - Rule 9-8

Rule 9-8 – p.39

Discontinuing and withdrawing an action.

Another way to dispose of a proceeding, before a trial notice is actually filed with the Court.

6) Want of Prosecution – Rule 27-7(7)

Rule 27-7 (7) – p.68

• 
  Want of Prosecution – D can bring a out this motion, to dismiss the proceeding as P has taken their sweet time in the proceedings. It means that P has been dragging their feet, and so that the D can bring this want of prosecution to avail themselves of proceedings, and the Court can dismiss case in its entirety to prevent it from being continued to dragged out.
  

*Note: When you bring about this action, be wary that this might “wake up the P” and the judge might try and get this going as fast as possible, so this might actually work against you.

Tundra Helicopters v Alison Gas Turbine

[Requirements for dismissing action for want of prosecution Rule 22-7(7); Overturning WOP]

FACTS

P is appealing for an action for want of prosecution. Tundra rented a helicopter that crashed due to sudden loss of power. They are suing for damages. Many statements were offered, demand for discovery were filed but never answered by P. So, defendants filed for motion to dismiss for WOP. T

• 
  Dismissal for want of prosecution – case is dismissed for WOP on failure of party seeking relief to appear for any hearing/trial or failing to take any further action.
  

ISSUE - In what circumstances can courts overturn a dismissal of an action for WOP?

Does a failure to respond constitute an acquiescence?

RULE

Requirements for dismissing an action for a Want of Prosecution:

1. 
   There has been inordinate delay
   
2. 
   The inordinate delay that is inexcusable
   
3. 
   The delay has caused, or is likely to cause, serious prejudice to the applicant.
   

If those tests are met, the Court must go on to consider whether or not the balance of justice demands that the action should be dismissed.
Courts can overturn dismissal of an action on WOP if:

• 
  there is no clear prejudice to the defendants by reinstating the action; and
  
• 
  if there was not acquiescence or bad faith or on part of the P
  

ANALYSIS & HOLDING

Here, it did seem in D’s best interests to play the waiting game and did not amount to acquiescence. They were not prudent in moving the litigation forward. Also, there was no real prejudice to the D as this is a matter of pecuniary damages. Although some of the defendants old workers had died and some of them may have been key witnesses, on the BOP they weren’t proven to be useful and in conclusion, P should be able to remedy their default. Appeal allowed.

7. Discovery

TOPICS:

• 
  Document Discovery
  
• 
  Privilege
  
• 
  Examination for Discovery
  
• 
  Interrogatories

  
• 
  Pre-trial Examination of Witnesses
  
• 
  Implied Undertakings
  

History of Discovery

• 
  Modern discovery as we know it today, is linked to the Court of Equity/Chancery
  
• 
  Before 1854, no such thing as pre-trial discovery, - relied primarily on pleadings
  
  • 
    Used lengthy complex exchange of pleadings – and full disclosure would not be held until trial
    
• 
  Exchange of pleadings served this purpose, often complex. Became ritualized over time
  
• 
  Full disclosure would occur at trial, “surprise at trial” was not a valid object
  
• 
  15^th Century: Chancery Courts formed rules regarding revelation of facts and formulation of issues
  
• 
  18^th Century: Defendants answers were made by responses to written interrogatories (similar to affidavits)
  
  • 
    A limited discovery of documents was also available
    
• 
  England 1854: Rule changes allowed parties to obtain discovery of pre-trial documents in the possession of the opposing party. Were also allowed to send interrogatories in advance of the trial. All this was done without recourse to Chancery
  
  • 
    A party was entitled to seek discovery of facts supportive of their own case but not facts on which the opponent depended
    
  • 
    No longer necessary to commence suit in Chancery for purpose of obtaining discovery
    
    • 
      Plaintiff entitled to discovery as ancillary to claim
      
• 
  Ontario 1856: Adopted English rules. Chancery conducted oral discovery, common law by way of written interrogatory.
  
• 
  1873: Discovery by oral examination was introduced into common law courts
  

Discovery

Rule 7-1 to 7-6 - p.20 to 25

Discovery – the compulsory disclosure and production of documents relevant to the case

• 
  Discovery phase begins after pleading period ends  move from allegations on paper to sworn statements by the parties themselves
  
• 
  Object of discovery is to “discover” the other party’s case, more broadly, to further purpose of trial as a truth-finding exercise
  
• 
  Discovery is concerned with defining & refining legal issues b/w parties and facilitates an exchange of info & evidence between the parties – allows access to documents in other party’s possession that are relevant to claim/defence.
  
• 
  Discovery helps to isolate issues & facts where there is no material controversy & find genuine issues at trial
  
• 
  The law imposes an active duty of “continuing discovery” on both sides. If information becomes available at a later point, they must disclose it
  

• 
  NOTICE TO ADMIT
  

• 
  Modern rules permits a party at any time to serve on any other party a request to admit the truth of a fact or the authenticity of a document.
  
• 
  Often used on eve of trial to narrow issues
  

• 
  PURPOSES OF DISCOVERY:
  

• 
  Forces the proceeding to ascend from paper allegations by lawyers into SWORN statements by parties
  
  • 
    Thus when party subsequently acquires info that was unknown at time of discovery and did not disclose – law imposes obligation of continuing discovery that may require party to inform
    
• 
  To enable examining party to know the case he has to meet
  
• 
  To produce admissions to enable one to dispense with formal proof
  
• 
  To procure admissions which may destroy an opponents case
  
  • 
    Provides the lawyers the ability to assess the effectiveness/believability of their own client and the opposing parties client, and to assess the skill level of opposing counsel
    
• 
  To facilitate settlement, pretrial procedures and trials
  
• 
  To eliminate or narrow issues
  
  • 
    Helps to establish agreed upon facts, saves time & resources. Helps to highlight roads of inquiry
    
  • 
    Weeds out groundless claims and defences; helps determine if case should proceed or not
    
• 
  To avoid surprise at trial
  
  • 
    Pins party down to one version of the story - allows counsel to know how to examine certain witness
    

Also discovery fulfils ‘object of rules’ 1-3:

• 
  Just
  
  • 
    Allow litigants to gain more informed picture of litigation
    
  • 
    Ensures that decision through adjudication will be accurate and fair – looking at both sides of the story
    
• 
  Speedy
  
  • 
    Encourages better informed settlement wherever possible
    
  • 
    Assist in isolating issues/facts where there is No controversy (efficient)
    
  • 
    Allow a judge to look at relevant case on its merits – more complete case and minimize ignorance
    
• 
  Inexpensive
  
  • 
    Less expensive to have this information provided to them rather than having to find it themselves
    
• 
  Proportionality
  
  • 
    Can look at all aspects of the case and determine the context and what is required in proportion to what the case is about.
    

• 
  Two principal forms of discovery which are available as of right:
  

1. Document discovery

2. Oral examination for discovery

• 
  Following may also be used for discovery
  

3. Interrogatories – ONLY by consent of party being served or with leave of court

4. Physical examination

(1) Document Discovery – Rule 7-1

Rule 7-1 – p. 20

Document discovery – deals with compulsory disclosure & production of documents relevant to the case. It imposes ethical obligations on each party to make sure all relevant docs are produced.

• 
  After completing pleadings (typically disclosure occurs within 35 days of filing pleadings):
  

Each party is required to prepare a statement listing all documents (affidavit of documents) relevant to the proceedings that the party has OR formerly had in their control

• 
  But you must give what is relevant, no paper avalanche (Rule 7-1)
  

• 
  Opposing party is entitled to inspect & take copies of all documents listed to which the party making discovery takes no objection to producing (unless privileged  see below)
  

• 
  Rules of privilege protect certain documents from production, but even documents under privilege still needs to be listed, accompanied with grounds for refusal
  
  • 
    If there is a dispute on privilege, an application can be made by a party whether the judge decides if the document is privileged or not (see R v Campbell)
    

*Note: Rule 1-1 (1) defines document to mean photographs, film, recording of sound – any info of permanent/semi-permanent character and any info recorded/stored by means of any device
THRESHOLD FOR DISCLOSING DOCUMENTS  MATERIALITY STANDARD

Rule 7-1(a) - p.20

• 
  Rule7-1 (1)(a)(i) Threshold for disclosure = Must make a list of all documents which can be used to prove or disprove a material fact – often referred to as the materiality standard
  
• 
  Rule 7-1(a)(ii) – in addition to documents which can prove or disprove a material fact – party must disclose all other documents which it intends to refer to at trial
  

Cases: Additional discovery

RULE 7-1(11) – p.22

XY, LLC v Wang (2013)

[Discovery for more documents may be allowed, but in a specific manner;

Old Peruvian Guano discovery standard is too broad]

FACTS

P wanted disclosure to the old peruvian guano standard. Applied for a demand for more documents as per R 7-1(10)(11).**This case shows the shift from the old rules to the new rules: New (current) rules are trying to be more efficient **

RULE

The rule for discovery of more documents is codified in Rule 7-1(11), that is close to the Peruvian Guano disclosure

Demand for further documents must be done in a specific manner and accompanied by reasons the document would assist in proving a material fact

• 
  What constitutes specificity is not a stagnant threshold – it’s dependent on context of case
  
• 
  What is reasonable should be interpreted in context of an individual case
  

ANALYSIS

Court rejects their demand as it lacked specificity and did not comply with R 7-1(1) b/c only info that will assist in proving a material fact is required to be disclosed

• 
  Peruvian Guano standard required disclosure of documents that “may be relevant” standard. This was found to be overly broad = cost of document discovery disproportionate to amt at issue
  
• 
  New rules seek to mitigate this cost by introducing the concept of proportionality and new, higher, initial threshold for disclosure  Court now endorses approach which requires discovery of documents which would assist in providing material facts, and are specific
  
• 
  There must be a balance between “fishing expeditions” and impeding discovery of further documents.
  

CONCLUSION - Application for more discovery was dismissed

Edwards v Ganzer

[party may demand additional documents and amend the disclosure list; but Courts retain the discretion to limit production of documents for proportionality reasons]

FACTS

D applies for an order that P produces medical stuff pre-injury and undergo an independent medical exam.

RULE

The proportionality rule can be applied to either expand or restrict the required production of documents

• 
  Opposing party may issue written demand requiring listing party to amend R7-1(1) list and produce documents which ought to be disclosed under a test close to the peruvian guano Test.
  
• 
  The demand and response should be set out in writing addressing the terms and criteria used in R7-1(1). Whether a demand & response provide sufficient particularity is up to Court’s discretion
  

ANALYSIS

Ganzer (D) did meet the threshold for showing that they plead with enough specificity to be able to ask for the production of the pre-accident documents. However, the court retains discretion to limit the production of records for proportionality reasons. The vast majority of the damages are stemming from post injury ramifications, and while the pre-accident status helps to understand her background, it has little to do with the duty to mitigate.

• 
  Post-medical records are relevant,
  

The initial production obligation under Rule 7‐1(1)(a)(i) is limited to what is required to prove or disprove a material fact; b.   Rule 7‐1(10) allows the opposing party to issue a written demand requiring the listing party to amend the original list and produce documents that should have been disclosed under Rule 7‐1(1)(a)(i); c.   In addition, Rule 7‐1(11) allows the opposing party to issue a written demand requiring the listing party to amend the List and produce documents which ought to be disclosed under a test “close to” that set out in Peruvian Guano; d.  
The distinction between the two types of disclosure provided for under Rule 7‐1 is stated as follows:

The question is whether a document can properly be said to contain information which may enable the party requiring the document either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry, or if it may have either of those two consequences.    Therefore it is acknowledged that the initial disclosure under Rule 7‐1(1) relates to a materiality requirement, that a party can apply to the court , as the Defendant did here, for broader disclosure pursuant to Rule 7‐ 1(14). e. Both the demand by the requesting party and the response of the opposing party should be set out in writing addressing the terms and criteria used in Rule 7‐1.  Whether the demand and response provides sufficient particularity is a matter of the court’s discretion; f. If an application is brought under Rule 7‐1(13) for the listing or production of   documents, the court may either order compliance with the demand, excuse full compliance, or order partial compliance: Rule 7‐1(14); g.

The objectives of the SCCR, including proportionality, may be taken into account by the court when exercising its discretion under Rule 7‐1(14). The proportionality rule can be applied to either expand or restrict the required production of documents”
HOLDING

MSP produced from late 09’ (not early as requested), med profile supplied from date of accident to date.

(2) Oral Examination for Discovery – Rule 7-2

Rule 7-2 – p.22

Oral Examination for Discovery (EFD) – adversarial format of discovery where counsel cross-examine other party with respect to the information contained in the pleadings.

• 
  EFD allows each party to request their opponent to provide more complete statements of the basis for their claim/defence. Why is this the case?
  
  • 
    On discovery, a party is examined under oath and sworn to tell the truth – but allegations/denials in pleadings are NOT under oath
    
  • 
    The party can be asked to provide sworn answers as to the position they take on all point in issue in the litigation
    
  • 
    Enables parties to concentrate their energies on matter that are really in dispute – assists in fostering settlement
    
  • 
    A question CANNOT be asked on an EFD UNLESS it’s seeking a clarification of a point raised in pleadings OR is directed to establishing a fact (the existence/non-existence of fact shown by the pleadings to be at issue)
    

• 
  Use of Examination for Discovery
  

Discovery is an important evidence gathering tool, results of discovery can be used at trial in at least 2 ways:

1. 
   Use admissions made during discoveries as evidence at trial to prove facts in dispute
   
2. 
   Can be used to impeach credibility of witness.
   

 When conducting cross examination, point out inconsistencies b/w what they are saying at trial and what they said at discovery

*Note: Discovery is a pre-trial procedure – not available following trial but pending appeal

• 
  Scope of Examination
  

• 
  The scope of examination looks at pleadings only!!
  
• 
  2 primary purposes:
  

1) To obtain info about case of other party

2) to secure admissions of fact that can be used as evidence

• 
  Limitation - Rule 7-2(2)  an examination cannot exceed 7 hrs or any greater period to which the person being examined has consented
  

(3) Written Interrogatories – Rule 7-3

Rule 7-3 – p.25

Interrogatories (written)  examination by written questions

• 
  Conducted by delivering a list of written questions that must be answered in writing under OATH
  
• 
  Cheaper alternative to EFD but, less-valued info as answers are drafted carefully by lawyers
  

(4) Pre-Trial Examination of Witness – Rule 7-5

Rule 7-5 – p.26

Who may be examined?

A person who:

• 
  is not a party of record; and
  
• 
  may have material evidence relating to a matter in question in the action
  

Then the Court may order that person be examined under oath on the matters in question

• 
  Parties that are adverse to each other pre-trial, each have a right to examination of witness; this rule allows a pre-trial examination of a witness <*Note: this is not a discovery b/c it’s an examination of a 3^rd party, but is still similar b/c witness is under oath, in front of judge, etc>
  

(5) Physical Discovery – Rule 7-6

• 
  2 forms
  
  • 
    Inspection of property – useful in certain cases to inspect physical premises, articles or other things – the condition of which is relevant to the action (E.g. inspection of car to see if it is functioning – inspection of land to see what the state of it is)
    
  • 
    Medical examination – gives right to d to have P examined on D’s behalf
    
    • 
      Important in personal injury litigation. Provides independent medical info about p’s condition that would otherwise be unavailable to D
      

Implied Undertakings

Implied undertaking – means that all evidence that is discovered is to be used only for the purposes of litigation and can only be used for the proceedings in which it was tendered.

• 
  May be allowed to use the information for other things but must be with court permission
  

Important Points:

1. 
   Implied undertaking is to the court and not to the client, must respect courts processes
   
2. 
   If the case settles and never goes into Court, the Implied Undertaking survives settlement (cannot be used in any collateral way)
   

Rationales of Implied Undertaking of confidentiality:

1) Privacy of the litigant

• 
  court notes that the pre trial discovery in the justice system is clearly in no uncertain terms, an invasion of the parties privacy rights to be left alone.
  
• 
  Undertaking to protect the privacy of the litigants, therefore give privacy a measure of proctection.
  
• 
  The state compels disclosure regardless of the privacy, as there is a public interest to get to the truth which outweighs any individuals privacy.
  

2) Efficiency in the civil justice system.

• 
  In order to foster the most complete, transparent discovery process, the implied undertaking rule gives litigants some insurance that the docs they have to exchange and the answers given under oath won’t be used for any collateral purpose aside from the litigation itself.
  

Juman v Doucette

[implied undertakings]

FACTS

J had day care. D suffered brain injury while in her custody. D’s parents sued for damages for negligence. J claims that injuries came from previous injuries and not the incident. During the civil claim, Vancouver police launched a criminal investigation and wanted to see J’s discovery transcript. J brought an injunction to prevent D from giving out that info.

RULE

Both documentary and oral info obtained on discovery is subject to an implied undertaking that it not to be used by other parties except for in the purpose of litigation unless the court orders otherwise

• 
  The fact of the matter is, when you are talking about disclosure we have an inherent tension between trying to promote openness and the free exchange of documents to exchange easier litigation, while trying to balance that against the confidentiality and privacy interests that all citizens are meant to enjoy.
  
• 
  Special circumstances may arise where the courts allow the party to use the material in a manner that is broader than the litigation.
  

ANALYSIS & HOLDING

Van. Police are not entitled to obtain J’s discovery transcript subject to an implied undertaking.

The implied undertaking helps to serve a balance between the right of privacy and the need to encourage pre-trial knowledge in order to either pursue litigation/settlement and prevent trial by ambush. The public interest is strong and finding the truth, but J is still entitled to some privacy.

• 
  In the same way that solicitor client privilege encourages open discussion, the implied undertaking does as well if the person knows that whatever they say in discovery will stay within the confines of their litigation. They will provide better information and the truth seeking function of the discovery will be honoured. Just as in Solicitor Client privilege, there may be exceptional circumstances which dictate breaking the implied undertaking, but any application to do so must be done quickly and must show that the public interest is more important than the sanctity of the efficient conduct of the litigation and the privacy of the party being breached.
  

• 
  Here, the police even were trying to get permission to obtain a transcript to which they could not have received it otherwise due to a lack of jurisdiction to compel it. There were no exigent circumstances that compelled breaking or modifying the implied undertaking and since the accused has a right to silence (crimes exemption not allowed) in a criminal trial which should not be circumvented by the AG attempting to modify the implied undertaking, there is no reason to break the rules.
  

HOLDING

Appeal dismissed, injunction stands.