Civil procedure

1. Introduction

Hryniak v Mauldin (para 23 – 33)

[Culture shift in A2J; Summary Judgment]

FACTS

Group of American investors met with H to discuss investment opportunities. They wired him $1.2 million with other pools combined to be about 10 mil. H’s company forwarded the money to an offshore bank and the money disappeared. Investors brought an action for civil fraud and asked for summary judgment.

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  TJ – Trial was not needed based on evidence and ordered summary judgment
  
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  Appeal – dismissed H’s appeal
  

RULE

The civil justice system is premised upon the value that the process of adjudication must be fair and just.

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  Proportionality principle is a touchstone for access to civil justice – the process cannot be disproportionate to the nature of the dispute and interests involved, then it will not achieve a fair and just result
  
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  Main question to ask – whether the added expense & delay of fact finding at trial is necessary to a fair process and just adjudication  If yes, then it must be pursued.
  

ANALYSIS

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  Full trial (from its unnecessary expense, delay) can actually prevent the fair & just resolution, b/c most Canadians cannot afford the access to adjudication of civil disputes.
  
  • 
    Full trials should be the exception, and as a last resort if it can be avoided
    
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  There’s a growing need for a balance b/w proportionate procedures for adjudication; that process can be fair & just w/o the expense and delay of trial
  

On Summary Proceedings:

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  As long as summary proceedings are fair and just, they serve the purpose of allowing justice to be done. Additionally, the response to certain proceedings is proportional both by the rules and at CL. If a matter can be dealt with summarily and this is a proportional response to the facts and law at hand, this should be pursued.
  

On Access to Justice

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  Civil justice system premised upon value that process of adjudication must be fair & just
  
  • 
    Most people cant afford lengthy trials now, or even cost of lawyers. Alternatives are now springing up (DR, self-representation)
    
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  A proper balance requires a simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges
  
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  Principal goal: a fair process that results in a just adjudication of disputes; a fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found.
  
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  We need a culture shift which req judges to actively manage the legal process in line with the principle of proportionality.
  
  • 
    A claim may involve an extensive record and sig commitment and expense … however even slow and expensive procedures can be proportionate when they are the fastest and most efficient alternative
    

2. Civil Litigation in Context: A2J & Advanced costs

TOPICS:

Adversarial & Inquisitorial Systems

Legal Fees

Access to Justice

Advanced Costs

Costs in Pro Bono Cases

RULE 1-3 – Object of Rules

Pg. 3

Object

1. 
   The object of these Supreme Court Civil Rules of courts is to provide a JUST, SPEEDY & INEXPENSIVE decision based on a determination on its merits (and not based on a technicality)
   

Proportionality

2. 
   Securing the just, speedy, and inexpensive determination of a proceeding on its merit includes, so far as practicable, conducting the proceeding in ways that are proportionate to:
   

1. 
   The amt involved in the proceedings
   
2. 
   The importance of the issues in dispute
   
3. 
   The complexity of the proceeding
   

History of the English Rule of Law

** something to think about: the intersection b/ procedure and substantive legal rights

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  for the most part those lines are blurred;
  
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  Procedure Law= how; the rules of the game
  
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  Substance Law= what; learning the fundamental of the skills involved
  

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  IN THE PAST: judges travelled around and dealt with cases on a case by case basis – using their own precedent
  
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    In England much of the political authority was given to judges whose job it was to do justice between whichever parties appeared before the court
    
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    The system of writs – archaic in their procedural requirements
    
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    At the beginning about 75 diff writs for whatever you wanted to achieve in court … each with its own procedures that would govern how adjudication would take place before a judge of British high court to seeking that remedy
    
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    That common law system, from its origins, became heavily procedural. You had to do certain things procedurally speaking in order to put yourself in a position to get the remedy you wanted form a judge
    
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    If you didn’t take the procedural steps, even if in some sense of fairness, you ought to be entitled to that remedy you wouldn’t get it
    
  • 
    British CL system, procedure hi-jacked concepts of fairness
    
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  COURT OF EQUITY: To remedy the unfair results of the common law, the King develops the Court of Chancery (Equity)
  
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    Here the opposite started to take place – procedures were almost non-existent; you had fairness as the ultimate arbitrator; fairness, equity, justice and natural law govered this Court
    

From the 1800’s:

BOTH COURTS BECAME FUSED, LAW/EQUITY COMBINED  EACH SYSTEM CONTRIBUTES TO THE HYBRID SYSTEM WITH SOME FAIRNESS & EQUITY + SOME PROCEDURE FROM CL