Civil procedure

Civil Litigation

Mackey - Litigation is not a beneficial human resource; it’s expensive, time-consuming, and increases anguish/pain
Justification of Civil Justice

• 
  Civil litigation allows us to protect our interests in more controlled and civilized ways.
  
• 
  It’s a behavioural modification tool, knowing we can go to court prevents violence
  
  • 
    i.e. ) Corporations/Businesses have incentive to be good, class action lawsuits are always looming overhead. Punitive damages may also be leveled against irresponsible companies.
    

Fairness Factors

1. 
   Timely Notice – Right to be informed when your rights are going to be affected (other than on ex parte basis)  Prevents fraudulent allocation of scarce judicial resources
   
2. 
   Right to be Heard: Adduce/Dispute evidence, make legal submissions
   
3. 
   Right to impartial judge and jury
   
4. 
   Right not to be bound by outcome of decisions we had no notice of
   
5. 
   Right to a reasoned decision
   
6. 
   Right to appeal
   
7. 
   Right not to be dragged through vexatious litigation
   

 Right to seek summary relief to prevent loss of resources through this litigation

How to Pursue a Civil Action

1. 
   Take Case
   
   1. 
      Is there a cause of action?
      
   2. 
      Is there a way to resolve without going to court? (Avoid winner take all risk)
      
   3. 
      Do you have the money to satisfy the claim?
      
2. 
   File Notice of Civil Claim
   
   1. 
      Wait for response to civil claim (within 14 days) – Party will either admit, deny or counteract claims
      
      1. 
         Defendants may elect to sue a third party if it isn’t their fault (3^rd party claims)
         
      2. 
         Defendants may elect to sue co-defendants (cross claims)
         
3. 
   Enter Discovery Phase
   
   1. 
      Conduct Examination for Discovery – Get access to relevant documents, figure out the strength of the case and what witnesses might say
      
      1. 
         Once discovered, most likely to settle here
         
4. 
   Go to Court (Trial)
   
   1. 
      May be in front of a judge or 8 person jury
      
   2. 
      Plaintiffs lawyers give theory of case
      
      1. 
         Bring up witnesses
         
      2. 
         Witnesses cross examined
         

 Defense may ask just for “insufficient evidence” motion if they contend that they do not have to do anything to win

1. 
   Defendants lawyers give theory of case
   
   1. 
      Bring up witnesses
      
1. 
   Judgment
   
2. 
   Appeal
   
   1. 
      Procedural Issue: Single Judge in Chambers
      
   2. 
      Traditional appeal: Panel of 3 judges
      
   3. 
      Appeal to overrule appellate court precedent: Panel of 5 judges
      
3. 
   SCC
   
   1. 
      Hears matters of public policy/nationally pressing issues
      
      1. 
         Sometimes results from competing rights/decisions between provinces
         

Law Reform Report – Action Committee on A2J in Civil & Family Matters

9 points on Access to Justice

1. 
   Refocus the Justice System to Reflect and Address Everyday Legal Problems
   
2. 
   Make essential legal services available to everyone
   
3. 
   Make courts & tribunals fully accessible – don't a courthouse just be a courthouse, but a mediation centre, etc., other sources
   
4. 
   Make coordinated & appropriate multi-disciplinary family resources available
   
5. 
   Create local and national A2J implementation mechanisms
   
6. 
   Promote a sustainable justice agenda through legal education
   
7. 
   Enhance innovation of civil justice system
   
8. 
   Research & funding goals: Support A2J Research to promote evidence –based policy making
   
9. 
   Promote coherent, integrated and sustained funding strategies
   

Inquisitorial System vs Adversarial System

In our adversarial system of civil justice, we have seen in BC that makes our system shift a little towards the inquisitorial model in the Supreme court civil rules.

The Adversarial System

**This is our current system of civil justice**

FEATURES IN THE ADVERSARIAL SYSTEM (our current system of civ justice) Fairness is achieved through “party prosecution” & “party autonomy”
(1) Party Prosecution	The parties prosecute. Parties decide what cause of action will be advanced. Ex – how many witnesses; Experts? No experts? Judges remain impartial and adjudicated neutrally *Comparison to Inquisitorial Judge makes all the above decisions  Judge prosecution
(2) Party Autonomy	Parties are free to bring the case they want to bring the Court. Parties are free from the influence of judge or other parties who want to intervene. What facts/law addressed are up to the parties to decide. Clients are the ultimate powerbroker – they’re in charge of their case, instructing lawyer give you agency, power over one’s rights, may even ignore lawyer’s advice
Additional Notes “Cathartic Effect of Going to Court”	Having one’s day in court does one’s heart good; there is a beneficial attribute to being wronged and indicating your rights This vindication may be best achieved when you’re left to your own devices and allowed to steer the litigation ship Mackey - Talking about A2J - litigation is expensive for the time energy, anguish and money it takes – difficult to argue that there is some aspect of catharcisim?

• 
  Methods of Adversarial system accord with cultural norms
  
  • 
    Legitimacy of adjudication is enhanced when conducted adversarially
    
    • 
      Adversarial system itself gives greater satisfaction to litigants due to it coinciding with ideas of individualism (cathartic effects) and law and economics efficiency ideals
      
    • 
      Judge as a neutral moral actor removes any state influence from the sit’n while still providing the overview of state legitimacy
      
  • 
    Regulation of court process is highly regulated
    
    • 
      Impartial judges avoid power usages that don’t fall in line with our modern ideals of democracy (judges unelected)
      
    • 
      Unelected judges serve to sever possible power imbalance should judge be elected and therefore hold political and legal power
      
    • 
      Emboldens peoples roles as independent autonomous actors
      
• 
  Parties motivated by self-interest will bring strongest cases to court
  
  • 
    Best Evidence will be furnished, best cross examination will be done
    
    • 
      Cross Examination is a truth engine, testing the validity of the other sides witnesses or evidence is in your best interest.
      
• 
  Assumptions about self interest are not perfect
  
  • 
    Both parties are theoretically interested in seeking the truth and relevant evidence. In reality, some people do not want the truth as it hinders their case
    
    • 
      Some parties will not have the same interest in the case proceeding, it will always mean less to one party or more to the other
      
  • 
    The adversarial system assumes both parties will maintain true interest in the case. It does not take into account people running out of time, money or interested
    
  • 
    Assumes equality of arms, adversarial system supposes it is the best for furnishing evidence and truth, this may be stunted by poor advocacy skills. Adjudication is thus imperfect as it does not have the true facts at all times
    
  • 
    All relevant interest are not represented
    
    • 
      Parties invariably bring their own interests, public interest is often ignored, externalities are often ignored
      
    • 
      Intervenors are the only mechanism through which public can be protected, judges do not allow themselves to dictate policy.
      
      • 
        Inquisitorial system avoids this through judicial participation
        
    • 
      All relevant issues may not be litigated due to financial and time concerns
      

Inquisitorial System

FEATURES IN THE INQUISITORIAL SYSTEM
(1) Judge Prosecution	Judges cross-examine the witnesses. Judge decides what legal avenues are to be pursued after the facts are presented and will decide P’s cause of action Court takes on role of evidence gatherer  Judges are the ones that goes to collect the evidence & gets to decide what expertise is needed Judges ask witnesses Qs, inform witnesses what to do/bring to Court
(2) System Breakdown	Judges are specially trained interventionists/moderators -This system also involved parties (ie; P and D and judge) These judges are inviting the parties to explain the case they respectively see it …then it is the judge who gathers the evidence and all the public bodies Ex - car accident: judge calls police asking for injury reports; hospital for injury reports; decides what expertise is needed Every case is looked at as a public interest case you have a judge that is empowered to care enough about your case that he/she may reasonably spend public resources to get the best available evidence towards what one hopes is a just outcome Ex - custody matter/ tort matter and limited by your own pocket books, there is a level of public funding that the judges can dip into to marshal better evidence
Additional Notes “Cathartic Effect of Going to Court”	Having one’s day in court does one’s heart good; there is a beneficial attribute to being wronged and indicating your rights Speaking on the “cathartic argument” – there is more beneficial impact, arguably, because the system, as a result of the public interest, will spend public funds in determining those cases

• 
  There is a diff level of public funding on what judges can do to marshall better evidence, if parties can’t afford it
  
• 
  In this system, judges are not trained as lawyers, but as moderators; and the judges are the one that goes to collect the evidence, and gets to decide what expertise is needed
  
• 
  Most notably, in Court it’s not the lawyers that cross-examine the witnesses, but the judge.
  

• 
  Judge decides which legal avenues to be pursued after being presented with the facts, will decide plaintiffs cause of action
  
  • 
    Court takes on role of evidence gatherer
    
  • 
    Judges ask witnesses questions, inform witnesses what to do/bring to court
    
• 
  Lawyer will file original documents to state case, but after that it is in the judges hands
  
  • 
    Lawyer may bring up additional questions to witnesses, plays secondary role
    
    • 
      Lawyers may push back against expert evidence and testimony
      

BC courts have adopted some rules that include the inquisitorial methods

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  Case management may start under certain circumstances
  
• 
  Document discovery is no longer a paper avalanche, court mandates you provide relevant info
  
• 
  Deeper pockets party doesn’t win by default due to discovery rules, constantly stalling for time to exhaust the resources of their opponent