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The class notes of summer 2021 for Civil Procedure with Prof. Mackey.
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DTN 725 – PROCÉDURE CIVILE/CIVIL PROCEDUREClass 1
Banc in appeal:
1-judge appeal: procedural matter, not an appeal on the merits
3-judge appeal: typical appeal on the merits
5-judge appeal: the appellant asks the court to overturn its own precedent
Hryniak v. Mauldin (2014 – CSC) (p. 652, [23-33]) – access to justice
[23] Our civil justice system is premised upon the value that the process of
adjudication must be fair and just.
[24] The full trial has become largely illusory because, except where government
funding is available, ordinary Canadians cannot afford to access the adjudication
of civil disputes.
o Lawyers have to be creative to try and get a just result without requiring a
trial on the merits (mediation, dispute resolution, etc.).
Litigation is a last result. Litigation is not a wholly beneficial
human endeavor.
[28] 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.
However, that process is illusory unless it is also accessible – proportionate,
timely and affordable.
[32] This culture shift requires judges to actively manage the legal process in line
with the principle of proportionality.
The Courts, Procedure, the Common law & the Adversary System, pp. 1-39
I. Introduction
“Procedural law brings substantive law to life and enables rights and duties to be
enforced and defended.”
Three basic subject areas: (p. 2)
The common law
o The first context is historical and theoretical.
The adversary system
o The second context is comparative and cross-cultural.
Under the common law system, judges are completely impartial
under the adversary (common law) system whereas judges are
more active in the inquisitorial system.
Litigation and dispute resolution
o The third context is pragmatic and sociological.
II. Procedure and the Common Law
1
,The study of procedural law focuses on the processes by which civil disputes are
resolved.
- Understanding the procedural law helps to ensure the efficacy of substantive
rights.
Legal Traditions of the World, by Patrick Glenn (p. 3):
The reason why the CL developed (and is so weird as a legal system) is because
the French king sent judges to represent the king’s interest to a place where there was no
simplified legal tradition. This led to little pockets of regional practices to solve disputes.
The judges had to create the law from the ground up – there was no pre-existing system.
The CL was created almost exclusively by judges (judge-made law). Procedure is so
important in the CL system because judges created different procedures for different
remedies. One used to seek a writ – all kinds of writs depending on the remedy. Each writ
gave rise to a particular procedure to be followed, appropriate for the type of dispute.
There was no unified procedure.
Precedents codified legal procedure in a more consistent fashion.
Procedure rules have the force of law.
There is an interesting tension between the judiciary and the legislature. While one might
believe the judges are best positioned to create the rules of court, the legislature has the
rule-making power. The rules govern the legal rights, then in that sense the legislature
should be making the rules rather than the judiciary.
III. The Adversary System
Dispute processes are in large part a reflection of the culture in which they are embedded:
they are not an autonomous system that is predominantly the product of insulated
specialists and experts.
A. The Basic Premises
The adversary system was not the creation of statute nor was it implanted as the result of
a doctrinal choice but rather it grew and developed out of the soil, responding in a
practical way to the social, political and cultural needs of the people.
Sir Jack IH Jacob, The Fabric of English Civil Justice (p. 13)
Role of the Court:
The inactive, passive and non-interventionist role of the court in English civil
justice operates throughout the whole range of civil proceedings. This generalised
role is subject to important exceptions in which the court is under the duty to act
of its own motion and be active.
At the actual trial or hearing, the English court plays a dominating, positive and
interventionist role (open intervention for the search of the truth).
Role of the Parties:
2
, The passive role of the court becomes the active role of the parties and their
lawyers.
Inherent failings of the adversary system: hit and miss system, creates avoidable delays,
and increases the labour and the cost, introduces an element of sportsmanship,
accentuates the inequality in terms of resources and legal advice and representation
between the parties.
Neil Brooks, “The Judge and the Adversary System” (p. 19)
The adversary system rests on the principle of party-autonomy: the parties have the
right to pursue or dispose of their legal rights and remedies as they wish.
The principle of party-autonomy limits the judge’s function to disputes which
have been presented to him.
Parties have the sole responsibility for defining the dispute that they would like
adjudicated.
The judge only operates when the parties present him or her a dispute to resolve.
The adversary system rests on the principle of party-prosecution: the parties have the
primary responsibility (or rather the right) to choose, without interference from the judge,
the manner in which they go forward with their case and the proofs they will present for
the judge’s consideration in adjudicating the dispute.
(Prosecution: The process of taking a matter through the court.).
The adversary system increases the acceptability of adjudication due to (1) its
relationship to the prevalent political and economic theory, (2) its cathartic effect, (3) the
role of counsel and (4) its appearance of impartiality.
(1) The adversary system yields greater satisfaction to the litigants and others because
it is a procedure that is consistent with the prevalent social and political ideology of
western society (the adversarial system is largely consistent with prevalent political and
economic values). If you believe in the common law tradition, that the individual is the
import unit of our society, and the state exists to serve him, then the adversary system is
preferable. If you hold a corporate view of society, that the community is the important
unit, and that the citizen must be primarily considered as a part of the corporate unit, then
you should champion the inquisitorial system. The adversary system legitimizes,
necessitates, a self-interest role for the parties. Thus, one of its premises would appear to
be consistent with the premise of the capitalist system of economic organization that if
each individual strives to promote his self-interest an optimum allocation of resources
will result. It also affords the parties the opportunity to participate in the making of
decisions that affect their interests (supports the view that the most acceptable type of
decision un a democracy is personal choice).
The adversarial system, which places the power in the hands of the parties rather
than the judge, is a value that society is comfortable with (apparent distrust of the
state). The adversarial system which puts the judge in a position of “referee” can
be seen as an attempt to prevent abuses of political power (but can only prevent
abuses of political power so far – politically appointed judges still can have a final
say in a case and thus generate unfairness).
3
, (2) Cathartic effect: the adversary system might be a more acceptable procedure for
fact-finding than the inquisitorial system because it satisfies the psychology of the
litigants by legitimizing a courtroom duel. However, litigation is not a wholly beneficial
human endeavour. Even successful parties are drained (at least psychologically).
(3) Parties perceiving their attorneys as having interests convergent with their own
may experience a comforting strength (sense of shared purpose).
(4) The adversary system might be more acceptable than an inquisitorial system
because it gives the tribunal the appearance of impartiality.
A second justification given to the adversary system (in addition to increasing the
acceptability of adjudication) is that it is a better fact-finding mechanism than the
inquisitorial system. This rests on two premises: (1) the adversary system will result in a
more thorough investigation of the facts than the inquisitorial system, and (2) under the
adversarial system the trier of fact is more likely to reach the correct decision because
during the proceedings he will not acquire a bias towards one conclusion or the other.
(1) A judge will be more informed as to the facts when he makes his decision than
a judge in an inquisitorial system because parties who are given a free hand in pursuing
their perceived self-interest are more likely than an official motivated by only official
duty to transmit to the judge all evidence favourable to their case and to critically test all
unfavourable evidence (parties actively challenge each other’s facts) (argued that the
judge cannot know the case just as the parties do).
However, the best evidence might not be put forward in the case of self-
represented parties. Self-represented parties pose problem to the adversarial
system: put the judge out of his or her typically impartiality in order to take sides,
which creates unfairness.
B. The Civilian Counterpart
There are two fundamental differences between the common law and European systems:
(1) the court rather than the parties’ lawyers takes the main responsibility for gathering
and sifting evidence and (2) there is no distinction between pretrial and trial, between
discovering evidence and presenting it.
Inquisitorial role of the court: judges do all the questioning + impose expertise ($)
In the European system, the judge decides the adequate procedure and forces the parties
to spend money they would not otherwise spend.
The pertinence of the inquisitorial role appears when the defendant does not respond to
the claim and therefore does not present to the court the facts favorable to their cases
(when only the plaintiff’s version is put forward).
In the inquisitorial system, the judge can involve a party to intervene in the litigation in
order to serve the public interest.
C. The Interests of the Public
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