LSO - Barrister & Solicitor – Civil Litigation LSO - Barrister & Solicitor – Civil litigation
Table of Contents 16. Jurisdiction and org of the courts of ON
1. Org of the courts of ON
16. Jurisdiction and org of the courts of ON 2 26. Disposition w/out TR 33
The Court of ON has two divisions:
17. L'-C' relationship 5 27. Subsidiary claims — counterclaims, 39
SCJ (the higher or general division)
crossclaims, and 3P claims
is a higher court and hears more serious cases, such as:
18. Privacy issues and litigation 6 28. Motions 45
Serious criminal offences
19. Prelim matters to consider before 7 29. Discovery 51
Divorces
commencing proceedings
Civil cases involving large amounts of money
20. Parties: 人 s who can sue and be sued 9 30 Offers to settle and pre-TR procedures 63
Challenges to the CA Charter
21. Joinder and interventions 16 31. Preparing for TR: marshalling the 70 DC, Family Court and Small Claims Court are specialized branches w/in SCJ
evidence OCJ (the lower or provincial division)
22. Commencement of proceedings 19 32 TR procedure 74 hears cases such as:
23. Apps 22 33. Judgments, orders, appeals, 81 Criminal offences except the most serious offences
enforcement, and costs Pre-trial hearings (prelim hearings) in criminal cases that will go to the
24. Service of process 25 34. Alternative Dispute Resolution 90 Superior Court
25. Pleadings 27 35 Simplified procedure under Rule 76 95 Violations of provincial laws
CoA for ON
Glossary highest level of court in ON and hears appeals from SCJ and OCJ
The Law Society of Ontario / Law Society of the Trial Judge: TJ United Nations: UN
Ontario: LSO the Crown: ♕ Youth Criminal Justice Act Fewer than two per cent of the court’s decisions are heard by SCC, so CoA is effectively the
Chief Executive Officer: CEO year: yr Canada / Canadian: CA last avenue of appeal for most litigants.
the Rules of Civil Procedure: RCP Witnesses: Wes alternative dispute resolution: ADR
Lawyer / Licensee: L maximum: max
1.1 Language
Witness: W
Client: C Corporation: corp minimum: min The official languages of the courts of ON are English and French
By-Law / By law: BL the Judge: J' person: 人 A party who speaks French has the right to require that the matter be conducted as a bilingual
Government: gov Plaintiff: P> Common law: CL proceeding
people: ppl Claimant: C> the Federal Court: FC
Organization: org' Defendant: >D the administrative decision maker: ADM 1.2 Part I — CoA for ON
Information: info Ontario: ON
third party: 3P
administrative law: AL Proceeding heard by no fewer than 3 judges sitting together (always uneven)
examination: exam' Minister of: M of
business: biz Respondent: >R Beyond a reasonable doubt: BaRD
Motions: heard and determined by one judge, w/ the exception of a motion for leave to appeal,
between: b/w ,000,000 m United States: The U.S. a motion to quash an appeal, or any other motion specified by RCP
with: w/ ,000: k Dispute resolution: DR
without: w/o days: d' A single judge may adjourn a motion to a panel of CoA, and where a motion is heard by one
Family Law Act: FLA
Criminal Code / "The Code": CC documentation / documentary / document: Divorce Act: DA judge, a panel of CoA may, on motion, set aside or vary the decision.
the Ontario Court of Justice: OCJ doc
the Superior Court of Justice: SCJ
Department of Justice: DoJ 1.3 Part II — Court of ON
Evidence Act: EA Principle of Natural Justice: PNJ
the Supreme Court of Canada: SCC preliminary: prelim Charter of Rights and Freedoms: Charter
Chief Justice of SCJ is also the president of the Court of ON (s. 10(3)), SCJ (s. 12(1)(a)), DC (s. 18(2)),
the Attorney General: AG the Small Claims Court: SmallCC common law: CL Family Court (s. 21.2(1)(a)), and Small Claims Court (s. 22(2)).
judicial review: JR juridical review: JR Principles of natural justice : PNJ 1.3.1 SCJ
Divisional Court: DC ON: Ontario Courts of Justice Act: CJA
the Court of Appeal: CoA British Columbia: BC Every proceeding in SCJ is heard and determined by one judge (except for DC matters)
also has some jurisdiction in appeals, including an appeal from an interlocutory order of an
A step-by-step guide to hacking the licensing exams associate judge (s. 17(a)) and an appeal from the assessment of costs in proceedings in SCJ
1. Read this thoroughly, understand this material fully on an issue in respect of which an objection has been served pursuant to the Rules
2. Try practice questions (timed!) with the LSO materials, not this one.: I used this one: Associate judges have jurisdiction to hear motions, except a motion:
https://accessbarprep.com/ pretty good but I'm sure others are fine too; make sure you try a full-length sample reserved to a judge by statute or rule;
exam, at least one for each exam
to set aside, vary, or amend the order of a judge;
3. Go over wrong questions and understand them fully.
to abridge or extend time prescribed by an order that an associate judge could not have made;
4. LSO website also have a couple of sample questions you should try: https://lso.ca/becoming-licensed/lawyer-
for judgment on consent in favour of or against a party under disability;
licensing-process/licensing-examinations/sample-examination-questions
relating to the liberty of a subject;
5. I didn't create my own TOC and solely relied on Law Society materials for the exam, they are detailed enough
under s. 4 or 5 of the JR Procedure Act (JRPA); or
for exam purposes. DO NOT bring this material to the exam site except for illustration purposes. You need
proper a DTOC!
in an appeal
6. If you do all of the above, I am 100% sure you'll pass. While judges have jurisdiction to hear any motion in a proceeding, in the centres where
associate judges are present (permanently or by schedule), a motion that is w/in the
jurisdiction of an associate judge shall be heard by an associate judge
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,LSO - Barrister & Solicitor – Civil litigation LSO - Barrister & Solicitor – Civil litigation
Assessment officers are appointed pursuant to s. 90(1) of the CJA and have jurisdiction to Every proceeding in OCJ is heard and determined by one judge
assess costs of any court proceeding A justice of the peace may preside over OCJ in a proceeding under the Provincial Offences
Registrars now exercise considerable authority to make certain specified orders on consent, Act
except where one of the parties is under a disability (r. 37.02(3)). Consequently, before the Except for proceedings under CC or the Provincial Offences Act, if no provision is made
registrar can act, the consent must state that no party is under a disability otherwise, appeal lies to SCJ
Consent orders may be made by the registrar for the amendment of a pleading, notice of 1.3.3 Specialized courts: Toronto Region
application or notice of motion; addition, deletion, or substitution of a party; removal of a L (a) The Commercial List
as L of record; setting aside the noting in default of a party in default; setting aside a default specialized section of SCJ in the Toronto region for the hearing of certain actions,
judgment; discharge of a certificate of pending litigation; security for costs in a specified applications, and motions involving issues of commercial law on a voluntary basis (except for
amount; re-attendance of a W to answer questions on an exam'; fulfillment of undertakings bankruptcy matters, which must be heard on the Commercial List)
given on an exam'; and dismissal of a proceeding w/ or w/out costs. A motion made “to the governed by the frequently revised Consolidated Practice Direction Concerning the
court” w/in the jurisdiction of a registrar will be dealt w/ by a registrar. Commercial List
(a) DC also include cross-border proceedings involving commercial and insolvency matters.
exercises appellate jurisdiction pursuant to s. 19 of the CJA objective of the Commercial List is the rapid resolution of cases - judges are encouraged to
In addition to its appellate functions, DC also exercises original jurisdiction in applications make a fast judgment
for JR of administrative actions (b) The Estates List
Chief Justice of SCJ is the president of DC concerned w/ contested matters involving wills, powers of attorney, trusts, estates,
Proceedings in DC are heard and determined by three judges sitting together Succession Law Reform Act claims, applications relating to mental incompetency, and the
One judge may preside where the appeal is from a final decision of an associate judge; the like in Toronto
appeal is from a final order of smallCC by a provincial court judge, a deputy judge in smallCC, 1.3.4 Case management
or smallCC Administrative Judge where the amount in issue or the value of the property in system designed to reduce unnecessary delay and cost, facilitate early and fair settlements,
issue exceeds $3,500 in value; or the matter is one that the Chief Justice of SCJ or a judge and bring cases promptly to a just conclusion
designated by that Chief Justice is satisfied that it ought to be determined by one judge for Features of case management:
reasons of expedition and the nature of the issues involved the power of J or associate judge to extend or abridge a time prescribed by an order or the
motion in DC must be heard by one judge unless the rules of court provide otherwise, rules, set timetables, make orders, impose terms, and give directions as necessary (r. 77.04);
although J may adjourn the motion to a panel of DC the case management conference (r. 77.08);
A panel of DC may, on motion, set aside or vary the decision of the single judge the possibility for a single judge to direct all case- managed steps in the proceeding (r. 77.06);
(b) Small Claims Court and
has jurisdiction where the amount in issue or the value of the property in issue does not the streamlined motion procedure (r. 77.07)
exceed $35k 1.3.5 Simplified procedure
In a case w/ a counterclaim, the court can hear a case w/ a $35k P>’s claim and a $35k >D’s Under R. 76, a simplified procedure applies on a mandatory basis to any action where P> is
claim, thereby putting $70k in dispute in smallCC. claiming $200k or less (excl. interest and costs) for money or real or personal property
does not have jurisdiction to try actions that exceed this monetary limit, even w/ the does not apply to class proceedings, construction liens (although trust claims under the
consent of the parties Construction Act can be brought under the simplified procedure), case-managed actions
Even if the amount in dispute exceeds $35k, if the net claim is w/in the threshold may still be under R. 77, and where a jury notice has been delivered in a claim for slander, libel, malicious
able to arrest, malicious prosecution, or false imprisonment (rr. 76.01(1) and 76.02.1(2)).
Small Claims Court does have jurisdiction to grant equitable relief where the amount of can also be used on an optional basis where the amount claimed by P> exceeds $200k if >D
money or value of property in issue is w/in the monetary limit of smallCC. does not object to the simplified procedure in the statement of defence
Small Claims Court could hear a suit against the federal Crown that was w/in its monetary Even if >D objects, P> can continue under the simplified procedure by abandoning the
jurisdiction. amount of the claim in excess of $200k in the reply
Every judge of SCJ is also a judge of smallCC 1.4 COVID-19 pandemic: adaptations
relaxed rules of evidence and empowers the court to admit any oral testimony and any doc
or other thing, so long as the evidence is relevant to the subject matter of the proceeding
court will not admit testimony, docs, or other things that would otherwise be inadmissible
by reason of any privilege under the law of evidence (e.g., L-C or public-interest privilege) or
that are inadmissible by any statute.
An appeal lies to DC from a final order of smallCC in an action for the payment of money in
excess of $3,500 (excluding costs) or the recovery of possession of personal property
exceeding $3,500 in value
no appeal is permitted where the amount does not meet that min requirement
1.3.2 OCJ
This court is also a youth justice court for the purposes of the Youth Criminal Justice Act
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,LSO - Barrister & Solicitor – Civil litigation LSO - Barrister & Solicitor – Civil litigation
17. The L-C relationship 18. Privacy issues and litigation
PIPEDA applies to orgs that collect, use, or disclose personal info in the course of commercial activities
1. Introduction PIPEDA will not apply where litigation is b/w two 人 s and the matter is of a personal nature
2. L must have authority to act
IPEDA may apply in the context of litigation where the dispute is b/w commercial entities
By commencing or continuing a legal proceeding, a L is deemed to have that authority
1. Gathering evidence for litigation
RCP enables a 人 served w/ an originating process to deliver a request requiring the L named in the Orgs are permitted to collect personal info through surveillance if collection falls under one of the
originating process to deliver a notice declaring whether the L commenced or authorized the exceptions contained in s. 7(1)(b) of PIPEDA and purposes of collection through surveillance are
commencement of the proceeding or the C authorized the commencement of the proceeding reasonable
If a L has commenced a proceeding w/out the C’s authority, a motion may be brought to stay or an org can collect an 人’s personal info w/out the 人’s knowledge or consent where it is reasonable to
dismiss the proceeding
expect that the 人’s knowledge or consent would compromise the info’s availability or accuracy and
court may order the L to personally pay the costs of the proceeding
L may be liable in an action for damages for breach of warranty of authority. the collection is reasonable for investigating a breach of an agreement or a contravention of CA or
3. C must have capacity provincial laws.
2. Pleadings
An action by a party under disability (e.g., a minor or a 人 who is mentally incapable) must be
Pleadings should only contain min amount of 人 info is necessary to properly describe t claim or
commenced or continued by a litigation guardian.
An action commenced by an undischarged bankrupt is generally a nullity, although there are defence
exceptions, such as where the claim is for damages for wrongful dismissal or is personal in nature 3. Discovery
(e.g., for pain and suffering or mental distress) rather than proprietary An important rule to consider when conducting discovery is the deemed or implied undertaking rule.
This rule provides that all parties and their Ls are deemed to undertake not to use evidence or info
where an 人 dies after the litigation is commenced; the L’s C no longer “exists,” and the L may only
obtained during discovery for any purposes other than for the proceeding in which it is disclosed
continue acting if the estate (through the legal representative) authorizes the L to do so.
4. Factums
4. Communicating w/ Cs
SCC has stated that Ls should avoid including in factums info subject to a publication ban or personal
must communicate to the C that litigation is very expensive, time consuming, and stressful
data identifiers or personal info that, if combined w/ the 人’s name and made widely accessible to the
5. Encourage compromise or settlement and awareness of ADR
A L should keep the C informed of alternatives to litigation at all stages of a proceeding. public, could pose a serious threat to the 人’s personal security
All Ls have a duty, pursuant to r. 3.2-4 of the Rules of Professional Conduct, to encourage a C to non-exhaustive list of examples of personal data identifiers or personal info that could compromise
compromise or settle a dispute whenever it is possible to do so on a reasonable basis and to
an 人’s personal security:
discourage a C from commencing or continuing useless proceedings
home addresses;
6. Withdrawal of service
Rule 15.04 of the Rules sets out the process to follow in bringing a motion for removal as L of record, social insurance numbers;
which should only be pursued by the L after the L’s professional requirements under s. 3.7 of the account numbers for bank accounts, lines of credit,
Rules of Professional Conduct have been satisfied. or credit cards; and
medical records.
An 人’s name on its own is not considered to be a 人 data identifier.
5. Publishing findings
PIPEDA permits certain publicly available info to be used and disclosed w/out consent, including
personal info that appears in a record or doc of a judicial or quasi-judicial body, that is available to the
public, where the collection, use, and disclosure of the personal info relate directly to the purpose for
which the info appears in the record or doc
Ls should be cautious about publishing the Commissioner’s reports or disclosing any personal info
(that is not publicly available in a record or doc of a judicial or quasi-judicial body) when publishing
info on their websites, newsletters, or other communications. Ls should consider anonymizing or de-
identifying personal info in any resources on which they rely.
6. Access and solicitor-C privilege
Ls should advise their Cs that all orgs must respond to—but not necessarily provide access in
response to—all requests. A common ground for refusing access to info prior to or during the course
of litigation is solicitor-C privilege
Commissioner is not permitted to compel the production of records for which solicitor-C privilege is
claimed. If the Commissioner deems it appropriate, the Commissioner may apply to FC for a hearing
on the matter
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, LSO - Barrister & Solicitor – Civil litigation LSO - Barrister & Solicitor – Civil litigation
19. Prelim matters to consider before commencing proceedings basic limitation period of two yrs running from the day when a claim is discovered.
"Discovery": earlier of the day on which the 人 w/ the claim first knew or the day on which a
1. Introduction
reasonable 人 w/ the abilities and in the circumstances of the 人 w/ the claim first ought to have
2. General principles of RCP
known of the matters referred to in clause
The Rules govern litigation in ON and must be interpreted to secure the just, most expeditious, and
least expensive outcome rebuttable presumption that P> discovered the matters referred to in s. 5(1)(a) on the day the act or
omission on which the claim is based took place
court shall make orders and issue directions that are proportionate to the importance and complexity
of the issues raised and to the amounts involved. “ultimate limitation period” of 15 yrs running from the day on which the act or omission on which the
failure to comply w/ these rules is an irregularity that can be remedied by seeking direction from the claim is based took place.
court, which will ensure the just determination of the substantive matters in dispute. do not run during any time in which the 人 w/ the claim (i) is a minor and not represented by a
2.1 Computation of time litigation guardian (ss. 6 and 15(4)(b)); or (ii) is incapable of commencing a proceeding because of a
Do not count the day the first event happened, but count the day the last event happened physical, mental, or psychological condition and is not represented by a litigation guardian
if served w/ a statement of claim on June 1 (first event) and the statement of defence is certain proceedings w/ respect to which there is no limitation period at all, such as claims based on
due 20 days later (last event), start counting “day 1” from June 2, not June 1. Therefore, sexual assault (s. 16(1)(h)), claims based on sexual misconduct where, at the time of the misconduct,
the statement of defence is due on June 21. (1+20=21_ the 人 w/ the claim was a minor (s. 16(1)(h.1)), claims to recover taxes owed to ♕ (s. 16(1)(i)(i)), claims
Where a period of time of seven days or less is prescribed, holidays shall not be counted. for support under the FLA (s. 16(1)(c)), and undiscovered environmental claims (s. 17).
Where a deadline occurs on a holiday, the act may be done on the following day that is 7.1 COVID-19 pandemic: limitation periods suspended from March 16, 2020, to September 13, 2020
not a holiday
suspended the limitation periods in ON (as well as procedural deadlines for court and tribunal
3. Causes of action
proceedings) from March 16 to September 13, 2020
set of facts and legal elements that justifies the right to sue to obtain damages, property, or the 8. Limitation of liability
enforcement of a right.
A further matter to consider in commencing a claim is whether damages may be limited by statutory
4. Demand before action
enactment
In certain cases, an action brought before a demand is made will be premature since there has not 9. Interest on judgments
been an accrual of the cause of action.
In ON, the CJA specifies when interest may be included in judgments and at what rate.
So note the different scenarios and requirements of each case
9.1 Prejudgment interest
Certain statutes also require that a demand be made before a right to commence an action arises. e.g.
人 entitled to an order for the payment of money is entitled to claim and have included in
s. 2 of the Solicitors Act requires that a L wait at least one month after delivery of the L’s bill for
payment before commencing an action for recovery of fees, charges, or disbursements. the order an award of interest on the monetary award at the prejudgment interest rate.
5. Notice required by statute calculated from the date when the cause of action arose to the date of the order
Several statutes require notice to be given before an action or proceeding can be brought. - again note Note there are exceptions to the general rule that the prejudgment interest rate is the
the varying requirements bank rate
6. Notice of constitutional question 9.2 Postjudgment interest
If the constitutional validity or applicability of any Act of Parliament or the ON Legislature, any Interest accrues on any money owing under an order, including costs, at the
regulation or by-law made under such an Act, or any rule of CL will be raised in any action or other postjudgment interest rate, calculated from the date of the orde
proceeding, notice must be given to AG of CA and AG of ONm/#/239180b0e0ab bank rate at the end of the first day of the last month of the quarter preceding the
requirement for notice of constitutional issues applies to proceedings before boards and tribunals as quarter in which the date of the order falls, rounded to the next higher whole number
well as to court proceedings where the bank rate includes a fraction, plus 1%.
notice requirement applies not just to questions of constitutional validity or applicability but also to 9.3 Discretion of the court
proceedings where a remedy is claimed under the CA Charter Court has discretion to (a) disallow prejudgment or postjudgment interest, (b) allow
A notice of constitutional question must be served in Form 4F pursuant to r. 4.11 of the Rules and prejudgment or postjudgment interest at a higher or lower rate than that provided for,
shall be served as soon as possible, but at least 15 days before the day when the question is to be and (c) allow prejudgment or postjudgment interest for a period other than that provided
argued for.
A decision made regarding the constitutionality of any Act, regulation, by-law, or rule of CL will be 10. Choice of procedure
invalid if the required notice is not served consideration must be given before any action is commenced as to the desirability of proceeding by
7. Limitation of actions way of the simplified procedure, whether or not a claim exceeds $200k.
An action must be issued before the expiry of a limitation period or it will be time barred. - applies to 11. Small Claims Court
most claims pursued in court proceedings For any claim that does not exceed $35k (exclusive of legal fees, disbursements, and interest),
There are other ON (and federal statutes) that also impose limitation periods consideration must also be given prior to commencing the proceeding as to whether the proceeding
LA applies to all claims other than proceedings commenced under statutes listed in s. 2. The claims should be brought in smallCC, which has its own rules of procedure
that are excluded from application of the LA, 2002 include claims based on Aboriginal rights (s. 12. Method of attendance at hearings
2(1)(e)).
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