Civil Procedure 1

CIVIL PROCEDURE
Professor Karen Busby
1994-95
Outline by Casey Chisick

I. COMMENCEMENT OF PROCEEDINGS

14.02 Proceedings shall be by action, unless otherwise required by statute or the rules.
Generally, when facts are not known or are likely to be contested.
Proceed by discovery process - resolution not likely in less than two years

14.05(2) Cases in which proceeding may be commenced by application (formerly originating notice of
motion).
14.05(2)(c) Specific types of relief for which applications may commence proceedings
Applications are also appropriate when facts are not in dispute
Proceed by affidavit evidence - resolution within weeks or months
Affidavit - written statement of enumerated evidence - carefully drawn to present ones case in the
most positive light possible, so not great evidence.

JURISDICTION:
Superior courts: general and inherent jurisdiction (e.g., Manitoba Q.B.)
Federal Court: limited and specific jurisdiction

LEGAL PERSONALITY: Who can sue?

Two kinds of legal persons: (1) Individuals (2) Corporations
Rules 5-13: exceptions allowing other types of persons to be sued.
Joinder: Rule 5
5.01 Joinder of claims
5.02(1) Multiple plaintiffs: claims arising out of same transaction, or common questions of
law, or where it will be convenient for the administration of justice.
5.02 (2) Multiple defendants: guidelines as in 5.02(1) plus when there is doubt as to who is to
be sued and when damage is caused by more than one party, regardless of factual connection
between the defendants.
Consolidation of proceedings: Rule 6
Parties under disability: Rule 7
7.02 Litigation guardians for parties under disability
Partnerships and other unincorporated entities: Rule 8
8.02 Partners to deliver a common defence
8.05 Disclosure of names of partners
8.08 Actions against sole proprietorships may be commenced using the name of the
business or of the proprietor.
8.09 Associations - unincorporated organizations of two or more people are for the
purpose of the rules considered as corporations.
Estates and Trusts: Rule 9
Representation Orders: Rule 10
Class Actions: Rule 12
numerous persons with the same interest may bring an action together, or one or more may
proceed on behalf of the others
Intervention: Rule 13
Representation by lawyer: Rule 15 (also duty of lawyer to continue, motions for removal
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TYPES OF PLEADINGS
Statement of claim
Statement of defence
Statement of defence and counter-claim
Statement of defence and third party claim
Cross-claim - one defendant sues a co-defendant

II. ETHICS OF ADVOCACY

An advocate is not merely a mouthpiece - doesnt necessarily take any position the client wants, but
rather advises the client as to the best possible route.

FEES
excessive fees = professional misconduct
Duty to client:
minimum fees possible
status reports
breakdown of fees
lawyer is responsible for paying any charges incurred on the clients behalf (RETAINER!)
formal relationship cannot be terminated without clients consent or court order, but client can fire
lawyer at any time, except at the eleventh hour.
inform client about availability of Legal Aid

NEGOTIATION
duty to be accurate and fair, and not to mislead other counsel regarding your clients wishes
unethical to settle based on false information, even if information changed after settlement was
already reached

DISCLOSURE
full disclosure is the rule - must even disclose the existence of those documents which you say the
opposition cant see.
full disclosure must be certified by client
duty to correct answers in examination for discovery if facts subsequently change

AT TRIAL
If client suddenly begins to present evidence contrary to what was previously said, lawyer must
request adjournment - cant assist in deceiving court.
The word of the lawyer, as an officer of the court, is automatically accepted as fact unless challenged
by the other lawyer. Therefore, pre-trial agreement on facts saves time at trial.

EVIDENCE
Preparation of witness to testify is both ethical and advisable - evidence can be packaged, but not
tailored - cant coach witness in terms of what substantially to say.
Once client has begun to testify, cant discuss with him anything that has already been dealt with, only
with items yet to come.
During cross-examination, cant talk to client about the case at all, in case re-examination is
necessary
If opposition overlooks a relevant case, your duty as an officer of the court is to disclose it, even if it
may hurt your case - you can attempt to distinguish it before the judge discovers it.

CONFLICTS OF INTEREST
your firm cannot also represent the opposing party
shouldnt answer questions from media unless certain that its in the clients best interests
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III. DISCOVERY

Discovery: (1) all forms of pre-trial discovery

(2) examination for discovery

Discovery of Documents (Rule 30)

In a sworn, itemized affidavit, must disclose all documents related to any matter in issue
Allow other side to inspect and copy the documents
Must disclose existence of any insurance policy which might settle the claim
for settlement purposes only - do not affect liability
At the discretion of the court, irrelevant documents sometimes need not be shown to the other side
(but must be disclosed anyway).
Implied undertaking: that disclosed documents will not be used for any other action or any other
purpose.
Continuing discovery (Rule 30.07) When another relevant document or an error is discovered
subsequent to the discovery of documents, a supplementary affidavit must be filed disclosing it.
30.10 Production by a non-party: must be relevant and unfair if not discovered. Require partys
consent or court order.

Examination for Discovery (Rule 31)

oral cross-examination, under oath
if being examined on behalf of a corporate body, must be apprised of all facts prior to discovery
hearsay rule doesnt apply here
bind the company with your answers
Discoverable evidence: how do you intend to prove that at trial?
31.09 Information given on discovery and subsequently found to be incorrect must be corrected
immediately. No explicit undertaking required; this is a general obligation.
31.10 Discovery of non-parties who have information relevant to a material issue; entails test of
relevance and unfairness.

Inspection of Property (Rule 32)

allow party onto real property or to take possession of personal property for inspection
not a right - need permission of the other party or a court order: 32.01(2)
RELEVANCE is a major consideration
32.01(4) If property is in possession of a party, require notice unless service of notice would entail
serious consequences for moving party.
32.01(5) Always require notice if property is in possession of a non-party

Medical Examination (Rule 33)

when physical or mental capacity is at issue
frequently, when there is serious bodily injury or to assess propensity for violence
due to the invasive nature of this procedure, the substantive rule allowing the court to order medical
examinations is in the Queens Bench Act; only procedures are set out in the Rules.

Interrogatories (Rule 35)

written responses to written questions
used primarily for detailed questions which require research, or for cross-examination on affidavit if
the person who swore the affidavit lives outside the jurisdiction.
can (rarely) be used in lieu of examination for discovery, but they are often used together

Pre-trial disclosure of expert reports (Rule 53.03)

must be disclosed 10 days before beginning of trial (dont have to disclose reports you dont intend to
use)

Requests to admit facts and documents (Rule 51)

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ask other side to admit that certain facts and documents are true
deemed to have admitted them unless specifically denied (or if no response)

Taking of evidence before trial (Rule 36)

If witnesses cannot be at trial (even for reasons of inconvenience or expense) or might die before
trial, you go to them
formerly commissioned evidence, de bene esse
36.05(1) If witness becomes available for trial, pre-trial evidence may not be used except by court
order or mutual agreement of the parties.

IV. DISPOSITION WITHOUT A TRIAL

Default Proceedings (Rule 19)

Plaintiff can note default if no statement of defence is filed within the prescribed time
defendant gets no further notice and loses right to continue to participate in proceeding
Default judgment can be set aside if there was a problem with service or if the defendant had a good
reason not to respond.
Once default is noted, plaintiff files evidence and eventually gets a judgment.
In practice, statements of defence rarely get filed within 20 days - lawyers grant extensions

Summary Judgment (Rule 20)

If one party feels that there is nothing to the other partys case, he can bring a motion for summary
judgment. Question is whether or not there is a genuine issue for trial.
Plaintiff must show a prima facie case by affidavit or other evidence, and the defendant must then
show by evidence that there is a triable issue.
Respondents affidavit must be substantial, lest the court draw an adverse inference from failure to
counter the other partys evidence.
Usually in cases with very simple facts
Judge can hold that case is not appropriate for summary judgment.
In essence, Rule 20.03(4), which allows trial on affidavit evidence, permits a judge to enter a
summary judgment even where there is a genuine issue for trial.

Expedited Trial (Rule 20)

Judge can create new rules to speed up trial - e.g., skip discovery and move straight to trial.
Might be appropriate for cases in which summary judgment is not exactly indicated, but this rule has
yet to be used in Manitoba.

Determination of an issue before trial (Rule 21)

If facts are not in dispute and resolution of a particularly contentious point of law might facilitate
settlement or shorten trial, parties can ask the judge to settle the law.
Not appropriate is issue can be settled just as efficiently at trial.
21.01(3) Can also move to have action stayed or dismissed for want of jurisdiction, lack of capacity
or another proceeding pending.
This rule is used when parties disagree on whether the motion is appropriate.

Special cases (Rule 22)

Like determination of an issue before trial, except parties mutually agree to bring the motion.
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Discontinuance and Withdrawal (Rule 23)

Plaintiff may discontinue litigation. Defendant may withdraw from litigation.
Most common where parties have settled.
Also possible if lawyer wants to restart (e.g., screwed up statement of claim - but check limitation
period...) or wants to switch to a different court (e.g., cmall claims, Federal Court).

Dismissal for Delay (Rule 24)

dismissal for want of prosecution
when plaintiff files claim and doesnt pursue it, and this is detrimental to defendant.
defendant can move to have claim dismissed for delay if delay has been unreasonable (limitation
period must have expired and then some).
plaintiff can attempt to show justification for delay
Court will attempt to balance equities, but will usually dismiss if defendant can show prejudice.

Pre-trial Conference (Rule 50)

Must be held before a trial date can be obtained
Identify and simplify issues, obtain admissions, facilitate settlement
Deal with trial management issues (e.g., multiple plaintiffs, etc.)
Must disclose any settlement offers that have been made (these are not admissible at trial)
PTC judge will not be the trial judge, thus allowing more candor and openness

Costs (Rules 57, 58)

Rules designed to help support smaller claims, discourage frivolous litigation
Generally, loser pays the winners costs (costs follow the cause), but this doesnt always happen -
judge has absolute discretion on how to award costs, and may even order winner to pay losers costs,
R.57.01(2).
57.07(1) In exceptional cases of misconduct, costs may be awarded against a partys lawyer.
Party and Party Basis: assessment straight out of the tariff (classes of claim amounts).
Solicitor-Client Basis: dont follow the tariff - pay total, including lawyers fees
subject to review by an assessment officer, who usually arrives at a compromise
used to punish one side or the other.

Costs and Settlement (Rule 49.10)

49.10(1) When plaintiffs offer to settle is refused by the defendant and the plaintiff is awarded a
judgment as favourable or more favourable than the terms of the offer, the defendant must pay party and
party costs to the date of the offer and double the party and party costs from that date.
49.10 (2) When defendants offer to settle is refused and the plaintiff is awarded a judgment as
favourable or less favourable than ther terms of the offer, the defendant must pay the plaintiffs party and
party costs to the date of the offer and the plaintiff must pay the defendants party and party costs from
that date.

Security for Costs (Rule 56)

Obtained by motion, R. 56.03, if the case is just and falls under one of the categories set out in Rule
56.01, or if the plaintiffs case seems tenuous. Generally, if there is doubt that costs will be collected.
Particularly if plaintiff lives outside of the jurisdiction: Rule 56.01(a)
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SCOPE OF DISCOVERY (Rule 31.06)

31.06(1) Any proper question on any matter in issue or made discoverable by subrules (2) to (4) is to
be answered to the best of the partys knowledge and ability.
31.06(2) May request names and addresses of persons having material knowledge.
31.06(3) May discover findings of expert engaged by the party being examined, provided that (a) the
expert was engaged expressly for the purposes of the proceedings, and (b) the examining party
undertakes not to call the expert as a witness at trial.
31.06(4) Discovery of relevant insurance policies which would (a) satisfy all or part of a judgment, or
(b) reimburse party for maney paid in satisfaction of a judgment.