Monday, May 2, 2016
Friday, April 29, 2016
World Bank Group v. Wallace, 2016 SCC 15:
A Garofoli application is more limited in scope than a typical O'Connor application, relating as it does to the admissibility of evidence, namely intercepted communications. An O'Connor application made in the context of a Garofoli application must be confined to the narrow issues that a Garofoli application is meant to address. The Garofoli framework assesses the reasonableness of a search when wiretaps are used to intercept private communications. A search will be reasonable if the statutory preconditions for a wiretap authorization have been met. A Garofoli application does not determine whether the allegations underlying the wiretap application are ultimately true — a matter to be decided at trial — but rather whether the affiant had a reasonable belief in the existence of the requisite statutory grounds. What matters is what the affiant knew or ought to have known at the time the affidavit in support of the wiretap authorization was sworn.
While the O'Connor process may be used to obtain records for purposes of a Garofoli application, the relevance threshold applicable to such an application is narrower than that on a typical O'Connor application. To obtain third party records in a Garofoli application an accused must show a reasonable likelihood that the records will be of probative value to the narrow issues in play on such an application. This test for third party production is also consistent with another form of discovery on a Garofoli application: cross‑examination of the affiant. Both forms of discovery serve similar purposes and engage similar policy concerns. The justifications that warrant limiting cross‑examination of the affiant apply with equal force to third party production applications. The "reasonable likelihood" threshold is appropriate to the Garofoli context and fair to the accused.
Of the Law Societies of Upper Canada and Nunavut
Tuesday, April 26, 2016
Hervieux v. Huronia Optical, 2016 ONCA 294:
 R. 12.02 provides as follows:
12.02 (1) The court may, on motion, strike out or amend all or part of any document that,
(a) discloses no reasonable cause of action or defence;
(b) may delay or make it difficult to have a fair trial; or
(c) is inflammatory, a waste of time, a nuisance or an abuse of the court's process.
(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:
1. In the case of a claim, order that the action be stayed or dismissed.
2. In the case of a defence, strike out the defence and grant judgment.
2.1 In the case of a motion, order that the motion be stayed or dismissed.
3. Impose such terms as are just.
(3) The court may, on its own initiative, make the order referred to in paragraph 1 of subrule (2) staying or dismissing an action, if the action appears on its face to be inflammatory, a waste of time, a nuisance or an abuse of the court's process.
 On February 21, 2014, the deputy judge allowed the appellants' motion and dismissed the respondent's claim because of the respondent's failure to file expert evidence supporting his claim on the issues of standard of care and causation, concluding that: "Absent such evidence, and no prospect of such evidence being secured, it is reasonable for this court to invoke the provisions of Rule 12.02(1) [and] (2) of the Small Claims Court, and I do so." (Emphasis added.)
 On March 19, 2015, the appeal judge allowed the respondent's appeal on the bases that the deputy judge had made an error of law and exceeded his jurisdiction in treating the appellants' motion as a motion for summary judgment and dismissing the respondent's claim under r. 12.02(1), because the claim was not inflammatory, a waste of time, a nuisance or an abuse of the court's process. The appeal judge held that it was a denial of natural justice to dismiss the respondent's claim under r. 12.02(1), and that the deputy judge should have given the respondent, a self-represented litigant, another opportunity to provide expert reports.
 The appellants submit that the appeal judge made several errors in reversing the deputy judge's dismissal of the respondent's action. The appellants argue that the appeal judge erred in finding that the deputy judge effectively granted summary judgment when the deputy judge merely and correctly applied the provisions of r. 12.02. The appellants complain that the effect of the appeal judge's decision is that deputy judges will not have the jurisdiction to dismiss actions in which plaintiffs have failed to comply with an order to produce expert reports and, as a result, they will not be able to enforce deadlines for the delivery of documents, including expert reports, under r. 12.02 of the Small Claims Court Rules.
 I disagree that the appeal judge's order has that wide-reaching effect.
 There is no question that a deputy judge has the jurisdiction to alter the time deadlines otherwise provided under the Small Claims Court Rules and even to dismiss an action. In particular, in accordance with the provisions of r. 13.05(1) and (2)(a)(vi), it was open to the deputy judge during the settlement conferences to require the respondent to provide his expert evidence to the appellants in advance of the trial. Further, under r. 13.05(2), if the circumstances warranted it, the deputy judge, with written reasons, could have stayed or dismissed the action.
 It would also be open to a deputy judge in the appropriate case to dismiss an action under r. 12.02 for a party's failure to comply with a court production order or any other order.
 Indeed, it was open to the deputy judge in the present case to invoke r. 12.02 if the circumstances supported any of the criteria listed in that rule. However, for the reasons that follow, I agree with the respondent's submissions that the circumstances of this case did not warrant the dismissal of the action under r. 12.02.
Monday, April 25, 2016
Spar Roofing & Metal Supplies Limited v. Glynn, 2016 ONCA 296:
 The respondent's submission is in effect a submission that the court should consider the merits of the factual and legal basis for the proposed amendment at the pleading stage and not at a later stage of the proceedings. That is not the law under r. 26.01. As stated in Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2016 Edition (Markham, ON: LexisNexis Canada, 2015), at p. 1151:
The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success.
Put another way, an amendment is to be granted unless it would have been struck out under r. 21.01(1)(b) if it had been pleaded originally: 1317424 Ontario Inc., at para. 7. A motion to strike out a pleading on the ground it discloses no reasonable cause of action or defence must not, however, be conflated with a motion for summary judgment under r. 20.04: see Andersen Consulting v. Canada (Attorney General) (2001), 150 O.A.C. 177 (C.A.), at paras. 34-37; Griffiths v. Canaccord Capital Corp. (2005), 204 O.A.C. 224 (Div. Ct.), at para. 10.
Tuesday, April 19, 2016
Let's suppose you bought a tin of beans from a store and when you opened the can the beans had turned rancid. The store refuses to refund your money. Technically you have a valid legal claim but if your loss was the price of a can of beans only then you would be foolish to proceed with a statement of claim. Suing over a few dollars is silly.
The can of beans example is obvious but even larger cases can be financially too small or too uncertain to make a law suit worthwhile. That's largely because it costs a great deal of money to go to Court. Even a matter in small claims court can cost thousands of dollars if you have a lawyer and if you proceed in the higher court the costs rapidly move into the tens of thousands of dollars.
A one week civil trial will cost between $25,000 and $100,000 in fees depending on the case and the seniority of the lawyers.
What's more, even if you have a good claim for significant damages there is no point in suing unless there is a good chance of recovery. An example may help to clarify. If you get a judgment against, say, the Government of the NWT for ten million dollars it will, after all the appeals are done, be paid. If you get a judgment against me for ten million dollars it won't be paid ever because I don't have ten million dollars and am not likely ever to have that much money. A judgment is only worth what the defendant can pay.
This means that unless a case has significant damages and a real chance of recovery it probably does not make sense to sue.
Sometimes people ask me to sue where their damages are low or recovery unlikely as a matter of "principle". I always discourage that. The legal a system is a way of trying to resolve civil disputes; it is not a way of making a political or moral point. In civil law "principles" can be very expensive indeed.
That doesn't mean you never sue where damages are low or recovery unlikely but it does mean that when you do sue it should be for a practical reason.
Some years ago a school teacher was the subject of a chain letter suggesting the teacher was a child molester. The author of the letter was basically bankrupt and recovery of any damages was inconceivable. Nevertheless the teacher asked me to sue and we got a judgment – even though we knew the judgment was financially worthless. The judgment had no monetary value but when the teacher was asked about the chain letter the teacher could point to the judgment and say he was vindicated – that had a real value.
Law suits are costly and take a lot of effort. Before starting a law suit consider carefully if it makes sense to spend that money and invest that effort.