Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk briefly about workplace investigations. What is a workplace investigation; what is its purpose; what are some of the goals; how is a workplace investigation instituted; and what are some of the steps taken in a workplace investigation; so you can get a basic understanding of workplace investigation whether you are an employer or an employee who is involved in an investigation.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

Workplace investigation is to investigate a workplace dispute.  That’s one of the common reasons.  There could be an allegation of improper conduct.  For example, harassment complaint by an employee against a coworker or a manager or supervisor or a discrimination complaint or a complaint of any other conduct that is considered to be improper—you may, as an employer, need to investigate that.  There may be a workplace accident or an injury that requires an investigation and that could be a reason.  Or something or another occurrence/something else that may have happened in the workplace that warrants that the employer should investigate that particular occurrence. 

What is the purpose of an investigation? The fundamental purpose of workplace investigation is fact finding—to figure out exactly what happened—that is the most basic and the most essential purpose of a workplace investigation.  Who said what to whom; what was the incident; how did it happen; who were the parties involved; essentially all the important elements of that specific instance or instances and to figure out all the facts that are relevant to that particular issue.  Fact finding is one of the most essential and sometimes the only purpose of an investigation. The investigation could be much broader than just a fact finding mission but essentially it has to be a fact finding mission.  

Other purposes could be to identify breaches of policies and procedures.  If the employer has any policies relating to that instance, then the employer may want to know whether a specific policy or policies or procedures were breached.  For example, if it’s a workplace incident involving the use of specific machinery—were there any policies relating to the operation of that machinery and whether the policies were followed or, if not, whether the procedures were breached.  If so, who did that?  Some of the purposes of the workplace investigation could be to figure that out.  Also one of the purposes of investigation could be to figure out any breaches of law.  This could be different from the policies and procedures because policies and procedures may be limited to that specific employer and may not necessarily be a legal obligation imposed by law. 

Another purpose of workplace investigation could be to figure out breaches of law—whether there was discrimination contrary to the Human Rights Code; was there any harassment contrary to the Occupational Health and Safety Act—whether there were any other breaches of law; whether the alleged act was a criminal act and warrants any criminal investigation.  All of these things may be part of the investigation process.  Another purpose of investigation could be to obtain recommendations from the investigator so that any future issues of similar nature could be avoided.  The employer may ask the investigator to provide a legal opinion on the matter/s; the employer can ask the investigator to provide any recommendations—whether any legal action is warranted against any of the parties who are involved in that issue. 

What is the obligation to investigate?  The investigation could be done in one of the two ways: 1. Investigation is done under Occupational Health and Safety Act in Ontario.  There are similar legislations in other provinces.  I’m not sure whether other provinces mandate a workplace investigation but in Ontario under Occupational Health and Safety Act, the Act requires (it imposes a mandatory obligation on) the employer to conduct a workplace investigation when there are issues related to harassment.  Here’s the Occupational Health and Safety Act.

Section 32.07(1) “To protect a worker from workplace harassment an employer shall ensure that,

 an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;

It is important to recognize that the language that is used is to conduct an investigation. Number one, it’s a mandatory obligation to conduct investigations. And number two, investigation has to be conducted into incidents and complaints.  Sometimes there could be a potential workplace harassment but there is no complaint actually filed with the employer.  The employer becomes aware of an incident which may be considered a workplace harassment—the obligation to investigate is still on the employer to conduct a workplace investigation.  Obviously, when there is a complaint, then the employer has an obligation to conduct a workplace investigation. The other section that is worth reading here with respect to the investigation is that,

• The worker who has allegedly experienced workplace harassment and the alleged harassers, (both parties) if he or she is a worker of the employer are informed in writing of the results of the investigation and if any corrective action that has been taken or that will be taken as a result of the investigation.

The person who made the complaint or the person who has experienced workplace harassment is entitled to know what is the conclusion of the investigation and secondly the person who has been accused is also entitled to know what is the outcome of the investigation and this needs to be done in writing.  The Occupational Health and Safety Act mandates the employer to conduct an investigation with respect to workplace harassment issues.

Otherwise the employer has its own discretion to conduct an investigation.  If it’s not a harassment scenario, in any other circumstance, the employer may decide that a workplace investigation is appropriate in the circumstances and may choose to conduct an investigation. 

An example of such an investigation could be an investigation into any discrimination or potential discrimination issue/s.  The Ontario Human Rights Code does not mandate an investigation.  The employer may choose to conduct an investigation to figure out whether there was any discrimination based on the facts of the case at hand and to take appropriate action. 

Aside from the Occupational Health and Safety Act there is no obligation but based on the specific circumstances of the issue the employer may choose to investigate.  Just so you know workplace investigations have now become a common thing—primarily because employers want to make sure that they understand what has happened and to protect other employees and the employer itself from any legal actions that may flow from that specific instance.

What are some of the goals of workplace investigation? It is tied to the purpose of the investigation. One of the goals of the investigation is to figure out what legal action, if any, needs to be taken based upon the issues that have come to light in that specific investigation, and, if there are any remedies that need to be obtained with respect to that investigation.

Another goal is to make sure that the workplace is repaired if there is a breach in relationship between coworkers and employees, then that is repaired.  You create a work environment which is safer and cordial. And make sure that if there are issues with any policies—either with respect to the policy itself or with respect to any training or any other facts relating to workplace policies—then that that is looked after. Obviously, the employer wants to make sure that the workplace is more productive and safe for all of its workers.  Finally, the employer also wants to make sure that similar issues do not arise in the future.

Now how is a workplace investigation instituted? First of all as I said, the employer may become aware of the issues; knowledge of issue; dispute or the occurrence. Then the employer because of that knowledge starts the process of deciding whether to conduct an investigation or not.  Or the employer may have seen specific complaints from an employee with respect to an issue and that may trigger the inquiry of whether a workplace investigation needs to be conducted. 

Once that knowledge of the issue is made aware, then the employer conducts a preliminary review—usually done by human resources department, if the employer is big enough to have a dedicated human resources department or someone who is in charge of human resource issues will conduct a preliminary review and decide whether an investigation is warranted in the 1st place or not. If it’s an Occupational Health and Safety Act issue (obviously for harassment issues) the investigation is mandatory.  For other matters, the preliminary review will determine whether to conduct an investigation or not. 

Once the decision is made to conduct an investigation the next step is who will conduct the investigation. Whether it’s going to be an internal person / an internal employee of the organization who will conduct the investigation or whether it’s going to be someone outside of the organization / an external person who will conduct the investigation. 

If it’s an internal person, then the employer has to decide who is the appropriate employee to conduct investigation; whether this person could be a human resource person; whether this could be a manager ; a supervisor or another competent employee who has no conflict of interest.  There are other factors that an employer needs to consider to make sure that an appropriate employee is assigned for the task to investigate.  We will provide separate lectures on selecting an appropriate investigator and how do you figure out who is the right person to investigate based upon the specific circumstances of an investigation. 

If the employer decides that it is going to be done by an external investigation, one of the factors that the employer may consider is whether the investigation needs to do be conducted by a lawyer or a non-lawyer—whether it could be someone who can simply conduct a fact finding mission without having a clear or deeper understanding of the legal issues involved then a non-lawyer may be suitable. Again with respect to the selection of an appropriate investigator we will provide a separate lecture and will cover this topic in more detail.

Now how is an investigation conducted?  Some of the common steps in a workplace investigation are as follows:

First of all an investigator is assigned whether internal or external investigator; 2^nd then the investigator is provided with the mandate. What is the scope of the investigation? Is it only fact finding or investigator has to dig deeper into related matters?  For example, breaches of policies and breaches of law—whether the investigator is required to provide an opinion on policies and procedures, on law or any other recommendations that the employer may be seeking from the investigator.  3^rd The employer may also prescribe a timeline for the conduct of the investigation.  Usually the expectation is that the investigations are commenced and completed in a reasonable time period.  Once that is done, then the role of investigator begins.  Investigator starts gathering facts and evidence. In that process the investigator gathers all documentary evidence that may be relevant to the understanding of the issues that have occurred.  The investigator may get viva voce evidence and the investigator will most likely conduct interviews from a number of witnesses to figure out what has truly transpired in that specific instance.  Once all of that is complete, the investigator will review all of the evidence and all of the facts and then provide a report to the employer regarding the outcome of the investigation.

What is it that you want to keep in mind with respect to workplace investigation? That a properly conducted workplace investigation is usually very helpful to the employer in understanding what has happened, what caused the issues that became the reason for the investigation, how to maintain a safe and productive workplace environment and to make sure that future instances of similar nature (similar disruptions) do not occur at the workplace.

In our future lectures we will talk more about workplace investigation and some of the specific topics, for example, choosing an appropriate investigator; how to conduct a fair and unbiased investigation.  We will cover those topics in our future lectures.  Thank-you for watching this and hopefully this gives you a basic understanding of what is a workplace investigation. Thank you.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Any time when someone goes to court and commences a civil action there is some sort of unfairness wrong or harm that underlies that court action.  There is some unfairness for which that person is seeking a remedy from the court against certain other parties.  How does an unfairness or wrong translate into a court action in Ontario?—that is something that we’ll talk about today so you can have a broader understanding of how any wrongdoing can turn into a court action.

We begin with our usual disclaimer that this lecture is only for educational purposes and should not be construed as legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral to a lawyer or paralegal.

1st thing that you want to keep in mind is that not every wrong is actionable; not for every unfairness that you may face are you able to go to court—that is not possible.

Let me explain that concept by way of an example.  Imagine a scenario where a parent promises a child that if you get straight A’s in your exams I’ll buy you an XBox.  The child agrees to it and the child gets straight A’s.  Does that become a legally binding contract? Under the principles of a legally binding contract there has to be an offer and you’re making that offer that if you get straight A’s; there has to be an acceptance and the other party (the child) says yes I will get straight A’s.  Then the promise is that if you get straight A’s you will get an XBox.  That’s the promise—there is an offer; there’s a consideration and there is an acceptance on part of both parties.

On general principles of contract law this will be considered a contract but there is that particular promise in this situation: does that become a contract that is enforceable in courts (in our Ontario Courts or in Canadian courts)?  The answer is no.

Let me give you another example.  In this example, a similar situation, but now the parent is required to provide the child with the necessities of life and that may be something that may be actionable.  Society at large may take legal action against a parent who is not or who is failing to provide necessities of life to a child. What does this example or the 2 examples indicate? What it tells you is that boundaries of law are determined by society.  We as a society decide what kind of issues, what kind of matters will form part of the domain of law and which kind of issues will not form part of the domain of law.  We as a society (in a democratic society) decide this and whatever we agree to—even the criminal code. That’s a decision of our society to say what kind of acts will be considered criminal in our society and will be punishable by criminal courts. 

Similarly, there are social wrongs or other similar wrongs that we as a society believe that they should be actionable in our civil courts and that’s what we have decided and that’s actionable.  Not every single wrong that we face in our lives is actionable—for which we  go to court.  It’s a simple principle that we all understand.  It is worth repeating so that we have clarity on how any unfairness translates into an actionable wrong and when we say actionable wrong, we mean a wrong that can be taken to court.

How does an unfairness of any kind turn into an actionable wrong for our court system?  There are generally 3 ways. 1st one is that there is a breach of a statutory obligation.  There is some obligation on part of somebody to do something or not to do something under a specific statute in Canada either in Ontario or other provincial statutes or a federal statute.  That person (that party) has failed to abide by the obligations under the statute which gives rise to your right to take the party to court as long as the statute provides for that.

The 2nd common way to make an unfairness to an actionable wrong is a breach of contract.  We all kind of understand this concept that if there is a contract between parties and one party fails to perform the duties of the contract, the other party can take legal action against the first party.

The 3rd way you can take someone to court is under tort and I will explain the concept of tort further in the next few slides. Let’s take each of these examples.

1^st  We know that statutes are created by legislators; even the parliament enacts statutes; we know from our knowledge of how our society works that our parliamentarians / legislators sit down and decide on an important issue. They create a Bill and then the bill becomes some sort of statute in our province or in Canada.

One of the places where you can find all Canadian statutes is called Canlii. This is a website which is nonprofit and you can access all of Canadian statutes from this website: canlii.org. That’s the website.  If you go to this website, for example, if you want to look at all of the Canadian federal statutes you can go here and you see that statutes and regulations are listed here.  You can access the statues alphabetically.  Here you can see the many federal statutes from Access to Information Act to Authority of the Federal District Commission to Have Acquired Certain Land—all kinds of issues, Anti Terrorism Act, Apprentice Loans Act—I’ve never before heard of that Act.  All kinds of issues are dealt with in the statutes and you can find that information free on canlii or other websites that are available in Canada.  

Underneath statutes are regulations—regulations give a bit more flexibility in terms of how a particular statute needs to be interpreted and how it needs to be implemented. Regulations are bit more broader and a bit more practical.  Statute provides an overall direction but combine these to provide for the obligations within that statute. 

A common example of a statute which gives rise to certain duties is the Human Rights Code.  Many of you may not know but there is no civil right to sue someone for discrimination.  The right arises from a specific statute in Ontario—it’s the Human Rights Code and in federal jurisdiction is Canada Canadian Human Rights Act.  That particular statute provides that discrimination is prohibited on certain grounds.  It lays out specific grounds because discrimination is a very broad term.  It could happen in so many parts of life.  There are specific grounds for example: race, religion, sexual orientation, disability and whatnot.  There are specific grounds laid out so you can only sue someone for discrimination on the basis of those grounds. 

Then there are certain circumstances in which discrimination or certain relationships within which discrimination act can be brought forward.  Those are defined in the Act in Ontario Human Rights Code.  Then the Act also indicates that if it’s a discrimination matter then you cannot really go to court but you have to go to the Human Rights Tribunal.  The power to commence an action arises from the specific legislation. That’s an example of where an unfairness—in this case discrimination becomes an actionable wrong through the power that is vested through this particular statute.  That’s an example of how you can approach the courts or tribunals through a breach of duty under statute.

2^nd is contract.  We know generally that contract between parties provides the duties that each party must perform.  You have an obligation to perform the contract based on the terms of the contract.  The liability in terms of contracts arises from the breach of contract—one party fails to do what it is required to do under the contract, the other party can take legal action.

3^rd is tort—which is a fascinating area of law.  I find it extremely fascinating because it talks with a lot of social philosophical dimensions of how we find liability and legal action.  It’s a fascinating area.  What is not covered in contract may be covered in torts.

One of the things that you want to know is that tort duty is imposed by law / society.  It’s not your choice.  It is not a situation where you are agreeing with another party to do something or not to do something.  This duty is automatically imposed by society and what does the tort do? The liability in tort arises from the cause—from the injury or harm that has been caused by one party.  It’s an injury based / harm based kind of liability that is imposed by society in general.  

Common example of that is motor vehicle accident.  You and I do not form specific contracts with other drivers on the road that we will drive carefully.  This duty has been imposed on us by society that when we’re driving on roads we have to be careful and not negligent in how we drive.  If we cause an accident and cause an injury or harm to someone else, then that person has the ability to take us to court based on the principles of tort.  It’s not a contractual principle but tort. 

Similarly, product liability is again a tortious act.  You buy a car.  The brakes were manufactured improperly and it causes you into an accident.  Then you have an actionable wrong against the manufacturer of that particular vehicle. These and there are many more examples.  Professional liability is another example where the negligence of your physician or your accountant or your lawyer can give rise to an actionable wrong that you can take against that individual. 

Tort is a very broad category but generally speaking these are some of the examples that I can give you.  In our ensuing lectures I’ll actually go over all kinds of different torts and explain how those torts become actionable wrongs and what are the grounds to bring a court action for those torts.

Now contract and torts have some similarities—what are those? Both deal with a breach of duty. Whether duties are imposed by law or duties are imposed by agreement of parties but they’re both dealing with a breach of duty and both are providing certain damages once the judgment is made (the court awards certain damages to one party or another).

What are some of the differences? One difference is consent.  When a contract is entered between parties, and the parties knowingly and without coercion agree to something—it’s an agreement of the parties.  As I said, in tort there is no consent required from you or for me or from anyone else.  This is a duty imposed by law. This is not something that we sign into by choice.  We being members of society automatically accept our duty in tort.  

Similarly, with respect to damages—the concept of awarding damages in the contract law is, generally, to put the party that has been wronged in a position if the contract was not breached.  The court puts itself in a position where if there was no breach where would this party land at the end of contract and try to put their party into that position.

A common example could be that if the contract was performed properly you would have made $100,000.00 at the end of the contract. Then the court will put you in that position and say you’re entitled to $100,000.00.  That’s a very broad, simplistic example.  Putting the party in the position that it would have been in if the contract was performed.  

Torts is based on compensation for the harm or injury—whatever injury has occurred the court is trying to provide compensation for that specific harm or injury.  Underlying concepts of award of damages for contract and tort are different and so they will give rise to different amount of damages in each case. And one more thing you want to keep in mind is that punitive damages are generally not awarded in breach of contract.  They may be, but generally not.

Punitive damages are awarded in tort cases.  We have all heard these stories of cases in the US against McDonnell or some other large corporation where they have committed a tort and courts have awarded millions of dollars in punitive damages. That’s where you can imagine that in tortious cases punitive damages could be awarded.

What is it that you want to take away from this lecture?

It is that whatever kind of unfairness that you want to take into court has to fit into a specific cause of action or causes of action. You cannot just simply stand up in court and say, “This person does this thing unfair to me I want you to give me X remedy or X damages.  

You have to figure out that in your specific set of facts what is the cause of action.  Is it a tort of negligence; is it a breach of contract; is it a breach of a specific statute—that is what you have to figure out.  What is the cause of action that is going to allow the court to give you the remedy that you are seeking? This is where you go and seek legal advice from lawyers, who because of their experience and knowledge have a better understanding of different causes of action or different statutes.  They can channel your specific facts, i.e., the wrong that has been done to you into a specific cause of action that the court understands and the court can provide you the remedy.  That’s why this concept of understanding how any unfairness turns into a specific cause of action or an actionable wrong is important for someone who wants to understand the legal process in general are commands a court action in certain specific circumstances of that person’s case. 

Generally speaking, the liability or actionable wrong can arise because of a breach of statute, contract or tort or a combination of these factors.  And you can sue for that in a court of law. 

In our future lectures I will try to go dig deeper into these concepts we will talk about different kinds of torts which are fascinating and you’ll learn about different kinds of torts—negligence and intentional torts, about battery and assault, false imprisonment and debtinue and conversion all these very very interesting topics will cover those and but will explain to you in practical terms that what kind of set of facts will allow you to seek remedy under those specific talks.

Thank-you for watching this basic lecture that will hopefully help you understand how an unfairness turns into an actionable wrong in Ontario Courts and generally in the courts of Canada.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about some basic types of torts so you can understand the fundamental concepts behind torts and understand some of the common types of torts that are available in Canada. This is sort of the tort law 101 in terms of understanding different types of torts. 

We will begin with our disclaimer that this course is not legal advice.  It’s only for educational purposes.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

What is a tort?  It comes from the Latin word “Tortum”, which simply means wrong or injustice. What does a tort do? It imposes a duty of care which is imposed by law. It is not by choice—you and I don’t need to sign anything to be held liable under tort. Just by virtue of living in a society we are all bound by different torts, which is why tort is important—because it is different from the law of contract where you have to actually sign into a contract to be liable under the contract.

The 2nd thing you want to keep in mind is that the concept / or fundamental reason for tort law is to provide compensation for the loss or injury to the harmed person. The fundamental concept is not to punish the wrongdoer, although, punitive damages are indeed awarded in tort law. Just so that we’re clear about the importance of tort law, one of the things that you want to keep in mind is that tort law covers many day to day circumstances. Our various social, technological, economic circumstances are covered by tort law and that’s why a better understanding of tort law is important.

Some of the examples of tort law are product liability: any time you manufacture a product or you sell a product you may be held liable if there are injuries or harm caused by that product.  You know we hear all kinds of examples where you go to a restaurant and you have consumed food which had bacteria or some other problems and it caused you illness and so the restaurant owners may be held liable for the food.

Similarly, we buy all kinds of products in our day to day life.  There may be liabilities on the seller or on the manufacturer of those products. They’re all covered under tort law. We deal with all kinds of professionals in our lives: lawyers, doctors, accountants, plumbers, electricians and they have a liability with respect to the duties that they perform in your circumstances. Occupiers liability: we occupy all kinds of spaces—our motel / hotel, land (agricultural land) all kinds of things—there could be occupiers liability arising from that.  There is vicarious liability: which is being liable for the actions of someone else. All of these various aspects of our day to day lives are covered by tort law.

What are some of the common types of torts? One kind is called intentional torts; torts of negligence; strict liability tort and economic tort.  Let’s briefly talk about these torts. Intentional torts: are some of the common torts e.g., battery, assault, false imprisonment, sexual harassment, trespass, conversion, detinue, and so on.

We will go over these torts individually in separate lectures and I’ll explain to you what are the common—the basic elements of each tort. What is it that you need to establish in that tort? What are some of the defences with respect to that tort.  Over here I just want to let you know that these torts exist. 

Battery and assault are often mixed.  People consider assault as battery but battery is slightly different.  Battery is interfering with someone’s bodily integrity.  Touching someone without permission could constitute battery.  A common example is hockey players.  When hockey players come into contact with each other during the game of hockey, they’re actually committing the tort of battery.  The reason why there is no tort of battery against hockey players or between hockey players is because there is a defense of consent.  Under the rules of hockey, the contact is permitted.  When you play hockey, you are consenting that the other players may come in contact with you bodily.  That’s why even though battery is committed, the person is not held liable—because you have provided consent for that. 

Similarly, sexual harassment is also considered a crime.  The person may face consequences under the Criminal Code of Canada in addition to a civil action in sexual harassment. 

Trespass is another one. If someone arrives on your property without your permission that person may be committing an act of trespass and you may have remedies in civil law, in addition to other options to seek remedies under the tort of trespass. 

Conversion is using someone else’s property without permission.  All of these are intentional torts because they are intentional acts and they have specific requirements for you to show that the intentional tort has been committed and that there is no valid defense by the person who has committed that. 

Another example of battery is when a surgeon operates on a person and conducts surgery, that is an act of battery.  And that’s why as you and I know that prior to any surgery you sign a consent form where you allow the surgeon to conduct that surgery.  If it is without permission then that act of surgery will constitute battery.

Negligence—is a very broad category of torts.  It covers many aspects of our day to day life.  Essentially, what negligence does is that it imposes a duty of care on all of us and the duty of care is to act reasonably so others are not harmed.  There are 2 aspects of it: one is that there is a duty of care and then the 2nd is that there is a standard of care.  What kind of standard of care that you and I need to follow?  In legal terms it’s called a reasonable person’s standard.  What does that mean?  

In very simple terms, what it means is “what would a reasonable person have done in the similar circumstances?”  Would the person have done the same thing?  Would the reasonable person have done the same thing as you have done?  Then, obviously you have met the standard of care and you may not be held liable.  If you acted in a way that a reasonable person would not act, then you may be held liable as long as there is a duty of care found in the specific circumstances of your case/  

Then this reasonable person standard gets more nuanced based upon the situation.  For example, if we’re talking about a surgery situation in a medical malpractice scenario, if you have a claim against a surgeon for not doing the surgery properly—what the court will do is, the court will consider what would another reasonable surgeon have done in similar circumstances.  If the surgeon or any reasonable surgeon would have done the same procedure in the same manner, then obviously the tort has not been committed.  That’s how the standard of care is applied in different circumstances.

There is another concept within the negligent category called contributory negligence.  What that means is if I am injured by the recklessness or negligence of another person but, in getting that injury, I myself acted in a negligent way then I may be held contributory negligence with respect to my own harm.  That’s another aspect within the negligence law.  The common example of law of negligence torts is motor vehicle accidents that we deal with all the time; product liability; professional liability, etc.

Strict liability: Now what you want to keep in mind in strict liability is this basic concept, that in strict liability the injured person does not need to prove fault by the wrongdoer.  They don’t need to establish that.  As long as there is an injury, in strict liability cases the injured person needs to be compensated.  That’s it.  Proving ‘fault’ is not required.  That’s why it’s called strict liability.  If the act has happened, liability correspondingly arises. 

A common example could be dog bite.  If you are an owner of a pet or a dog that has harmed another person, then the owner’s liability is a strict liability.  Your justification may not help.  The liability is imposed strictly.  Another common example of strict liability is that if any tort is committed by an employee during the course of his or her employment the employer is vicariously liable.  Employers justification of any kind would not work.  Employer is simply liable for the employee’s tortious conduct during the course of employment.

Another category is economic torts: These obviously, as the name implies, deals with economic aspects of our day to day life.  One of the common examples of an economic tort is inducing breach of contract.  If two parties have a contract and a third person who was not a party to the contract does something unlawful in such a way that one party breaches the contract with the other, then the harmed party may sue that 3rd person for the breach of contract between the other two parties. That’s inducing—asking someone or making someone to breach their contract with another person by unlawful means.  It’s another tort.

Intimidation in a civil matter, if it causes harm, it is it is subject to a tort.  Similarly, conspiracy (all kinds of civil conspiracies) will fall under economic tort.

What is it that you want to remember—that a better understanding of torts will lead to a better understanding of one’s rights and responsibilities in our day to day lives.  Also each tort contains different elements that must be proven to successfully seek remedies from the court.

In our future lectures we will pick every single tort, especially the most common ones.  Go through the basic elements that you need to prove in a court to seek remedies and then I’ll talk about the defences that may allow you to avoid liability in those torts.

Thank-you for watching and I look forward to seeing you in the next lecture.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll cover Rule 49 of the Rules of Civil Procedure in Ontario in our lecture.  This particular Rule deals with the Offer to Settle in a proceeding.  It has very specific implications with respect to the cost award in the outcome of your case.  It is a very important Rule to consider and use strategically in your proceedings. 

We begin with our disclaimer that this lecture is not legal advice.   If you have any specific questions regarding your case you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral—if you do not know a lawyer or a paralegal.

Settlement of a proceeding can take place at any time from the commencement of your court action to its judgment.  Parties can agree to settle the case at any point.  They can make offers to settle and resolve their dispute bilaterally at any stage in the court action. I have been involved in cases where we have actually resolved and settled cases once the trial had begun. In fact, we were three days into the trial when the parties agreed to settle their case.  

You can also settle your case once the trial is concluded—as long as a judgment is not issued (oyou can come to a resolution and then settle your case.  Our judicial system (our courts) encourage settlements.  Just statistically it’s worth noting that over 90%; I believe over 95% of civil cases in Ontario do settle prior to going to trial.  It’s a large proportion of cases (majority of cases) that do settle without actually going to trial.

When parties make reasonable offers to settle and the other party does not accept it, there are consequences to not accepting the offers to settle.  The purpose of all these efforts is to encourage parties to settle the cases because once parties settle the case, they have the power to craft the settlement—they have the control over the outcome of their dispute. 

Once that dispute is handed over to a judge then the judge is going to decide in one party’s favor and so it’s kind of ‘win or lose’ situation.  Once the case is to be decided by a judge the parties lose complete control over the outcome because it is the judge who will decide which party’s case is meritorious and then rule in that party’s favor.  Parties are always encouraged to consider settlement options and the Rules of Civil Procedure are designed to encourage the parties to make settlements and also there are consequences if parties do not accept reasonable offers to settle.

There are 3 types of cost awards which I’ve mentioned in our previous lecture but I will briefly go over here again.

[A] One is full indemnity, which is extremely rare. Full indemnity means that you are successful in your case and you’re asking the court to award full costs that you have incurred—100% and make the other party pay your costs—which is extremely rare.

[B]  Most commonly the court awards partial indemnity—which is about 30 to 50 percent of the actual cost that you have incurred. 

[C] If you’re proceeding strategically, you can actually get substantial indemnity costs, which is 75 to 80 percent of the actual costs that you may have incurred. 

This substantial indemnity part is the one we’re trying to focus on in today’s lecture and explain to you how you use Rule 49 to get highest costs that are generally possible in your case.  We have talked about the importance of costs award in previous lectures.  Oftentimes the costs are neglected by parties.  The parties are so focused on the merits of their case that they don’t recognize the consequences of costs.  

It is important to understand that aside from the merits of your case what kind of cost awards you can get or what kind of cost awards can be awarded against you. I had explained this by way of an example in my previous lecture.  I’ll repeat it quickly. 

Imagine that you have a case where you’re claiming $30,000 in damages. You incur about $60,000 in legal fees and disbursements by the time you conclude your trial (which is not uncommon in Toronto).  You get a judgment which awards you the entire $30,000 but it does not give you any costs.  The outcome for you financially is that you’re out of pocket by $30,000 even though you are successful at trial.  That is why it is important to consider costs especially when the amount of money in your claim is not significantly high.  I would say anything less than $250,000 would not be considered significantly high—as long as you’re dealing with a matter in the Superior Court of Justice in Ontario. 

To deal with this scenario and how to make sure that you benefit from the cost structure and the award of costs in the judicial system, we will talk about Rule 49 which deals with “offer to settle”. 

Rule 49 essentially tells you that you can make all kinds of offers to settle during your proceeding; you can put an expiry date on that offer; the other side can counter that offer or accept that offer. 

The most important Rule that I want to focus for today’s lecture is Rule 49.10 which will give you the most benefit when you’re dealing with the cost award in your court action.  One of the conditions of Rule 49.10 is that it has to be made (this offer under Rule 49.10) has to be made at least 7 days before the hearing.  Before your trial begins you must put this offer at least seven days before that. 

Secondly, whatever offer you’re making – that offer must remain open until the commencement of the hearing. There’s specific language that we usually put in these kind of offers.  I’ll show you at the end by way of an example but there are two conditions: 7 days prior to the hearing and must remain open until the commencement of the hearing—it must not expire before then. 

Now if you have made an offer to settle under Rule 49, what are the consequences of that offer?  If you are the plaintiff and you are successful… let me show you the Rule first and then we’ll talk about it.  Here is Rule 49.10: “where an offer to settle is made by the plaintiff at least seven days before the commencement of the hearing; is not withdrawn or does not expire before the commencement of the hearing; and is not accepted by the defendant”.  (Defendant did not accept your offer and it was open until the commencement of the hearing) “… and the plaintiff obtains a judgment as favorable as or more than the terms of the offer to settle…” very important wording.  It’s not that you are successful—you have to be successful, the judgment that you get is the same as your offer or better than that that’s the only situation in which you will get a benefit for the offer that you have made. 

To give you an example you claimed $100,000 in your case and you made an offer to settle for $30,000.  It was a Rule 49 offer—it was made seven days prior to the commencement of your trial or the hearing and it was open until the commencement of the hearing. The defendant did not accept it.  When you’re successful if the court awards you $30,000 or more, then you get the benefit of Rule 49.10. 

If the court awards you $29,500 or $ 29,900, you do not get the benefit of this offer. Let me explain to you what the benefit is and then I’ll come back to this point about what should be that offer. 

The benefit is that you will get partial indemnity cost until the date of the offer.  Let’s say if you made the offer ten days before the trial all the costs that you have incurred from day one from the time you commence your court action up to the ten days prior to the trial you will get your costs on a partial indemnity basis which is 30% to 50% above your actual cost.

But from the date of the offer until the conclusion of trial or until the judgment is given you will get substantial indemnity costs—so the cost that you have incurred from the date of from the date of the offer until the end of trial. Let’s say those costs are worth $30,000 for the trial and its preparation.  Then you will get 75 or 80 percent cost of that value—not the total cost. 

What is important to keep in mind in the difference between the timelines is that you get the most advantage out of a Rule 49.10 offer when you make it earlier in the proceeding.  You want to make this offer right at the beginning when you commence your court action because then whatever costs you have incurred from that time when you made the offer till the end of trial you get substantial indemnity cost—which is more than 75 percent or 80 percent of your actual cost.

Now I want to go back to our point: “where the plaintiff obtains a judgment as favorable or more favorable than the terms of the offer to settle…”.  This is the way the court makes a party to act reasonably.   When you issue a claim the most important thing you are considering is what is it that I’m going to realistically get out of this court and you have to make that assessment accurately or as accurately as possible.  If you claim $100,000 and you make a Rule 49.10 offer to settle for $70,000 just because you wanted more money but realistically you’re not going to get $70,000 and you do not get $70,000, the value of this offer is lost. 

You have to be very, very honest very, very careful and very, very accurate about what is the number that you believe that the court will get you. You want to get a little bit lower than that because you want to succeed. You want to hope that if you’re successful, 100 percent of the time you are going to get at least the same or more than what you have offered to settle. 

The same applies to the defendant.  If you are defending a court action, when you’re making an offer to settle you want to make sure that you want to present an offer that the plaintiff cannot beat at trial.  The judge will give you a better or the same result that you are offering the other side to settle.  This particular sentence compels the parties to act extremely reasonably otherwise they will not get the benefit of Rule 49.10 offer.

It’s very well-thought-out.  It is used as a mechanism to ensure that parties act reasonably and when they act reasonably they get a significant advantage in terms of cost and when they act unreasonably they do not get that advantage.

Now on the defendant’s side, if the plaintiff is successful—take the same example that you made an offer of $30,000 Rule 49.10 offer and then you’re not successful.  You get results which are less than your offer to settle.  Then what happens to the defendant?

Let’s go to the defendants offer: “where an offer to settle is made by the defendant (now the defendant in this scenario is making you an offer or if you are the defendant you’re making the other side an offer to settle) that offer is again …seven days before the commencement of the hearing; it is not withdrawn or does not expire before the commencement of the hearing; and is not accepted by the plaintiff”.  The defendant has made an offer “…and the plaintiff obtains a judgment as favorable or less favorable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity cost to the date the offer was served; and then the defendant is entitled to partial indemnity cost from the date unless the court orders otherwise”.

In this scenario what’s happening is that the defendant made you an offer to settle (you are the plaintiff) and the defendant makes you an offer and you get a judgment again in your favor as a plaintiff you win the case but the judgment is same or less than what the offer was that the defendant had made.

The defendant was willing to give you the same money or more than what you got on the judgment, then what the court is going to do is that you as the plaintiff will get your partial indemnity cost up to the date when the defendant made the offer.  But thereon, the defendant is going to get partial indemnity cost.  You are not going to get the benefit of the cost award in that situation.  Now, the converse is applying.  Now the defendant is benefiting in this case because of their Rule49.10 offer to settle and again this offer is most advantageous when it is made earlier in the proceedings—the sooner you make, the better.

What is the lesson to take? It is that when you make Rule49.10 offers you need to be very realistic about your case, about the outcome of the case and you want to make it as soon as or as early as possible so that you can get most advantages out of your court action. In the last one year there was a case that came out where the plaintiff made a Rule 49 offer—it was an employment law case—right at the outset/the commencement off the court action.  The offer was very reasonable and the plaintiff’s counsel understood at some point that the defendant is going to fight this case aggressively, cause all kinds of challenges for the plaintiff to continue the fight, maybe act unreasonably and, create all kinds of hurdles so the plaintiff had very strategically made this offer to settle Rule49.10 and kept it open until the commencement of trial which is one of the conditions and they were successful. 

The plaintiff was successful in getting a judgment which was same or better than their offer and they got huge cost awards. I believe the value of judgment that they got was about $250,000 but the cost award was about $500,000.  That was a case where a party strategically used Rule49.10 in its favor and got significant—twice the amount of money in cost than the claim that they had made in that court action.

Before we go let me show you an example of a Rule 49 offer that I had made recently in this case.   You don’t have to use the same example.  This is just to give you a sense—in this case the plaintiff offers to settle as follows and (1) there is a date on which the offer is being made (2) that if the defendant pays $17,600 as reasonable notice, $15,000 as general damages and $20,000 in cost award, inclusive of disbursement and HST; (3) that’s if they accept it on a specific date; (4) but then if accepted after January 22^nd, the offer in these two amounts are the same but the cost award is now changed to $20,000 cost plus substantial indemnity cost thereafter. 

It specifically says that that if you accept after this date you will incur substantial indemnity cost.  Then it specifically says here that (a) this offer is made pursuant to Rule 49 and (b) then shall remain open until one minute after the commencement of trial.  We’re making sure that the offer remains open until the trial.  It’s a typical thing the lawyers say “it is open until one minute after the commencement of trial” and if accepted the plaintiff will consent to the dismissal of the court action in the counterclaim and execute a release.  You can use a similar format but the key thing is it you should say it’s pursuant to Rule 49 and it is open until the commencement of trial.

Those are the important things.  Again the key message that you want to keep in mind is that you want to carefully consider the cost consequences of your court action and you use Rule 49 offer (Rule 49.10) specifically, strategically so that you can benefit from the cost award in your favor.

Thanks for watching

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In today’s lecture we will explain to you the Request to Admit Fact or Document in the Ontario civil procedure.  We will explain what this Request to Admit is. Why do you use it? and how do you go about making that request? or answering that request, if you have been served with one?  We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral (if you don’t know a lawyer or a paralegal}

What is request to admit fact or document? “A party can make a formal request (in this court process/in the civil court action) to another party or parties to admit the truth of a fact or authenticity of a document”. If you are serving a request to admit to another party you are asking the party to accept the truth of a fact that you have alleged in your statement of claim or statement of defence (in your pleadings) or if you have served the document as part of your affidavit of documents (that you will use at trial) you are asking the party to admit to the authenticity of that document. 

Let me explain this to you by way of an example which will make it a little bit more clear.  Let’s take a case in an employment law context.  Imagine that you are the plaintiff.  You are a former employee of a company which is the defendant.  You had worked for the company for about 3 years.  Then your employment was terminated.  You commenced a court action for wrongful dismissal damages against the company.  

In that claim you will indicate one of the facts that you will allege which is a relevant fact in cases of this nature what was the total length of your service with that employer.  In this case you had worked for the employer for 3 years. When you go to trial because you have alleged in your statement of claim that you were employed with that company for 3 years you will have to prove that fact. You will have to provide evidence to the court that will show the court (demonstrate to the court) that you were indeed employed for 3 years.  The court will not just take your word or your evidence or at least your statement on its face value. There has to be some evidence to prove that—it could be oral evidence or documentary evidence.  You may need to show your employment letter indicating when you were hired.  You may need to rely on your paystubs or some other form of documentary evidence that you were indeed employed for 3 years—now proving that point that you were employed for 3 years to the court by providing some documents or other evidence will take some time.  It may take about 5 to 10 minutes for you to just prove that one fact to the court that you were indeed employed for that company for 3 years.

One way to avoid that requirement (to prove that fact) is that you can make a request to admit to the employer prior to the commencement of trial. It is done much earlier than the trial time—that you request the employer to admit the fact that you were employed with that company for 3 years and the employer can either admit it if it’s a non-contentious issue. They most likely will admit it or they may deny it. They may not agree that they are admitting to that fact and they’re putting the burden on you to prove that you were indeed employed for 3 years. This is a sort of a benign example but it does get complicated.

For example, you know that in the 3 years that you were employed, the first 6 months you were employed through a temporary agency and you are alleging that the entire 3 years should be considered as your employment service.  The employer may be arguing that the first 6 months should not be considered part of your employment service because you were through a temp agency. It can get complicated.

 If it’s a contested fact chances are that the other party will not admit to it. But then there is downside to it for the other party if you are able to prove your fact.  There is a strategic reason for why you want to do that which I will explain in the following slides. You can ask through the request to admit the other party to admit to the truth of a fact or as many facts as you want.  Similarly, you can ask the other party to admit to the authenticity of certain documents. 

In this case you may say, “Hey, the defendant (the company) here is my employment contract.  You had issued it to me. Here I have a copy of this. I’m serving it to you as I will rely on this document at trial to show that this was my indeed my employment contract. I want you to admit to the authenticity of this employment contract because if the authenticity of the employment contract is admitted by the other side, then you don’t need to prove to the court at trial that the document that you are presenting is indeed a copy of your employment contract.  This is to give you a sense how it happens at trial. Every fact that you plead, every fact that you present you have to prove it either by documentary evidence or any other evidence but you have to prove that (you have to provide evidence). Similarly, every document that you present, you have to prove that that document is an authentic document. That’s the burden of proof that you will have and by serving this Request to Admit you can at least overcome some of those challenges by asking the other side to admit to the truth of fact or authenticity of a document.  They can do the same with respect to their facts and document.

This particular issue about admitting certain facts are true facts or the authenticity of documents is dealt with under Rule 51.  You can read that Rule but I will give you some of the important aspects of that Rule here so that you have a brief overall understanding of what this Request to Admit is about and how to effectively use it.

1st of all the Rule 52.02, you want to read that. And that Rule explains that you can serve this Request to Admit through Form 51 A.  I can quickly show you this form. This is Form 51A, a Request to Admit.  I’ll come back to it and begin to give you a sense of what is contained in that Form 51A and how do you fill that out.

Once you have served Form 51 A, your Request to Admit, the other party has 20 days to respond.  It’s set in Rule 51.03(1), that the party has to respond to your Request to Admit within 20 days of its service and if the other side does not respond then it is considered a deemed admission that you have served your Request to Admit—the court will treat that failure to respond as an admission on their part that they have accepted the facts that you have requested them to admit or they have accepted the authenticity of documents that you have asked them to admit.

This is the most important part that I want you to keep in mind which is the main reason why we want to make this Request to Admit—if a party refuses to admit a fact or authenticity of a certain document and at trial you are able to prove that fact or you’re able to prove the authenticity of that document, then there are negative cost consequences for the other side.  What the court is doing here is making the parties reasonable with respect to the things that they have to prove at trial.  If there’s something that is reasonable to accept because the other party will be able to prove it at trial, then you’re better of admitting to the truth of it because if you don’t and you’re not able to disprove that fact or you’re not able to disprove the authenticity of that document then the court will penalize you by awarding costs against you—by awarding you lesser costs than you may be entitled to.  This is one of the reasons why a Request to Admit is important. 

There are other strategic reasons for this Request to Admit.  It is a very important tool.  I want to give you a little bit of a broader understanding of what we can do with this tool.

One of the things that you can do or achieve through Request to Admit is that you can narrow down contentious issues.  In an average Statement of Claim you may have 40 to 50 facts that you may have pleaded, that you now have to prove in order to receive the remedy that you’re seeking from the court.  If you can filter out non contentious issues—for example, if you have to determine the length of your service and it’s not a contentious issue why not make it a Request to Admit and have the other side admit to it because then that’s one less issue that you have to prove (one less fact that you have to prove) to the court. 

You are saving your own time, your own financial resources and also judicial resources. You can narrow down contentious issues so that you can really spend the time for your hearing or for your trial on the issues that are genuinely contentious.  That is where you really need the court’s judgment. 

By narrowing down the contentious issues you obviously limit the length of trial.  If you have reduced it by 5 minutes to prove every single fact or 10 minutes to prove every single fact and if you start cutting down the facts that you have to prove at trial, it will obviously reduce the time (the length) of trial—less time and you will incur less cost and you will save judicial resources, as well. 

Another part that you want to keep in mind is that by requesting the other side to admit certain facts and documents you can actually control the scope of issues at trial.  This is a bit of a subtle point but an important one because sometimes you may ask the other side to admit certain benign facts but by admitting those facts you put yourself in a position where you are able to present your case better.  I can again give you an example of an employment law case. 

One of the factors that you may have to prove at trial is, or the other side (if the company is on the other side) may challenge whether you made efforts to find another job (which is called mitigation efforts).  You may have applied to 450 to 600 jobs and had not found a suitable comparable job that you were looking for. You have all of the evidence to show that you applied to this company and that company and you can go through each job search—all those 600 job searches—which is exactly what you did in terms of your mitigation efforts. 

In a trial you obviously have to prove each and every job search to show that you had applied to 600 companies or 600 advertising jobs—you applied for them and did not find a job.  One way you can shorten this is by presenting to the company that look I’ve already provided you with all the job searches that I’ve done: I’ve given you the names, I’ve given you the contact information and whatnot and based on all of the documentary evidence I’ve given to you I want you to admit that I have made sufficient efforts to mitigate my damages.  That’s one thing that you can do. Then when you do that you can actually put the company in a bit of a complicated situation because if they admit to it that yes you have made sufficient efforts that they are satisfied with it then a large portion of the fight at trial has been eliminated.  You have put yourself strategically in a good position because you now have control the scope of issues that will be at trial and this major portion of the issue is not going to be litigated because the other side has admitted to the truth of the facts that you have made sufficient efforts. 

On the other hand, if they deny it and you have to go through each and every item of your job search out of from 1 to 600, then you know it obviously creates a huge problem for the other side because if you are able to prove it—that is a significant amount of time that you’ve spent in order to prove that. 

While you’re going through that exercise and if you’re able to continuously show that you actually made those efforts and the company has not been able to create significant doubts in your testimony, then you have proven your part of this case, you have earned more sympathy from the judge, and made the judge at least think that the other side has acted unreasonably in not accepting 600 job searches—which were significant when you looked for a job.  That’s one way that when you think about the Request to Admit strategically you can actually control the scope of how and what issues are presented at trial and hopefully you can agree on the issues that are more favorable to you and then continue with the trial in that way.

Finally, as I’ve indicated there are cost consequences.  It is very important that you trigger cost consequences by making appropriate Requests to Admit because at the end of the day even if you’re successful and you get your damages it is very important for you to obtain the best cost award as possible because that is also a significant investment that you’ve made in your action. 

Let me quickly go to Request to Admit and then we’ll conclude this lecture.  It’s a pretty straightforward form.  You basically say “You Are Requested To Admit, for the purposes of this proceeding only, the truth of the following facts…” and then you list the fact in a numbered paragraph. 

You can say I want you to admit: 1. The plaintiff was employed with the company for 3 years (the plaintiff was employed with the defendant for 3 years). Fact number 2. The plaintiff is 51 years old or whatever other facts that you want the plaintiff to admit.  You put them in paragraphs consecutively.  Similarly, the next paragraph is for the documents and you can say: “I want you to admit the authenticity of the following document/s”. And you identify the document appropriately.  For example, if it’s an employment contract of the plaintiff—Employment contract of the plaintiff, so and so (name), dated so and so (date) comprising 5 pages or whatever—so that the document can be correctly identified. 

Then you attach that document with this Request to Admit and then you fill out the date and the name and who you are serving with their information and you send it by fax or other means that are permitted under the Rules. And, similarly, when you’re responding to it—you basically type it here “A Response” to Request to Admit and you take the fact and just copy the fact as it is presented and you type in your response against it.  Then you take another request (whatever the specific Request), you copy it and paste it here. Then next to that you type out your response. 

Similarly the same goes with the documents.  That’s all you have to do.  You serve it back on the other side within 20 days and remember that if you have not responded within 20 days then the court will consider that you have admitted to the truth of the request to admit that has been made.  It is a great tool if you use it strategically. I hope that I’ve given you some understanding of how to effectively use the request to admit and how to deal or respond to requests to admit in a civil proceeding in Ontario.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about Amendment of Pleadings which is covered under Rule 26 of the Rules of Civil Procedure in Ontario.  We begin with our usual disclaimer that this course is not legal advice if you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

What is meant by amendment of pleadings?  The basic principle you want to keep in mind is that you can only get from a court what you have asked for in the pleadings.  What does that mean? If you have asked for damages of $100,000 in your pleadings and at trial you are hoping that because your case was so good the judge will award you $250,000, that’s not going to happen because you have only asked for $100,000. 

Even if the judge believes that you could have gotten more damages or you should have been entitled to more damages but because you have not asked for it you will not get it.  That’s the basic thing so you have to consider pleadings and what you’re asking to be contained in the pleadings (within the four corners of those pleadings).

Similarly, let’s say that you want the court to award you damages for mental pain and suffering but if you do not ask for damages for mental pain and suffering—if you do not plead that tort of mental pain and suffering, you will not get damages for that.  If you do not ask for punitive damages, you will not get punitive damages.

The basic thing that you want to understand is that the court will only grant you something that is contained in your pleadings and if it’s not in the pleadings you will not get it.  If you understand that, then you realize that your pleadings are very important, whether it’s a statement of claim or statement of defence—the documents are important.  And what you are asking the court to do? Either to accept certain facts as true or to provide you certain remedies—you have to ask for it. 

Just a quick reminder for those people who do not realize what pleadings are.  Pleadings are statement of claim, statement of defense, reply, third party claim, cross claim, etc.  Those are the basic documents in which parties lay out their position for the court in terms of claim, in terms of defences and in terms of claiming any remedies from other third parties.

Why you may need to amend pleadings?  There could be multiple reasons why you may need to amend pleadings and I’ll give you some examples.  (1) You may need to add delete or substitute parties.  You started a court action and then you realize at some point that there are additional parties that you want to add as defendants in your court action.  Then you have to amend your pleadings to add those parties or that party into the court action. 

Or, you may have misspelled the party’s name and when you have to correct that spelling mistake then that will be considered a substitution of parties.  You will have to amend your pleadings to actually correct the spelling of that party’s name. 

Similarly, you may realize that you no longer need a party or you don’t think that the party that you have named as a defendant should not have been a party and you want to delete that party’s name—you will have to amend the pleadings to get that. 

Similarly, you may have made mistakes in your pleadings, you may be looking for damages for $250,000 and you may have inadvertently put $25,000.  If there’s a mistake and you want to correct it you, will have to amend the pleading to fix that.  

You may realize that there are new facts that are relevant to your case, that you have not pleaded previously and you want to add those facts into your pleadings—you may need to amend the pleadings. 

Similarly, you may have causes of action (cause of action is the legal basis of something that you’re asking the court to do)—for example, as I said tort of mental pain and suffering could be a cause of action that you have not pleaded or you may have pleaded negligent misrepresentation but you want to add fraudulent misrepresentation into the cause of action that you are asking the court to grant you so you may need to change, add or delete causes of action. 

All of these circumstances are ones in which you will have to amend the pleadings.  Then again, you may want to change the amount of damages you are claiming—you may add damages or reduce damages or delete damages—you will have to amend your pleadings to do that.

Where does the right to amend a pleading come from? This is contained in Rule 26.01.  The most important part of the Rule that you want to understand is the language that is used in this Rule “the Court Shall grant amendment unless…”  Let me take you to the Rules.  We will quickly read it:  Rule 26.01 says:

“On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by cost or an adjournment.”

The important part is that the Rules require the judge to grant to you the opportunity (to grant you the permission) to amend your pleadings at any stage—it could be right at the time of trial or it could be just before you commence the trial and you want to amend your pleadings and the court shall grant it to you.  

The exceptions are that granting you that amendment, at that time, is going to prejudice other parties in such a way that prejudice cannot be compensated by cost because the court can award costs against you for bringing these amendments in a delayed fashion or the court could grant an adjournment.  If you ask for an amendment at the eve of trial the court may believe that you may be granted that amendment but it will be unfair to the parties to respond to that the next day at trial the court may grant adjournment.  If the court can compensate your delay by awarding cost or by granting adjournments then the court shall grant it. 

Generally, the basic principle of amending the pleadings is that the court is required to grant you to make your amendments because the court wants each party to present their case in the way they want to present it—to set out the causes of action; to set out the facts as they deem appropriate even if they are coming with those amendments later in the court process.  

But you want to remember that the basic Rules of the pleading still apply.  What that means is just because you are including something as part of the amendment does not mean that you can do anything with those pleadings.  For example, if you’re what you’re asking the court to amend is frivolous or vexatious; the court may not allow it.  The Rules are the same—that what cannot be included in the original statement of claim will not be allowed to be included later just because you are doing it by way of an amendment. 

Similarly, if your limitation period is expired, then the court may not grant you the amendments because the time to add a party, for example, has expired (the limitation period is expired).  That party may have a valid defence to say that such amendment may not be granted because the limitation period is expired.  The important point I want you to remember is that the basic rules of pleading still apply to any amendments that you are seeking.  

Now, how do you amend a pleading? Rule 26.03 covers that.  I’ll give you three scenarios in which the amendments are possible.

(1)  first scenario is without the leave or consent of the court.  You can just go ahead and have the amendment done and file it with the court.  That’s the first scenario. The easiest one

(2) The second is on consent of all parties.  

And (3) then third is with leave of the court.  Let’s go through each scenario one by one.

(1)  Without leave or consent: there are two conditions that you need to meet in order to amend your pleadings without consent or without leave of the court.  The first condition is (a) that the pleadings are not closed.  And what is meant by pleadings being closed?  (i) I’ve covered it in another lecture but Rule 25.05 is the one that describes when pleadings are closed.  

There’s a specific meaning of these words pleadings being closed.  Pleadings are closed when either you have or a party has delivered their reply—meaning they have served it and filed it with the court or the time for the delivery of reply has expired.  That’s number one and (ii) number two every defendant who is in default, has been noted in default. 

Once these events have occurred—either the reply is delivered, and every defendant who is noted in default is noted in default, then the pleadings are considered closed.  As long as the pleadings are not closed you can go ahead and amend your pleadings.  You do not require anyone’s permission prior to the close of pleadings.  You can simply amend your pleadings—go to the court office and have the Registrar issue you the amendment. 

(b) The second condition is that the amendment you are seeking prior to the close of pleadings does not include addition, deletion or substitution of parties.  If it’s an amendment that does not include addition, deletion or substitution of parties and pleadings are not closed you can go ahead and amend those pleadings without permission of anyone.

(2) On consent: this is pretty straightforward.  You need to obtain consent of all parties if you want to amend your pleadings.  If the pleadings are closed, at any stage during the court action, you can write to the other parties and say that I wish to amend my pleadings in this form.  You provide them with your draft amended pleadings and obtain consent of all parties.  Once they provide you the consent, you file that consent with the court along with your amended pleading.  The Registrar will amend your pleadings. 

Obviously, if you do not get the consent of parties there may be a situation where a party may not grant you their consent, then, you’ll have to bring a motion and seek a court order to amend your pleadings.  Now, remember, that when we’re talking about the consent of parties we’re talking about consent of all parties.  If you are adding, deleting or substituting parties, then you need the consent of those parties that you want to add.  If there’s a party that you’re going to add, which is not presently a defendant or a party in any way and you want to add that party as a party in that court action then you need (you require) their consent as well.  (3) And third is leave of court: Obviously, you can bring a motion under Rule 37 and you ask the court to grant you the amendment that you want.

How do you actually make the amendment on the document? It is in a specific way.  The Rules are very specific in how you make those amendments.  I’m going to go through that very quickly with you.  I’ll actually show you a quick example of one of the amended pleadings that I have. 

(1) First of all you have to add the word “amended” to the title of the pleadings.  (2) You have to keep the original issuance date.  (3) Then there is another option which is called “fresh as amended” which I will show you.  Let me see if I can show you a pleading. This is an example of a pleading.  I have taken away the court file numbers and parties name but you can see here that originally it was a statement of claim and I had amended it.  I have added amended and I’ve underlined it—which shows that I’m seeking the amendment of this claim.  Then whatever the original issuance date was—in this case it was February 10^th 2016.  You keep that—you do not change the date to the current date.  You keep the original date as it is because when the registrar will amend it, the Registrar will put a stamp here and then put an issuance date here which will be the date of the amended statement of claim.  But you do not change this date.  

If you scroll down, you see that I’ve added this paragraph that my client is seeking short-term disability benefits for a certain amount and this was not previously claimed.  We have added a sub-paragraph here and that paragraph is underlined.  Every single amendment you make needs to be underlined.  That’s the important part that you want to keep in mind. 

Then similarly, if you scroll all the way down you will notice that the back page also takes the word amended and you provide that.  If you have multiple amendments—you made this amendment and then later on you realize that you need to amend it further.  Then what you have to do is you add another word amended here and then you put another underline—so two underlines will indicate that there have been two amendments to the document.  One underline indicates one amendment.  If I have to amend it again I will add another word here saying amended—so that indicates that it has been amended twice and underline it and so on and so forth.

What you want to keep in mind is that when you are drafting pleadings originally, not the amended ones, you do not want to use underlining at any stage in the pleading.  You will see that none of the headings are underlined because the underlining in Rules is specifically used to show amendments. If you underlined in the original pleadings—that becomes confusing when you are actually amending the pleading, for any reason.  Ideally when you’re drafting these pleadings you do not want to use underlining in your pleadings.

“Fresh As Amended” is another term that you can use. Essentially what it is—if your changes or amendments are so cumbersome that it will be difficult or inconvenient to read that document, then what you can do is you create a fresh document with all the changes that you want.  You do not underline anything except that you change the title to “Fresh As Amended”.  The rest of the pleading will be the same without any underlining because it’s a fresh document.  Over here you will create the wording “Fresh As Amended”.  That will indicate to the reader that this is a fresh statement of claim which has been amended and it has been amended without the underlining because by reading through those under linings it would have been cumbersome and difficult to read.  As I said, (a) for multiple amendments you’ll have to add additional lines for each occasion and (b) then do not underline the contents of the pleading unless you’re making amendments. 

Issuance and service of amended pleadings:  You take the amended pleadings to the court, the Registrar will issue the amended pleadings and put an issuance stamp on it.  Then you must serve the amend pleadings on each party.  You follow the Rules of Procedure about service and also about if you were served with amended pleadings then what do you need to do with respect to any filing of any response or delivery of any response.

In conclusion, you need to carefully consider whether you required the amendment or not.  Sometimes its strategic, sometimes it’s essential.  You want to consider the appropriate time for amendment.  Do you need to wait till trial? Do you need to wait till the end of examinations for discovery?—which may be an opportunity to revisit your case and see whether the amendments are appropriate or not.  You want to make sure that you follow the applicable Rules and once you have amended your pleadings you do it properly—go to the Registrar have it issued and serve it on parties.

Hopefully that explains to you how pleadings are amended under the Rules of Civil Procedure in Ontario.  Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In today’s lecture we’ll talk about Rule 57 of the Rules of Civil Procedure in Ontario.  This Rule deals with award of costs in the proceeding.  As you know, a proceeding could be a court action or an application in the civil courts in Ontario. 

We start with our disclaimer that this lecture is not legal advice.  If you have any specific questions you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

What are costs in a proceeding?  There are two components to cost in the proceeding. (1) is lawyers’ fees.  If you have retained counsel either for the entire case or partially for the case you may have incurred legal fees from the lawyer and you may be entitled to recover those legal fees from the other side if you’re successful. 

(2) The second component of costs are disbursements.  These could be mediator fees, investigation fees (if there was an investigation conducted), copying, binding and faxing charges, court fees for issuing the claim, filing the defence and bringing a motion.  There are fees for different steps in a court process. You may have paid those fees into the court—attendance money for witnesses all these kind of out-of-pocket expenses are considered disbursements.

There are three types of costs award. (1) First one is called full indemnity, which as I noted here, is extremely rare.  Full indemnity what it means is that assuming that for as an example you have incurred $60,000 in total cost—which includes your lawyer fees, disbursements and taxes and you’re asking the court that because you’re successful in your case you want the other party or parties to pay you in addition to the damages the entire $60,000 of your cost. 

It is very rare in Ontario—extremely rare in Ontario that the court will award full indemnity on a case.  In fact, in my 10 to 11 years of practice, I have never seen a case where the court has awarded full indemnity.  Whatever you spend you’re not expecting to recover all of it in legal fees and disbursements even if you are successful.

(2) The most common type of cost award is called partial indemnity.  To explain it to you in very simple terms: you are expecting to recover about 35 to 50 percent (around that percentage) of the actual fees that you have incurred.   If you have incurred $100,000 as the actual legal fees and disbursements, you can potentially recover 30-35 or up to 50 thousand dollars generally on a partial indemnity scale.  In other words, you’re not recovering the full cost that you have actually incurred on your case.

(3) The third kind of award is called substantial indemnity, which is higher than partial indemnity.  In this case you are expecting to recover about 75 to 80 percent of your actual cost.  Based upon the cost awarded, you can imagine that the cost award is quite important.  Let me explain to you this by way of an example. 

Imagine that you fought a case where you were claiming about $30,000 in damages.  To fight this case and take it all the way to trial you retain counsel. And your total fees for a three to five days trial in Ontario or in Toronto would be approximately $60,000.  This is a realistic number—if you start a case in Ontario, in the Superior Court of Justice and you take it all the way to trial and you complete a trial (which is three days or a little bit longer), it is reasonable to expect that you will incur about $60,000 in legal fees.  Let’s take this scenario in which the court agrees to award you the entire amount of damages.  You get full $30,000 but for some reason the court does not agree to award you any costs.  The outcome of this case is that you are literally out of pocket by $30,000—even though you were successful and got full damages. 

As you can see the importance of cost of award is very obvious.  You want to fight a case and you want to win a case in a way that you are successful in obtaining a judgment or not getting a judgment against you if you’re a defendant—at the same time you are not substantially out of pocket for continuing this fight. 

You have to be very careful about the cost in a proceeding because we as lawyers know that a lot of times it is the cost that drives the litigation. For example, if we are involved in a case which is $30,000 or $50,000, we are always worried about what are the costs of that proceeding at certain point and how it can play a role in our client or the other side deciding whether the case is worth continuing or whether a settlement may be a better option. With that in mind comes this option of Rule 49 which is in the Ontario Rules of Civil Procedure. It talks about how to strategically make offers to settle so that you can benefit better—even if you continue a court fight for an amount that is not substantially very high.  Because the topic is important, I will provide details of Rule 49 in a separate lecture. 

Coming to Rule 57 in the Rules of Civil Procedure of Ontario which deals with costs.  The first thing you want to remember about cost award is that it is usually awarded after each step in a proceeding or after trial.  If you have brought a motion or you are dealing with a motion, defending a motion within your action, at the end of that motion the court will generally award cost to the successful parties.  It also happens sometimes that the court may reserve the cost award to the trial judge, but usually the motion judge or the motions master will award cost to the successful party after each step.  Obviously, at the end of trial the successful party usually gets cost award in addition to the judgment.

The key principle that you want to remember about cost award is that it’s at the discretion of the court.  That’s one thing that you want to carry from this lecture—that it is the discretion of the court to award cost and whatever the Court finds that this should be an appropriate cost that is what the court is going to award and what you want to remember is that because it’s the discretion of the court it is very rare that if you appeal a cost award it may be changed or overturned by an appellate court.  

Because of the discretion of the court whatever the judge or the master has decided that will usually remain the cost award in your proceeding.  Now usually cost is awarded to a successful party and I say usually—but it is possible for the court to award cost against a successful party. Rule 57.01 (2) specifically allows the court to award cost against the successful party.  You want to keep this in mind because I have seen cases where a party was successful, they won the case got the judgment in their favor and yet because of their conduct during the action or because of the factors that the court considers in awarding cost the court actually awarded cost against the successful party it doesn’t happen that often but it is possible so even if you’re successful you want to be careful about how the cost award is going to play out in your specific proceeding.

What are some of the factors that court considers in awarding costs?  It’s under Rule 57.01(1). 

One factor is lawyer’s experience/rates, hours: the lawyer that you’ve retained how experienced that lawyer I; what are the rates that the lawyer charges; and how many hours the spent on your case. 

Another factor is ability of an unsuccessful party to pay.  It is a factor—just because you cannot pay the costs, does not mean that the cost will not be awarded against you.  But it is one factor that the court will take into account—whether you have the ability to pay costs and what is your ability to pay “cost” amount?  

Amount claimed and recovered: this is an important factor.  It was at issue in one of the recent cases in cost award.  If you have claimed $20,000,000 in a case and you recover $20,000, do not expect that the court is going to award you significant costs—because you have claimed a hugely exaggerated amount—whereas the actual recovery was a small fraction of that.  This is something to consider when you’re making those claims you want your claim amounts or monies to be somewhat realistic of what you can potentially recover. 

Complexity of the case, complexity of the issues is also a factor when the court is considering the award of cost. 

Importance of issues: if you brought a court action which is not only helping you in succeeding in whatever you’re claiming but it is also beneficial to the larger public (it could be a public issue), then the court will consider that when awarding costs.  In circumstances where you commence the court action which was in public interest and even if you were not successful the court may take that into account in deciding that you may not have to pay significant costs because you raised an issue that was helpful to the public at large.

Conduct of parties: this is a very important factor and the courts do consider this very seriously in deciding what are the appropriate costs.  To understand this matter: if a party acts inappropriately or unreasonably in the conduct of an action – not just at trial but from the time the action was commenced to the time it goes to trial – if one party for example takes steps that unduly delay the proceeding to move forward, brings motions that are unwarranted just to cause trouble to the other side, just to make it financially difficult for the other side to continue the litigation, then all of those factors are considered at trial and the court may because of the conduct of a specific party award costs a bit heavily against that party.  Conduct of parties is important.

 Refusal to admit: if one party has asked the other party / submitted a request to admit and asked for certain facts that are not controversial or even if they’re controversial but they believe (one party believes) that those facts were true, the other party can submit or serve a Request to Admit and if the second party refuses to admit those requests then there could be consequences to that. This is also an important topic strategically in a court action and I’ll have a separate lecture on refusal or request to admit. There could be any other matters that the court believes that should play a role in deciding what are appropriate costs and the court will take that into account in awarding costs.

In conclusion, the main thing you want to keep in mind is that you always want to carefully consider cost consequences because costs play a significant role in how the overall outcome of your case is going to take place.  You have to take steps and implement strategies so that even if you are successful there are no negative cost consequences to you or even if you’re unsuccessful you are managing the cost consequences to the minimum.  Similarly you want to implement strategies so that not only that you get highest damages or get the case thrown out against you if you’re defending it, but you’re able to get highest cost award so you’re not financially disadvantaged at the end of trial.

Hopefully this gives you some understanding of a cost award. I will at the next lecture talk about Rule 49 “Offers”, so that you can get an overall perspective on cost and how to play with cost strategies in your proceeding.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Sometimes you receive pleadings from the other party which contain certain allegations that you’re not really clear about—you don’t quite understand exactly what the other side is alleging.  Since you don’t understand what is being alleged, it is very hard for you to respond to it.  In those circumstances you can actually ask the other side to provide particulars.  How do you go about doing that?  We will explain that in this lecture. 

We begin with our usual disclaimer that this course and lecture is not legal advice.  It is only for educational purposes.  If you have any specific questions about your case you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

We’ll begin with a basic Rule of all pleadings which is contained in Rule 25.06 (1), which essentially says that the pleadings—whether it’s claimed, defense or reply or cross claim should contain a concise statement of the material facts.  Let me take you to the Rule that we can follow: Rule 25.06.  By the way if you’re drafting pleadings it is very important for you to review this rule in detail because it applies to what kind of content you can provide in your pleadings.  Rule 25.06(1):

“Every claim shall contain a concise statement of the material facts on which the party relies for the claim or defence but not the evidence by which those facts are to be proved”

We’ll talk about the Rules of pleading in a separate lecture.  For today’s lecture we are focused on a concise statement of material facts.  When you are drafting a pleading you have to specify each fact that you’re relying on to support your case.  A lot of times you get pleadings that contain allegations which are bald or vague allegations and they are considered improper pleadings and problematic.  If you are faced with allegations that are improper or bald allegations then how do you deal with those allegations?  How do you respond to those?

Let’s take an example of a bald allegation and then we will explain how to deal with that specific allegation.  In an employment law context, let’s say that one fact in the statement of claim alleges that “in the last two years the plaintiff’s manager frequently harassed him”. 

There are three things that I have underlined: (1) two years—it happened in the last two years and the plaintiff’s manager (2) frequently—how do you define frequently? How many times did it occur? When did it occur exactly?  (3) Harassed the plaintiff—what did the manager exactly do?  This is a very broad, vague allegation and if you’re faced with this allegation you actually don’t need to respond to it because you don’t know the particulars of this allegation.

How do you respond to a bald allegation? I could suggest two ways.  There could be three ways or more but the two ways that I can suggest are:

(1) that you basically ignore the allegation. How do you ignore it? You respond in your defence or reply or whatever documents you are preparing something to this effect (you don’t need to copy it exactly) that “…the plaintiff has failed to provide the particulars in paragraph so-and-so  (they have not provided i.e., the plaintiff has not provided it), … in the absence of which the defendant is unable to plead over…”.  You’re basically saying to the court because I don’t know what the allegation is, I’m unable to respond to it.  And if the plaintiff provides me with the specific allegation, I will respond to it.  This is sort of a broad response to a broad allegation.

There is a sweeping statement that says the manager has harassed the plaintiff, in the last two years, frequently.  Your response is that’s not correct. We deny the allegation but we are unable to “plead over” because we don’t know the specifics of that allegation.  Or, (2) the second thing you can do is that you can demand particulars. 

Before preparing / drafting or serving your responding pleading, you can ask the plaintiff in this case or the other party whose pleadings are that “I want you to provide me the particulars of this allegation because once you provide me the particulars of this allegation then I will be able to respond to it”.  You can ask for it and demand for particulars is dealt with in Rule 25.10.  If we scroll down to Rule 25.10, there you go:

“where a party demands particulars of an allegation in the pleading of an opposite party and the opposite party fails to supply them within seven days the court may order particulars to be delivered within a specified time”.

When you serve a demand for particulars then the other party has seven days to provide you the particulars.  If they don’t provide you the particulars, you can bring a motion in the court and get a court order to compel the other side to provide you the particulars.  You can also bring a motion to strike.  If the allegation is vague and it does not contain any specific allegations, you may ask the court to strike that allegation outright if the other party is not providing the particulars.  You can demand for particulars in this instance. 

What would you do? You will prepare a document called the Demand for Particulars.  That will be the heading and you can say something to this effect “provide the date and time of each alleged instance of harassment in the last two years”.  This is important – you want to know each instance that the plaintiff is relying on in support of the allegation of harassment. 

If you are aware of each instance or allegation of harassment then you can respond to it. You can say on such and such date when the plaintiff is alleging that the manager harassed the plaintiff the manager was on vacation—for example.  Or the manager did not do it or whatever the issue was – whatever the fact that you may rely on in response to that.  You can also say provide me the particulars of the alleged acts of harassment.  What exactly did the manager do? Because when the plaintiff is using the word that the manager harassed the plaintiff, these are words of judgment.  This is something that the court is going to determine based on the very specific act that the plaintiff is alleging.  What exactly did the manager do?  If the manager only asked the employee or the plaintiff to complete his or her work within the deadline that has been assigned to him or her that may not amount to harassment. 

But at the same time if the manager used an F word in correspondence with the employee, that may amount to harassment.  Exactly what happened?  What was the instance? What was the alleged act?  If you’re responding to it, you are entitled to know that.  Then you provide your position. 

Why this discussion is important? – because in our everyday life whether it’s politics or media or our social life it is not uncommon that we make these sweeping statements about something or about someone.  That person does this all the time or this has been happening to me all the time or frequently and we make these judgments.  In a court of law that is not acceptable.  You will have to provide every single fact on which you are relying on and then you will have to prove your fact. 

An analogy for building a case in court and demonstrating the merits of your case could be like building a house.  Imagine that each fact is a brick that has to go in the wall.  You have to clearly present each fact on its’ own.  You have to provide the evidence to prove that fact.  Once that fact is proven it goes in the wall.  If you’re not able to prove a fact, then it wouldn’t go in the wall.  That’s how on a brick by brick basis, on a fact by fact basis, you’re hoping to construct a case that demonstrates that you are entitled to the remedy that you’re seeking from the court. 

That’s why it is important when you are drafting pleadings to be clear and concise and sometimes to be vague—if that is a strategy that you need to adopt in your particular pleadings.  I have oftentimes drafted pleadings that have contained vague and bald statements.  They serve a particular purpose.  It’s all part of a larger strategy.  Sometimes you want to create a narrative based on all these bald allegations even though the very material or two allegations are few within your pleadings but sometimes that’s a strategy that you want to adopt and if you are faced with a similar strategy you want to be capable of understanding what the other side is doing to you and then defend yourself properly.

In conclusion what I want you to understand is that this demand for particulars is an important tool in your fight in a court action.  Why? Because it allows a party / it allows you to understand clearly the allegations that you have to defend.  Because if the allegations are not clear it will be hard for you to defend yourself and you don’t want to be defending yourself on bald and vague allegations. 

The other thing it does is it restricts the other party from creating an unfavorable narrative based on unspecified allegations.  The other party may use this as I said earlier to create a narrative—repeated words—constantly, every single paragraph, the party is repeating that the manager has been harassing and the manager has been harassing other people.  That may not even be a relevant pleading.  The manager did that in the previous job.  

All of these things may not be the material facts that the party could rely on in a court action.  With respect to the specifics if you don’t ask for it you may unwittingly, not recognizing that the other side is actually creating a narrative against you, which they are not allowed to do based on the Rules of pleadings.  You can challenge that.  Once you demand for particulars you force the other party to limit its case to specific allegations.  That’s what the case is going to be fought on—the very specific allegations that are being made (that you are making in your pleadings).  The court needs to determine whether those factual allegations are true and in the end whether those allegations support legally the case that you are pleading before the court.

Hopefully, this explains to you how to effectively use demand for particulars and how to respond to those. Thank-you for watching and I look forward to seeing you in the next lecture.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk about the computation of time as is required by the Rules of Civil Procedure so you can calculate the time correctly with respect to your civil proceedings in Ontario. We begin with our usual disclaimer that this course is not legal advice so if you have any specific questions regarding your issues you must contact a lawyer, a paralegal or the Law Society of Ontario for any referral.

Why do we need to correctly compute the time? Why is that important? It’s important because (1) if you are not filing or serving or delivering the documents pursuant to the Rules and if you try to file a document with the court office which is beyond the timeline prescribed in the Rules of Civil Procedure, the court office will simply not accept the documents.  They don’t have this discretion that if you are late in filing some documents and you are being polite to the court office staff that they will accept your documents—they will not.  They will simply abide by the Rules.  If you are late or if you have not followed the timeline within the Rules then you will have to either obtain consent of the parties for the late filing or you’ll have to get a court order to change the timeline or file the documents beyond the time line that is prescribed in the Rules. It is very important that you follow the timelines within the Rules at the outset. Now Rule 3 in the Rules of Civil Procedure is the one that deals with the computation of time.  I will give you some of the important aspects of that Rule.  Few things that you want to keep in mind are that when you are calculating time between 2 events you exclude the 1st day of the event (the 1st event) and then you include the last day off the 2nd event. (2) Secondly when you are given a time period which is less than 7 days you do not count holidays.  You want to keep in mind that when time expires on a holiday, then whatever you are required to do, whatever expiry date is on the holiday you can do so on the next day—which is not a holiday. For example, if the last day of serving some document was Sunday then you could do it on Monday—if Monday is not a holiday.  (3) The other part that you want to keep in mind is that any documents that you serve after 4 pm or on a holiday—they will be considered as if they are served on the next day, which was not holiday. That’s important 4 p.m. is your cut-off time period of serving the documents on the same day.  The only exception to that is a document which is an originating process—that is not considered here. Now, if a Rule provides for a time of day in the specific delivery or service of document then you have to treat that time as the local time in the place where you are serving that document.  

Let me explain these Rules by example so that it will be a bit more clear to you how you actually compute the time.  Let’s take the example of service of statement of defence which is a common document that you may need to serve if you’re defending a court action.  The timeline for service of documents is in the Rule 18.01, which essentially says that if you have been served with a statement of claim within Ontario, then you have 20 days from when the claim was served, to deliver your defence/to serve your defence and file it with the court.  Certainly, the filing may be delayed a bit as long as you’re not noted in default.  But certainly the service of the statement of defence has to be done in 20 days. How do you calculate the 20 days? Let’s take it by way of an example.  Let’s say that the claim was served on you on April 1st 2019.  1^st event that occurred which was the service of claim was April 1st 2019. 2^nd event which is going to happen is the service of defence.  If you calculate 20 days you exclude April 1^st, then you calculate 20 days it falls on April 21^st 2019. April 21^st 2019 is actually a Sunday.  The 2^nd event is a holiday.  Then, according to the Rules, statement of defense now is due by April 22^nd 2019.  You excluded the 1^st event, you included the 2^nd event—it so happens that the 2^nd event falls on a holiday.  The next working day is not a holiday—April 22^nd.  Your statement of Defense is due on April 22^nd 2019.

Let’s take another example.  This is service of pretrial conference brief under Rule 50.04.  Why I’ve chosen this example is because this is a time period which is less than 7 days. A pretrial conference brief needs to be served and filed with the court at least 5 days before trial.  Let’s take another example of that.  Let’s say the pretrial is scheduled for April 22^nd 2019.  You have to serve it 5 days before April 22^nd 2019.  I have calculated this to be April 15^th 2019. And how did we do that—we excluded the 1^stevent which was April 22^nd 2019 and then we do not count the holidays.  Therefore when we include the 2^nd event the 5 days falls on April 15^th 2019.  A lot of times people make this mistake. They end up counting the holidays and then they assume that their time period for delivering the pretrial conference brief would have been April 17^th—which is not the case.  If you show up on April 17^th or 16^th and try to file your pretrial conference brief at the court office it will not be accepted.  It’s very important to calculate these time periods correctly.

Now what happens when you are late in serving, filing or delivering a document?  What are your options? You generally have 3 options under Rule 3.02.  (1) First is that the court has this power to grant you an extension in time or abridgement which is prescribed under the Rules.  You can always bring a motion to the court and you have to bring a motion.  It’s a motion before the court and you present your case and explain to the judge or master why do you need extension and you justify it.  The court has the power to grant you that extension or abridge the time period.  (2) The 2nd part that you want to remember is that when it comes to the time periods within the Rules of Civil Procedure, if you have consent of all parties then you can file that consent.  For example, in a delay in filing some document if you attach a consent of all parties (that all parties are permitting you to file a specific document with delay), then the court office will accept it.  (3) The 3rd point you want to remember is that if your matter relates to an appeal, then any extension or abridgment in time that you need from the court, it has to be granted by an Appellate Court Judge.  A Superior Court Judge will not be able to grant you this extension.  In the cases of Appeal you’ll have to end up presenting your situation to an Appellate Court Judge and seek his or her approval.

In conclusion, what I want you to keep in mind is that you always want to carefully compute your timelines.  Obviously, you don’t want to wait till the last day.  If something is to be filed at least 5 days it is Ok to file that document 10 days in advance because if you wait till the last minute or the last day you may realize that when you arrive at the court office you may not have the complete documents or you may not have the documents in the form that the court office will accept.  Then you don’t have much time to fix that mistake and then go back and file your documents.  You ideally don’t want to wait till the last day but at the same time you want to make sure that you compute your time period correctly so that you don’t have any mistakes.  Remember that the court office cannot avoid the Rules.  If the Rules dictate that a certain time period needs to be followed, the court office will simply follow that.  They do not have any discretion in bending those Rules in your favor.  Once you’re computing the time period correctly and you’re following the Rules you avoid unnecessary hassle of having to bring a motion or asking other parties to consent for the delayed time period.  Depending upon the circumstances you may or may not get a court’s approval or you may or may not get consent from the parties.  This is a simple procedural thing about calculating the time and you want to make sure that you’re not off the time periods that is prescribed under the Rules of Civil Procedure.

Hopefully that helps you in understanding the computation of time within the Rules of Civil Procedure and we will see you in the next lecture shortly.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In our previous lecture we provided a brief overview of the discovery process in a civil action in Ontario.  Today’s lecture we will talk about a discovery plan.  This is one of the most important steps in the discovery process. We will explain to you what a discovery plan is about.  We begin again with our usual disclaimer that this is not legal advice. If you have any specific questions about your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

What is a discovery process?  We explained this in detail in our previous lecture.  Just as a recap discovery process is a process whereby you, as a party, can obtain evidence from the other side with respect to the relevant issues in the action.  All parties are entitled to obtain evidence from the other side prior to going to trial so that they are aware of what kind of case they have to meet.  If you haven’t watched the previous lecture I would suggest that you do, so that you have an overall understanding of the discovery process. 

Discovery plan: what is a discovery plan?  Discovery plan is an agreement between parties.  It’s an agreement between all parties in the action.  If there are more than 2 parties, then the agreement should be between all of the parties.  What is this agreement about?  It deals with the discovery process itself.  There are different facets of the discovery process.  You want to discuss all of those in your discovery plan.  The agreement must be in writing and the agreement must be completed within 60 days after “close of pleadings” (which is a specific term in the Rules of Civil Procedure—I believe it’s Rule 25.05—you can look it up).  Essentially, what is meant by close of pleadings, is it’s a time when the when the party that is supposed to serve and file their Reply, have done so.  If you are the plaintiff and you have received the defence and now you intend to file a Reply—once that reply is served and filed, then that’s the time that the pleadings are closed.  If you chose not to file a Reply, then the time during which you could have filed a reply that time is expired. If there are any defendants that did not file their defences and they need to be noted in default, that step has taken place.  It’s an important step.  You need to understand when the pleadings are closed.  When the pleadings are closed, you have 60 days during which time you have to complete a discovery plan and get all parties to reach an agreement. That 60 days time period can be changed—with the agreement of parties.  If parties mutually decide that a discovery plan will be completed in, let’s say, 90 days after the close of pleadings, then that’s fine.  The court will accept that.

What is contained in the discovery plan? 1st of all the discovery plan should contain the intended scope of documentary discovery: what kind of documents are the parties going to provide.  How do you determine what is the intended scope?  You have to consider 4 elements: 1.  Relevance: relevance is the most important aspect of documentary discovery because only documents that are relevant to the issues in the action are required to be produced.  Documents that are not relevant, need not be produced. I had given an example in the previous lecture. Where the example we took was that you are commencing a court action or you have commenced a court action against your contractor who was renovating your kitchen. You believe that the contractor did not do the job correctly and caused you damages. You are suing the contractor for those damages.  The relevant issues, in that specific case, could be whether you had a contract or not with the contractor. What was the content of that contract? What was it that was agreed upon? Is there any e-mail correspondence that you exchanged with contractor and contractor has possession of those emails?—those  are relevant documents that you are entitled to have. If you exchange any text messages, for example, with the contractor with respect to the particular issues in the action, then you may be entitled to have those text messages produced; there may be charts, diagrams, that may be in the possession of contractor that are relevant.  These may be relevant documents and ought to be produced. There may be photographs; there may be audio recordings, etc. Any document that is relevant to the issues of the action becomes relevant.  You determine in discussion with the other side or other sides what is the scope of documentary discovery? What is it that they will go back and look for with respect to relevant documents and then produce those? Also discuss the cost.  You have to keep in mind that the documentary discovery is not an infinite right.  It is the term that is used in the Rules of Civil Procedure and is called proportionality.  “Proportionality” is an important part and I’ll talk about it later on in the lecture.  The importance of documents that you’re asking the other side to produce and also the complexity of your case—are some of the things that you consider in deciding the scope of documentary discovery.  That scope of documentary discovery should be in the discovery plan. 

You also need to agree upon the dates on which the parties need to exchange their Affidavit of Documents. I believe I have a separate lecture on the Affidavit of Documents.  What they are—you can look them up—these are documents that contain a list of all the relevant documents that a party has in its possession and provides it to the other side. You also need to discuss the timing, cost and manner of production.  Affidavit of Documents only contains a list.  Now if the other side requires you to produce the documents that are part of the list, then when do you need to provide those documents?  Usually parties agree to exchange the productions at the same time when the Affidavit of Documents are exchanged.  But, that may not necessarily be the case. You may agree on a different date. Who is going to pay the cost of the documentary production?  Is each party going to bear its own cost? Are you going to pay the cost of documentary production that you are asking the other side to do? What is the manner of production? Do you require paper copies of everything—bound and tabbed? Or is the electronic production of documents sufficient?—which in most cases may be Ok. You put those documents on a usb (memory) stick in pdf form or another common format and then provide to the other sides.  All of these items need to be discussed in the discovery plan. 

Names of persons to be examined: Who are the individuals that you will be examining or who is the individual that you will be examining from the other side / sides? Similarly, who will the other side be examining from your side.  That needs to be agreed upon.  Then any other items that can move this discovery process expeditiously and cost effectively—all need to be put in the discovery plan.

Some of the additional considerations that you want to keep in mind with respect to discovery—if  there are any changes to your discovery plan that happen by agreement of parties, then you need to update the discovery plan and keep it updated.  You do not need to file it with the court. You need to have it available.  You bring it to court only if there are issues with respect to the discovery process and you’re bringing a motion seeking some order from the court and you need to rely on a discovery plan that was agreed upon—then you can you can go back and provide the discovery plan to the court. If you don’t agree to a discovery plan in the time period that is provided and if you’re seeking any remedies under Rules 30 to 35—which are remedies with respect to discovery process, then the court may refuse to grant you your remedy because you’re not agreed on a plan.  Now again, if you wanted to agree to a plan but the opposing side was being unreasonable, then that could be an issue that could be brought to the court and you can obtain an Order.  Generally speaking if you have not done your part in agreeing to a discovery plan, then you may not get the remedies that you want the court to give you under these Rules.  

Proportionality as I said is an important principle in the court actions in general and also with respect to the discovery process.  It is Rule 29.2.03. Let’s see if I can take you there. We’ll go over it quickly. Right here: when you ask a party to provide certain documents and let’s say they do not provide it and you bring a motion to the court and say that you want the court to give an Order to the other side to provide those documents, what is it that the court is going to consider? whether those documents are to be producer not? 1st point is the time: how long would it take for that party to get those documents and produce those documents and is that time frame and reasonable? 2. Expense: how much is it going to cost the other side to answer the production of those documents and is that cost—is that expense justified? Then 3. requiring the party or the person to answer the questions or produce the document would cause him or her undue prejudice.  If there’s any prejudice that may be caused to that party.  This could be all kinds of things e.g., commercial circumstances—maybe the production of those documents may cause some economic harm, that could be an argument.  That is something that can be brought up for the consideration of the court.  The court can rule accordingly. 4. Requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action and 5. the information on the document is readily available to the party requesting it from another source.  You are asking somebody to produce that document but you could obtain it yourself, then the court may say look we’re not going to give you this order because you can go ahead and get it yourself.  Then also the court considers overall volume of documents.  If your case is worth let’s say $50,000.00 and you believe that the relevant documents in this case are $20,000.00, then the court may say that the request is completely unreasonable because it is disproportionate to your claim and the complexity of your claim.  

What is it that you want to keep in mind?  You want to carefully review the rules to understand what are the rules about a discovery plan. You want to make sure that you agree to a discovery plan, you carefully draft that discovery plan to make sure that it covers all of the important issues that need to be agreed upon and then parties have an agreement.  With respect to agreement, just so you know, there isn’t really a specific form or format that you need to follow with respect to the discovery plan it really depends upon the circumstances of your case / the complexity of your case. It could be done in email correspondence—as long as there is an agreement between parties.  In a lot of my cases in employment law matters, I tend to agree to a discovery plan just by email correspondence. You could even do it by text messages—as long as there is a written document that confirms the agreement of parties with respect to the discovery process, then you are fine. It does not need to be signed by parties as long as there is an agreement.  You want to make sure that you want to carefully draft the discovery plan and keep in mind the proportionality.  It’s an important principle the court will carefully review—whether what you’re asking or any side is asking is proportional to the issues in the litigation complexity, the cost, the damages claimed—all of those factors are considered by the court.

There is a sample discovery plan provided by the Ontario Bar Association (OBA) which is the association representing lawyers in Ontario and it’s an excellent discovery plan. I’m just going to show it to you. You can go on their Web site download it if you want to draft a discovery plan and you can use that.  This is just a sample. It is not a legal form given by OBA.  Do not treat it as a legal document provided by them.  You notice that this is just like any of the court forms: you provide the title of the proceeding on the top; and it says discovery plan; and the first item talks about applicable procedural regime: whether it’s a commercial matter; simplified procedure—what kind of action is this? What are some of the legal issues for determination at trial? You talk about the causes of action—what is it that you’re claiming? Is it a breach of contract? Or is it a defamation case? What is the nature of the case? What kind of legal issues will be raised under each cause of action? And, what are the head of damages that are claimed.  You can briefly talk about it—you don’t need to do this.  This is a very broad and comprehensive form that gives you some guidance—you don’t need to necessarily follow all of these steps. Scope of documentary discovery: yes, you have to make sure that the scope of documentary discoveries is to be agreed upon.  You will see here the identification and priority of the documents and their authors.  Identify and prioritize key authors and custodians, record types of e-mails, electronic forms, other documents, relevant time-frames, location and other parameters within which search will be conducted for relevant records.  I’ll give you an example.  In the same case of a contractor you may say that you agreed to this project, you had preliminary discussions from September 2018 to October of 2018.  Then you entered into this agreement with the contractor.  Then the scope of your documentary discovery could be any e-mails that he exchanged with you from September 1st 2018 to present time or to December 31st 2018. That could define the scope, the time and the time frame.  These could be e-mails exchanged between you and the contractor or if the scope needs to be widened because there were other people that had communicated by e-mail from the contractor’s office. You want to encompass those e-mails as well. You expand the scope—you say all the e-mails correspondence between contractor’s office and myself from the time period of September 1^st to December 31^st 2018.  That’s why it’s important to consider what kind of documents are required; what kind of documents the other side may have; who could be the authors and custodians of those documents—so that you are able to get all relevant documents and don’t miss out on documents that may be relevant and you have not asked for their production. In this step, you agree to the deadline for affidavit of documents that we discussed, timing and put on the format of production of records.  How do you do it? You talk about oral discoveries—when will these be conducted, who will be attending and if there are other forms of discoveries, how do we go about doing that?  This is a form that you can use.  I have provided the link [here]. You can go to that link and download this form and use it based upon the circumstances of your own case. 

The fundamental idea of discovery plan is that it’s a written document that provides an agreement between parties on how the discovery process is going to take place—who is going to provide documents and when; who is going to be examined; who’s going to pay for cost—and this needs to be done as soon as possible within 60 days of the close of pleadings.  If not, then whatever time frame is agreed on between parties.  In the following lectures we will again proceed with other smaller distinct steps in the litigation process. For example, we’ll talk about the examination for discovery.  I’ll explain to you what kind of forms you require to serve on the other side for the examinations.  How do you know what is contained in those forms and whatnot?  We will take apart this discovery process piece-by-piece and provide you at least some overview, so you have a broader understanding of the discovery process and then you are able to effectively conduct your discoveries on the other side.

Thank you for watching. If you have any questions or comments, please share them with us and I look forward to seeing you in the next lecture.