Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

We have already posted a number of lectures regarding how to commence a court action in Ontario. How do you write your statement of claim or statement of defence; what is contained in those pleadings, etc.  Based on some of the inquiries that we have received lately it makes sense to take a step back and post a lecture on some of the things that you must consider even before you decide to come into court.  The choices that you make based on these considerations have important consequences.  It is essential that you have thought about these issues and then made the right choices so that if you have commenced a court action then it is appropriate and you get the remedies that you’re seeking.

We can commence 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.

The first thing you should consider is whether you have any alternative to commencing litigation. Litigation could be costly; litigation could take a long time and litigation is a public process. You may have at your disposal other dispute resolution processes available that may make sense in your circumstances.  It is a good idea to explore those processes and see whether those processes make sense rather than commencing a court action.  Or you may want to engage those processes first and if they don’t resolve your issue then you may commence a court action.

One example that comes to mind is, if you have a harassment complaint of any kind against a co-worker then your organization (your employer) has an obligation to conduct an investigation.  Once you file that complaint, there may be an impartial third party investigation or an internal investigation conducted in your case.  That may be able to resolve the very issue that you have raised.

Another example could be that you have a human rights discrimination complaint. Your employer may have certain processes available in which you can file that complaint and half that matter investigated and resolved.  These are some of the things to consider because it may make sense for you to engage those processes before you decide to come and commence a court action. 

The other way to resolve issues is mediation.  In certain circumstances you can have a mediation even before commencing a court action.  This mediation would not be part of the court process—not the mandatory mediation that you have in the court process.  Parties can agree to hire a third party—a neutral mediator and have that person assist them in crafting a resolution which may be satisfactory to both parties.  Obviously, you can always directly negotiate with the other party and see if your matter could be resolved. I believe that it is always worth doing that because a lot of times we think that the matter may be very antagonizing but, in fact, it may not. Once you start talking to the other party you may be able to understand their perspective better and they may be able to understand your perspective better and you may be able to resolve the matter through direct negotiation.

Finally, parties may agree by agreement (they may decide) that they would rather take the matter to arbitration rather than going to court.  In some circumstances that may make sense.  You may want the whole process to be confidential and arbitration may give you that opportunity.  Whereas a court process is a public road—you may want the matter to be resolved quickly and arbitration usually is a more expedient process than a court process—which takes longer.

The important thing for you to consider is that first of all are there any other ways in which you can resolve this issue and are they worth proceeding (worth engaging) with.

Second thing that you must consider is whether another adjudicating body has the jurisdiction on the dispute that you want to bring to the court.  This is an important consideration because sometimes depending upon the dispute, a Board or Tribunal may have exclusive jurisdiction on that issue of jurisdiction—meaning in this case that the only choice you have is to go to that Board/Tribunal. You cannot go to the court.  Your matter will not be heard by the court because the Board/Tribunal has exclusive jurisdiction.

One example is a landlord-tenant issue—whether it’s nonpayment of rent; whether you want to evict the tenant—all issues that relate to the subject of landlord and tenant relationship are the subject matter of the Landlord and Tenant Board which has the exclusive jurisdiction to deal with those matters.  If you want to bring a court action against a tenant to evict him then you will not get that remedy because you’re not in the right jurisdiction.

Similarly, Human Rights Tribunal has exclusive jurisdiction with dealing with human rights discrimination.  You cannot go to court and file a court action. There are situations in which you’re able to do that and I don’t want to get into that in much detail. An example that comes to mind is if you have a human rights discrimination case against the party and you have a wrongful dismissal case against the same party, then obviously the court does not or the legal system does not require you to have won the wrongful dismissal case in the court and the discrimination case in the tribunal—even though the underlying facts are pretty much the same.  In that case you can go to court and have the entire matter adjudicated there.  There are certain ways. But generally speaking when a board/tribunal has exclusive jurisdiction then, that’s the only place you can go to.

Workplace issues/workplace safety issues is another matter Workplace Safety and Insurance Board may have exclusive jurisdiction to deal with certain issues.  You need to make sure that regarding your particular issue—does any other body have any exclusive jurisdiction to deal with it? If it does, then your choice is to go to that body/to that tribunal. You cannot go to court.

Another important consideration is an arbitration clause. Your dispute may be subject to an arbitration clause.  In a lot of commercial contracts the parties may agree, in the contract, that if they have any dispute, rather than going to court they will go to arbitration.  If there is such an arbitration clause, then you are not allowed to go to court—your only choice is to go and have your matter arbitrated.  Some employment contracts have arbitration clauses as well.  If your employment contract contains an arbitration clause you will not be able to go to court—you have to go to arbitration.

If you have considered all of that and you believe that the best way to go is to a court in Ontario, then the next question is whether you should commence a court action or an application. The two are separate processes.

Rule 14.05(3) deals with what are some of the factors that you should consider if you want to commence an application. I have a separate lecture on this topic so I would encourage you to review that.  I will save some time in this lecture and will go to the next consideration, which is what type of proceeding you should commence?  You are still in court (you still want to go to court), you have made all those considerations then, (a) you decide whether your matter is $35000.00 or less.  If that’s the case then, you go to small claims court. Just so you know that small claims court had the jurisdiction of $25,000.00 which is now increased to $35000.00 as of January 1st 2020. If your matter is for $35000.00 or less you cannot go to the Superior Court.  Your only choice is to go to small claims court and commence a court action.

(b) The other type of proceeding is Simplified Procedure.  I have many, many lectures on simplified procedure. You need to consider whether you should commence a simplified procedure court action or an ordinary procedure.  Please review my lectures on simplified procedure which explains to you in what circumstances you should commence a simplified procedure or an ordinary procedure. 

Then you have to decide when you should commence a court action.  This question relates to the limitations period there is a limitation/a time period during which you can commence a court action.  Generally speaking it is 2 years but it could be different.  You cannot speculate (you cannot assume) that it is 2 years, you have to make sure that in the specific circumstances of your case what is your time period.

A common example is human rights discrimination.  If you are filing a discrimination complaint you have one year from the time that your action arose/your complaint arose—and within one year you have to file your application for human rights discrimination. There could be other time periods.  In some cases the limitation period could be as low as 3 months. An example is, if you have sustained damages due to non-repair of a highway or a bridge and you need to sue a municipality.  If you’re suing a Crown or municipality, you have to serve notice within 10 days after the claim arises.  If you sustain damages today, then you have 10 days to serve your notice to the crown that you’re going to sue them. If you don’t serve that notice in 10 days—you’re out of time and you may not be able to commence your court action in 3 months in this specific case.  It is very, very important to confirm what is your time limitations period and make sure that you commence your court action or application within that time period.

Where do you commence your court action? Which specific county? Which court house has the jurisdiction to deal with your specific matter? Small claims court has specific rules regarding which county you can commence your court action.  I have a separate lecture on that as well—so kindly check that out. With respect to superior court you should check Rule 13.1.  I’ll give you a brief overview of this Rule.  The Rule specifies that if a statute or Rule specifies a specific county for that dispute then that’s where you commence your court action but if there is no Rule or statute that asks you to commence a court action in a specific county then you can go to any county. You can commence your court action in Toronto; you can commence in Sudbury—you can choose whichever county you think is appropriate.

That said, the court may be able to transfer your case to another county on a motion by the other party if the court believes or if the other party is able to demonstrate that a fair hearing cannot be held in that specific county where you commenced the court action or in the interest of justice.  Please check Rule 13.1. It’s a detailed Rule.  There are number of factors that the court may consider and you should know about those factors before you choose which county you wish to commence your court action.

What is the lesson from here that these considerations are important; there are consequences that may follow due to wrong choices. One obvious consequence is cost consequence. For example, you should have been in small claims court because your matter was less than $35,000.00. You commenced a court action in superior court. The other party brought a motion. Now your case will be sent or transferred to small claims court and you may have to pay a cost to the other side for wasting their time and money. That’s one example of cost consequences.  There could be more fatal consequences.  In some cases you may not be able to get the relief at all that you’re seeking.

An example that I can give you is that you had a human rights discrimination case you commenced a court action rather than going to the tribunal. The other side brought a motion. They got your case thrown out because the court did not have the jurisdiction. Tribunal had the exclusive jurisdiction. By the time your case is thrown out, let’s say you’re out of the limitation period—it is more than a year—that was the time period during which you should have commenced your application at the Tribunal. You missed that deadline. When you go to the Tribunal and say, “hey I was in the next window, can you please let me in?”  They may not allow you to do that.  You may have a meritorious case but because of the wrong choice that you made your limitation period may have run out and you may not be able to even get into the other jurisdiction that was the appropriate jurisdiction.

These are important considerations. Please make sure that you think about these things before you commence a court action and hopefully it will help you decide what is the right strategy for you—whether to commence a court action or not.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In today’s lecture we will discuss the exchange of affidavit of documents—which is a required step in any civil action in Ontario.  We will discuss this in the context of Rule 76, which is a specific Rule that simplifies certain procedures in a civil proceeding in Ontario.

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.

Rule 76 is also called Simplified Procedure. It is in contrast to ordinary procedure that covers all other kinds of actions under the Rules of Civil Procedure. We have previously done two videos on Rule 76.  If you haven’t watched those, I would suggest that you do because those videos deal with some of the basic concepts of Rule 76.  Generally speaking what I can restate today is that Rule 76 usually deals with matters of money that are $100,000.00 or less.  If you are suing someone for $100,000.00, then Rule 76 is a better option for you rather than the ordinary procedure. You can also sue someone for more than $100,000.00 under the Rule 76 but there are certain ways to do that—and for that I would suggest that you review the other two lectures.

What you want to remember regarding Rule 76 is that the process is faster; it is simpler and it is cost efficient. Whenever possible, if you are the plaintiff, if you are commencing a court action, and if you can bring it under Rule 76, then I would recommend that you do so.

What are the basic steps? They are similar to any other court action. You serve and file your pleadings; then you exchange affidavit of documents; you conduct examinations for discovery; if the mediation applies in your area (if it’s mandatory), then you should conduct a mandatory mediation; you attend a pretrial conference and then you take your matter to trial if it has not settled by then.

Today we will talk about affidavit of documents which is Step 2 in this process.  Affidavit of documents is covered under Rule 76.03.  What does an affidavit of document contain? (a) It’s a sworn affidavit.  (b) It contains all documents relevant to any issues in the action.  I have underlined the important words in this. (i) All documents—means you cannot be selective about what documents you will produce. If documents are relevant (whether they are favorable to your case or unfavorable) you’re required to produce those documents. That indicates all documents.  The term document contains all kinds of things it’s not just paper document; it could be e-mails; faxes; text messages; videos; audio recordings; any tangible or even intangible in electronic form document will be considered a document.  A document has a very, very broad meaning—any piece of evidence that is other than oral is generally a document and you ought to produce it.

Now coming to the word (c) relevant.  A lot of ink has been spilled in explaining what is relevant and what is not relevant in court cases. I will not get into the details here.  We may do another lecture but what you want to understand is that the word relevant is a recent word in the Rules of Civil Procedure.  Few years ago, in the previous Rules, the word that was used was related documents.  There is a difference between related documents and relevant documents. Related documents were considered to be more broad—anything that was related—it may not be directly relevant to the issues.  That was the language.  It encompassed a lot more documents than the document that could be relevant to the specific issues.  The Rules were amended and now the Rule says relevant to any issue.  These are the documents that are relevant to the issues in an action.

What would be relevant? If a document proves or disprove any of the issues in your action then that document is relevant.  That is the broad definition you want to keep in mind.  As I said, there are many, many cases in which parties have fought about what is a relevant document and what is not a relevant document. 

The third part that you want to remember is: relevant to (d) any issues in the action. Let me explain that by way of an example. If A has borrowed money from B and has not returned it to B. B has sued A  for a refund of that money.  Let’s say in that process (in that court action) in the Statement of Claim, B says that there was an e-mail sent by A in which A promised that he will pay the money back by so and so date. Let’s say that is a factual statement that has been made in the Statement of Claim. The existence of that e-mail is a factual issue and the content of that email is also factual.  If you have that email, it does show or does prove whether the email was sent or not or was exchanged. And secondly, whether the email stated exactly what you are claiming.  In that situation, that particular email is a relevant document and you cannot be selective about choosing not to disclose that email—you are required to disclose that email—even if that email has certain contents that are not favorable to the balance of your claims but that email is relevant. All documents relevant to any issue in this action need to be produced.  That is the general theme that you want to remember. We will try to do a separate video on this to explain this to you in more detail.

What forms to use to prepare this affidavit of documents? If you are an individual party, then you use form 30A.  If you are a corporation or partnership then you use form 30B. There are 4 schedules in the affidavit of documents.  Let me quickly show you the form and see if we can explain this to you through that form. This is the form. You can download it. It’s available online; just type in Rules of Civil Procedure forms and you will find this 30A is there. You fill in the information about your name, where you live.  Paragraph 1 is important. This is what you state in your affidavit “I have conducted a diligent search of my records and have made appropriate enquiries of others to inform myself in order to make this affidavit”.  You are basically stating in this affidavit that you have done everything you could to find all the relevant documents—either in your own possession or if you had to talk to someone else about it, you did so and that is why this affidavit discloses “to the full extent of my knowledge, information and belief all documents relevant to any matters in issue in this action that are have been in my possession control or power”.  

The documents that you are disclosing are the documents that you have in your possession and the documents that you have lost possession of or you had possession once and you no longer have those documents—those are the things that you explain in Schedules A, B and C.

Schedule A basically lists all the documents that are in your possession and you do not object to producing those.

Schedule B: are the documents that you do have in your possession; they’re relevant to any issues in this action but you’re objecting to producing those because they are privileged—maybe you spoke to a lawyer; maybe you discussed your legal options with a lawyer and in that you discussed some of the aspects of your case—those are the documents that you don’t want to disclose. You basically state what those documents are—but then you say I am not disclosing these because these are “privileged” because of “solicitor client relationship”.  

Schedule C includes those documents that you had in your possession but you no longer have those documents. If you have lost those documents, then you state that. If those documents are held by someone else then you provide that information. You basically explain why you do not have those documents anymore in your possession.

Under Rule 76 you have to provide a Schedule D, which states the names and addresses of any person who might reasonably have knowledge of your case or the transactions. It does not have to be just the witnesses who are going to support your case but any person who is reasonably expected to have knowledge of the issues in your case. You have to put the name of that person and provide their address.

 Lawyer’s certificate: If you are a self-represented party, you don’t need to provide that. You attach your schedules to it and you swear and sign this affidavit in front of a Commissioner for Oath Taking or a notary public or a lawyer.

Four Schedules A, B and C: You make sure that they are in your affidavit of documents.

What is the timeline for the service of affidavit of documents? It is within 10 days after the “close of pleadings”.  If you have reviewed my previous lectures, “close of pleadings” means that you have either served the reply in your action or received the reply in your action or the time for the delivery of reply has expired.  That is the date when the pleadings are closed.  You have 10 days from that time line to serve your affidavit of documents. As a practical matter I have never seen any counsel follow this timeline (10 days) in my entire 11 years of practice—I have never seen that happen but that is not to say that you cannot ask for it—especially if you are the plaintiff and you need to move your action fast and forward you should be ready to serve it within 10 days and then demand from the defendant (the other party) that they should serve their documents within the time lines in the Rules of Civil Procedure.

What is it that you need to serve? You need to serve the affidavit of documents and copies of documents in Schedule A. Why I’m emphasizing this? Because in the ordinary procedure you only serve the affidavit of documents and then the copies of documents you are not required to add this at the same time.  What happens with the copies of documents is that if the other side demands copies of the documents, then there is a cost for the production of those documents and the other side will pay you for that cost and then you provide copies. In this case under Rule 76, you have to do this at your own expense. The Rules are very specific—at your party’s own expense, you have to serve the affidavit of document and copies of document in your Schedule A.

What you want to carry from this lecture is that exchanging affidavit of documents is a crucial step because it contains all the relevant documentary evidence on your side and on the other side.  It’s a very important step that enables both parties to assess the merits of each other’s case because now you’re looking at the documentary evidence and matching their claims to their position—whether their position is actually proven by the documents that they have provided or you have provided. It also enables parties to conduct effective examinations for discovery because all the relevant documents have been produced. Now you can examine the other side to elaborate on their position through those documents or explain the things where there are gaps in their position that you can find through your examination for discovery.

We will try to cover affidavit of documents in more detail.  We will pick up each section, maybe, Schedule A and do a separate lecture.  Then, similarly, on Schedules B, C and D. But for now I believe this gives you a good sense of how you prepare your affidavit of documents and then what is the timeline to exchange your affidavit of documents.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In our previous lecture we had explained what is an affidavit of documents and when does it need to be prepared and produced.  In this lecture we take a step further and explain how you determine which documents are relevant and ought to be disclosed in your affidavit of documents.

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 paralegal or the Law Society of Ontario for a referral.

Rules 30.03 and 76.03(1) of the Rules of Civil Procedure discuss affidavit of documents and explain what should be contained in that affidavit of documents. We have explained that in our previous lecture.  If you haven’t watched it please do so before reviewing this lecture. Broadly speaking the Rules require that parties should (a) disclose all documents in the parties knowledge, information and belief. These documents should be (b) relevant to any matters in issue in the action.  They (c) are or have been in the party’s possession control or power or have been in the past in party’s possession control or power.  All of those documents ought to be disclosed in the affidavit of documents.  Once again, please review our other lecture.

In today’s lecture we’ll talk about how you determine which document is relevant? And, which document is not relevant?  This could be described as Relevance Test. There are a number of definitions that have been set out in various court cases.  We have picked a few just to give you a flavor of how the courts have explained relevance in different contexts.

    1. First example: “… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.”

That’s one example. I’ll let you think about it and come back to it and read it again.

     2. Another example: “For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter”.

    3. One more definition: “… requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”. If it does, then “Fact A” is relevant to “Fact B”. As long as “Fact B” is in itself a material fact in issue or is relevant to a material fact in issue in the litigation, the “Fact A” is relevant and prima facie admissible.”

   4. One more example and I’ll have one more in the end: “Any document which directly or indirectly may enable a party to advance his own case or destroy that of his adversary, or which may fairly lead to a train of enquiry to disclose evidence which may have either of those consequences, must be disclosed”.

    5. And finally: “Relevance is based on the parties’ pleadings.  To determine if the documents sought are relevant, I must decide if the documents sought tend to prove or disprove a proposition or fact advanced in the parties’ pleadings.”

I have given you all these examples so that you can repeatedly read them.  These are quotes from actual court cases.  You can understand that courts have defined relevance in so many different ways once you complete the reading, you may come to the understanding that all of these definitions are more or less the same. But I can tell you that they are not. 

The courts have defined relevance differently and that is why it is important for you to understand how the relevance test is actually applied.  All of the definitions that are given—not all of them are uniform—not all of them are considered equal.  To properly understand relevance—I believe one way to do so is to understand the history of relevance test.  In the past in Ontario, the test for relevance was called “Semblance of Relevance”.  As of 2010, the Rules were amended.  Now the test is simply “Relevance”.  The difference between the two is very simple.  In semblance of relevance the documents that were considered relevant were viewed broadly. If there was any chance (any semblance) that the document could be relevant to the issues in that court action, then they will be considered relevant. 

In 2010 (the court) the Rules have narrowed the definition of relevance of the documents—they must be relevant to the issues or to one of the issues or any of the issues in the litigation.  If they’re not relevant, then it’s not a matter of they could be or there is a semblance of relevance.  The definition is narrow and there were a few reasons for changing these Rules.  Some of the reasons were that the courts did not want parties to conduct fishing expeditions (go looking for evidence that may not even be relevant)—trying to find out a case / trying to find out evidence to support their position or destroy the other party’s position—because it took longer; it cost more; and it may have been disproportionate to the case that was before the court. That was one reason.

The other reason was the courts wanted to deal with issues efficiently.  The narrower the definition is, only the relevant documents will be produced and the documents that are irrelevant will not waste court’s time unnecessarily, parties time, money and effort in wading through all those documents that could not be relevant to the issues.  In any event the definition was changed. What you want to take away from today’s lecture is that the definition now is narrower—either the document is relevant or it’s not. The semblance of relevance test is no longer there.

On that basis, I want to go back.  As I said when you review those definitions that I gave you there’s one definition, this one that I read (#4 above):  

“Any document which directly or indirectly may enable a party to advance his own case or destroy that of his adversary, or which may fairly lead to a train of enquiry to disclose evidence which may have either of those consequences, must be disclosed”.

Now this is I believe—when I read all these definitions, I did not find this definition to be particularly different than all of the other definitions that I read.  Apparently, the courts have stated that this definition is different.  It is too broad. It was from one of the British Columbia court cases which was quoted in one of the Ontario cases. One master relied on this definition and decided on certain relevance of certain documents.  When the case was appealed, the court overturned the Master’s decision and basically said that this particular definition is related to ‘semblance of relevance test’ not the ‘relevance test’ which is presently in force in Ontario.

The next definition that I picked up which, I honestly believe, is not much different than the one that I just read is this one. This is from a 2019 case (#5 above)—which basically says that “the document tends to prove or disprove a proposition or fact advanced in the party’s pleadings then that document is relevant”.  This is probably the simplest way to look at it.  If you have stated a fact or there is a fact in your pleadings or the other parties’ pleadings, then you look at the document and then you determine whether that document proves any of the things that are stated in that pleading.  If it is not, then, if it advances that position confirms, or denies it—then it is relevant. If it doesn’t do anything to that particular statement or position then it is not considered relevant.

How do you figure out all of this?  As I said the definitions are not uniform.  We talked about the history.  Then determining relevance is really a practical matter. If you have done this for a few years like lawyers do, then it is relatively easier for you to determine which document is relevant and which is not.  There are a number of fights about these issues that happen in courts all the time and that is simply because 2 parties using their common sense, using their experience may not agree on what document is relevant and what is not.  It’s really a practical matter.  The court uses experience and judgment to determine which document is indeed relevant.

Let’s give you an example so that you make be able to get some sense of which document could be relevant.  Let’s take a fact. We assume this fact is part of a party’s pleadings. The fact says: “The defendant delivered its invoice by e-mail to the plaintiff on January 3rd 2019”. This is a fact that has been stated. If the other party challenges it / disputes this fact, then this fact needs to be proven. If this fact needs to be proven, then that particular e-mail that we’re talking about here, is a relevant document. It ought to be disclosed because this e-mail is the one which attaches an invoice and it was sent on January 3rd by the defendant to the plaintiff.  The e-mail in a very simple commonsensical way is a relevant document that ought to be produced.  Now let’s say the defendant had sent another email to the plaintiff (on the same day) on a different matter not enclosing an invoice but on something else.  Is that e-mail relevant? No. It’s not relevant as far as this particular fact is concerned because the existence of the e-mail / the content of that e-mail as long as it does not contain that invoice, does not on its face provide / support this fact in any way.  That e-mail (that second e-mail) could be relevant on some other issue.

For example, that e-mail could state (let’s say that the parties in this case—the plaintiff advances a position that the plaintiffs and the defendant had never communicated by e-mail). Let’s say that is one position that has been advanced by the plaintiff.  In that instance the second e-mail becomes relevant because that is an e-mail that actually challenges / disputes that position offered by plaintiffs because it proves that there was an e-mail that was sent by the defendant to the plaintiff.

You essentially look at the fact that has been pleaded by you or by the other side and look at the evidence and then figure out whether the issues in that pleading are advanced, challenged or in any way connected to that particular document.  If that document proves or disproves that particular fact or position then that document is relevant.

What to take away from today’s lecture? (a) 1st of all when you’re drafting pleadings you have to be extremely careful. You have to very accurately state your facts because whatever you state / whatever position you advance, remember that you will have to prove that by evidence either documentary evidence, viva voce evidence—but you have to prove it.  You want to make sure that your pleadings are accurate in terms of the evidence that you’re going to later provide.

(b) You also want to carefully review the other party’s pleadings because when you review your own documents or other sides documents you may be able to find a discrepancy in their pleadings and their evidence.  You will be able to challenge their position, the facts or position by relying on that particular piece of evidence. 

(c) Also do not to forget that when you have this obligation to disclose all these documents, you want to carefully assess all the documents to make sure that they are relevant and you are disclosing all those documents. (d) A related and important rule that you want to keep in mind is Rule 30.05 which says that “disclosure or production of a document shall not be taken as an admission of its relevance or admissibility”.  What this Rule does is that if you want to err on the side of caution and produce documents that you believe may be relevant, i.e., you’re not sure but you disclose them any way—that does not mean you are taking the position or you are admitting that the document is indeed relevant.  This particular Rule saves you from that position.  The other side will not then hold you accountable and say because you disclosed this document you have confirmed the admissibility of that document as a relevant document or you want this document to be admitted as evidence—that is not the case.  There is no deemed relevance or deemed admission just because a document has been disclosed.  That means that if you err and include documents that you were not sure about (they were relevant or not), that will be fine at trial.  You can state the position that you believed the documents were not relevant.

This is a complicated area as I said.  Two lawyers cannot agree at times on what documents are relevant / what is not, but at least it gives you a line of thinking in terms of how you figure out when you’re looking through your documents or the other sides’ documents to make a determination whether the documents are relevant or not.

Hopefully this was helpful.  We will bring more lectures on these topics as we go along.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

In today’s lecture we will talk about product liability in Canada. We will cover some of the basic concepts in this area of law. We are all consumers who use products on a daily basis and sometimes those products cause harm or injury to us or someone else.  So this area of law is important in the sense that it talks about liability arising from those defective products.

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 paralegal or the Law Society of Ontario for a referral.

Product liability deals with an injury caused by a product.  Who may be liable for that injury and the damages arising from that defective product?  A common example that we see in the news often is a manufacturer’s liability for cars. If some of the components or parts of the car are defective and they may cause injury to the passengers or other people, then a liability may arise against the car manufacturer.  We see these often play out in our news.  Another common example could be pharmaceutical companies liability for creating and selling drugs that may be harmful to the people who have consumed those drugs. 

What is the underlying theory of liability? There are 3 areas (3 parts) from which this liability may arise.

1. One is called Breach of a contractual warranty;
2.  Second is a breach of a statutory warranty; and
3. Third kind of liability comes from tort and this will be considered tort based liability.

1. Breach of contractual warranty as you can imagine arises from the sale contract In our day-to-day purchases, when we buy a product, we get a receipt. It has in the fine print what kind of warranty is attached to that product—whether it’s a computer; whether it is a washing machine; or any other item we purchase—there may be a manufacturer’s warranty that may be attached to it. If that particular warranty is breached then the liability may arise on the basis of a breach of contractual warranty.

 Second thing that is part of the contractual warranty is collateral contracts. These are not part of the main sales contract but these are written documents—it could be e-mails or text messages between the purchaser and the seller which may contain some warranties—which may be considered part of the contractual warranty and so they may arise from collateral contracts. 

There may be some oral discussions between the seller and the purchaser.  In those discussions the seller may have presented some warranties to the purchaser and those may be, in appropriate circumstances, considered contractual warranties.  

Another group of contractual warranties are implied common law warranties.  These are warranties that are basically “read into” the contract; they are not in writing in the contract but they’re implied—so they are read into the contract by the judges when they are reviewing the contract and deciding on product liability. Generally there are 2 kinds of implied common law warranties. One, that the court will read into the contract that the product will be reasonably safe for its use.  Second, product will be reasonably fit for the purposes for which it is required.  Those are—you can say commonsense contractual obligations that the court will find in a sales contract and these will be considered implied contractual warranties.  Even though these are not written in the contract they will be read into the contract.

2. By breach of a statutory warranty: A lot of implied contractual warranties have now been codified into statutes. Most Canadian provinces have legislation that deal in some way with product liability and they have codified the implied common law warranties into the statutes. Any breach of those statutory warranties may also lead to liability. Examples of this legislation are Sale of Goods legislation that are in various provinces; Consumer Protection legislation that are also active in various provinces. These legislations may have specific warranties that attach to products that are covered in those legislations.

3. Third area where liability commonly arises is tort based claim. If you know anything about torts from our previous lectures.  One area of tort is intentional tort.  This area of law is uncommon.  An example of that could be fraudulent misrepresentation by the seller; by the manufacturer or by the distributor about a product—that may lead to a fraud—that may lead to liability from an intentional tort.  The most common tort that is used is the tort of negligence.  To prove negligence the plaintiff must show (a) that the defendant owed “a duty of care” to the plaintiff with respect to the product. This duty of care is found almost in every single case where there is a manufacturer of a product and a consumer of a product.  The second element that the plaintiff has to show is (b) that the product was defective or unreasonably dangerous—that the defendant or the manufacturer or the party that is being sued failed to meet the applicable standard of care and the defect caused or contributed to the plaintiff’s damages.  This is called the causation  In other words, you could say that but for that defect the plaintiff would not have suffered those damages. It’s also called the “but for” test. The causation must be proved and the plaintiff’s damages were reasonably foreseeable.

These are the elements to prove negligence in every case in product liability that the plaintiff must show.

Who are the parties that could be held liable for product liability? The law has actually made it quite broad for all kinds of parties to be held liable for a defective product. Obviously the manufacturers; it could also be importers; wholesalers; distributors; retailers; repairers; installers inspectors; certifiers and product owners.  All of these parties could be held liable for a defective product and an injury caused by that defect.

What kind of damages could be awarded?  All kinds of damages could be awarded. The most common and the easiest example could be cost of repair. If your product is defective and you had to spend money to repair that product you would be entitled to recover the cost of repair. If the product cannot be repaired, you may be entitled to the loss of value of the product.

You may also be entitled to the loss arising from the breach of warranty. An example of this could be, let’s say, you have a truck that you use on a commercial basis to earn your livelihood.  There was some problem with the truck’s engine—which was a breach of the warranty of manufacturer.  Because of that breach you are not able to earn your living for the next 5 days because it took that long to repair that truck. 

Then you may be entitled to claim damages for the loss of income for those 5 days because this loss arose from that the defect of that product.  Also physical damages that could be caused to other property can be compensated. Personal damages; personal injury; loss of limb or other personal damages which are considered pecuniary losses can be claimed. Also non-pecuniary losses such as pain and suffering, loss of enjoyment of life, etc.,- these  can also be claimed. 

In certain circumstances the court may award punitive damages against the defendant for a defective product.

The take away from this lecture is that product liability is an important area of law it affects almost every one of us and it is important to have a basic knowledge of this area of law so we can protect our rights appropriately.

Thank-you.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

We have so far provided 3 lectures on the subject of Appeals. This is our 4^th lecture on this topic. In today’s lecture we will cover some of the basic steps in order to “perfect an appeal” in a civil court in Ontario.

We begin with our usual disclaimer that this lecture is not legal advice. It is only for educational purposes. If you require answers to specific questions that you may have you should contact a lawyer or a paralegal or if you don’t know one, then you should contact the Law Society of Ontario for a referral.

In our previous lectures we have talked about what is an appeal. We have explained the difference between an appeal and a judicial review. We have also explained the difference between an appeal that you can commence by “way of a right” and the appeals that you have to seek the court’s prior permission to commence your appeal. We have explained some of the differences between an interlocutory and a final order which is relevant to where you appeal your case. We have talked about the determination of the appropriate appellate court in your case.  In the previous lecture we have talked about how you commence your appeal.  

Fundamentally we have explained that there are 2 steps: one is the commencement of appeal and 2nd step is the perfection of appeal.  Only after you have perfected an appeal will you be allowed to have your appeal heard and if you have not perfected your appeal then your appeal will not be heard.  It’s an important step. In this step you need to remember about the time lines as usual. (a) If you are not relying on any transcripts of evidence for your appeal, then you have 30 days from the time that you have served and filed your Notice of Appeal to perfect your appeal.  (b) If transcripts are required in your appeal, then once you receive the notice that the evidence has been transcribed, from that time you have 60 days to perfect your appeal.

There are specific documents that you have to serve and file in order to perfect your appeal. And we will discuss each document one by one. You would need to serve and file an appeal book and compendium, an exhibit book, transcripts of evidence, factum and certificate of perfection.  An appeal book and compendium is essentially a document that contains all of the pleadings relevant to your action—Statement of Claim, Statement of Defence, Reply, the Order or the Decision that you are appealing from (a copy of that order or decision), any other procedural documents, any other orders that may have been issued with respect of that case—you need to provide copies of that. Obviously, you need to provide a copy of your Notice of Appeal. If there is a cross appeal, you need to add a copy of that. If there are any supplementary notices of appeal, then those are all included in the appeal book and compendium. Also included in the appeal book and compendium are transcripts of evidence—the excerpts of the transcripts of evidence not the entire transcript, some of the affidavits that you may be referencing in your factum—all of those parts of evidence will go in the appeal book and compendium.

We’re not discussing today all of the contents of an appeal book and compendium.  Those we will cover in a separate lecture but you can review Rule 61.10 to understand what goes in an appeal book and compendium. Once you have the appeal book and compendium ready, you serve it on all relevant parties, then you file 3 copies of the appeal book and compendium with the court, along with the proof of service (along with your affidavit of service) confirming that you have served the appeal book and compendium on all the relevant parties.  If your appeal is being heard by a panel of 5 judges, then you will need to file 5 copies with the court along with the proof of service—otherwise normally it is 3 copies.

2nd document that you have to serve in file is the exhibit book.  As the name implies, exhibit book contains all of the evidence.  It will contain all of the affidavits (if there are affidavit evidence that you are relying on for your appeal) and it will contain all of the transcripts of evidence that you are relying on—the evidence that parties have agreed not to omit for the purposes of the appeal.  All of those will go into an exhibit book.  The details of what is contained in an exhibit book can be found in Rule 61.10.1.  Once you have the exhibit book ready, you serve on all relevant parties; then you file one copy with the court along with the proof of service.  Notice that you don’t need to file 3 or 5 copies only one copy of the exhibit book is sufficient. There are circumstances in which you may not need to prepare an exhibit book and obviously need not file it with the court. One example that comes to my mind is that if your appeal is based on affidavit evidence entirely and that’s all you’re relying on then you can include the affidavit evidence in your appeal book and compendium.  In that situation you don’t need to prepare a separate exhibit book.  You must make sure that you understand in what circumstances you don’t need to prepare and file an exhibit book and make sure that you comply with the Rules in that regard.

Transcripts of evidence: Once you have the transcripts of evidence ready (you have received the transcribed evidence) then you have to serve typed and printed transcripts of evidence on all relevant parties. You also have to serve an electronic version of the transcripts of evidence on all relevant parties. You file one copy of typed and printed transcripts of evidence with the proof of service with the court. You also file the electronic version of the transcripts of evidence with the court.

Factum is the most important document in your appeal.  If you know anything about how the decision on appeals is made, you would know that your skills in oral advocacy have a limited role with respect to your success in your appeal.  Appeals are fundamentally won and lost in the libraries, which is where you sit down and prepare your factum. A factum is a document that contains basically your argument—why should your appeal succeed. It contains the relevant law; it contains the relevant facts and it contains your argument on how those facts are and how the laws are applied to those facts so that you are successful in your appeal.  If your factum is weak, regardless of how good your oral advocacy skills may be, you may not be able to rescue yourself from a bad factum.  A great factum is essential for success on an appeal. What goes in a factum and how it is prepared that is contained in Rule 61.11.  You prepare your factum, you serve a typed or a printed copy of factum on all relevant parties. Then you file 3 copies of your typed and printed factum (or 5 copies if your appeal is being heard by a panel of 5 judges) along with the proof of service. You also need to file an electronic version of the factum with the court.

The last item that you need to prepare, serve and file is a certificate of perfection.  A certification of perfection is essentially a certificate in which you state to the court that all the documents that were needed to be filed for your appeal (to be heard) you have filed those documents with the court and then you provide the contact information of all of the other relevant parties—their names; phone numbers; addresses; names of lawyers; their phone numbers and addresses.  You provide that in the certificate of perfection. You serve the certificate of perfection on all relevant parties and then you file it with proof of service.

Once you have submitted all of these documents with the court and paid the fee for the perfection of your appeal, then your appeal is perfected. You will be receiving a date from the court as regards to when your appeal will be heard.

Again we emphasize that you should carefully review each step that you need to take with respect to perfecting your appeal. Make sure you follow the timelines. With respect to timelines, I do have a comment regarding the perfection of the appeal.  Generally speaking, the timeline for perfecting the appeal is not followed stringently by the court.  If you, for some reason, have delayed perfecting the appeal by a few days it may not be a big deal because the Registrar will still accept your documents for perfection—even after the deadline—as long as your appeal is not dismissed by the Registrar.  But for the Registrar to dismiss your appeal the Registrar will send you a notice in writing and give you a certain time to perfect the appeal. Generally speaking the timeline for perfecting is not that stringent—that is not to say that you should take it lightly.  You should always try to comply with the timelines.  This is just for your knowledge that if you for some reason, are unable to perfect it in the time period that is outlined earlier, you may have some opportunity to still perfect your appeal.  You can also have the consent of all parties regarding some delay with perfecting an appeal.  Once you have that consent that will also allow you to perfect your appeal a bit later.  You also want to make sure that you review the Rules of Civil Procedure, the Practice Directions and the relevant statutes so that your appeal is perfected properly.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome everyone!

Today I will talk about some of the basic steps in commencing your appeal in a civil court 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 the Law Society of Ontario for a referral.

We have presented two lectures on the appeal topic.  We have so far covered some of the basic things for example: what is an appeal? what is the difference between an appeal and a judicial review? The difference between an appeal by “way of right” and where you require the “leave of the court” (the permission of the court) before you can appeal a decision.  What is the difference between an interlocutory and a final order?  We have talked about how you determine which appellate court has the jurisdiction to review your appeal.  If you have not checked out these 2 lectures, I’ll encourage you to review those lectures before you review the steps about the commencement of appeal.

In this lecture we are assuming that you are appealing “by way of right”—in other words you do not require the permission of the court (the leave of the court) to appeal the decision / the order that you are appealing from.  You have the right and what steps do you need to take? There are fundamentally 2 steps. One step we can say is the commencement of appeal and second step is perfection of appeal.  The word “perfection” here is not used in it’s ordinary English meaning. It has specific meaning under the Rules of Civil Procedure.  When we get to that step, I will explain to you what does “perfecting an appeal” mean.  

In this lecture we will only talk about the commencement of appeal.  Step number one not the perfection of appeal, which we will handle in another lecture. For commencing an appeal you have to do 3 things. First of all you have to serve and file a notice of appeal; you have to serve and file a certificate respecting evidence (I will explain what that means); you’ll have to order transcripts of oral evidence and file proof with the  court that you have ordered those transcripts.

Notice of Appeal: For the Notice of Appeal you can complete on either Form 61A or 61A.1. These are 2 forms that are available online. You simply need to google and type in Rules of Civil Procedure forms and you will find all of these forms are available for free.  You can download them. Let me show you what our Notice of Appeal form for the Ontario Court of Appeal looks like.  This is the form Notice of Appeal to the Court of Appeal in Ontario.  I will explain how you fill out this form in a separate lecture.  Let me see if I can find the form for the Divisional Court. This is form 61A.1 for the Divisional Court.  You prepare your Notice of Appeal, then you serve it on all the relevant parties—in this case all of the respondents who have any of their rights being affected by your appeal. They all need to be served.  If there is a defendant that has been noted in default, then that defendant does not need to be served.  You want to make sure that you have served the notice of appeal on all relevant parties.

This needs to be done within 30 days of the making of the order that you are appealing—it is the date that the order was made not when you received it.  If the court had made an order let’s say on November 30^th but you received it in the mail on December 4^th or 5^th—it is the time when the order was made.  Within 30 days of that (November 30^th) you have to serve your Notice of Appeal on all relevant parties.  You prepare that and you serve it on all of them.  The other exception to this timeline is that if there is a specific statute or a Rule that you are dealing with that applies to your specific appeal, then whatever timeline is prescribed in that Rule or in that statute may determine when you need to serve the notice of appeal.  Once you have served the notice of appeal then you need to file it within 10 days of the service.  That is 30 days for the service and then within 10 days of the service you have to file a proof of service and the notice of appeal with the court—so that it is confirmed that you have served the Notice of Appeal.

2nd step: You have to serve what is called the Certificate Respecting Evidence and file proof of that service. What is a Certificate of Evidence? This is a certificate that basically sets out what portions of evidence that you will be relying on—that you believe are required for the court to determine the appeal.  There is again a Form 61C that he you can use to prepare that certificate. This is what a Certificate Respecting Evidence looks like.  I will explain how you fill out that certificate in another lecture.  Here is a filled out certificate. Now you serve it on all relevant parties—these are the same parties that you have served your Notice of Appeal on.  You have to do so within 30 days of the making of the order that you’re appealing from.  The same timeline as that for the service of the Notice of Appeal and then you have to file it with the court along with a notice of appeal and you have to provide the proof of service i.e., an affidavit that you have actually served the Certificate Respecting Evidence on all the relevant parties.

Now there is an alternative to the Certificate Respecting Evidence which is called Agreement Respecting Evidence. Either, you can serve and file a Certificate Respecting Evidence or you can consult with the other parties (you can talk to them) and all of you can make an agreement as to what evidence will be presented to the appellate court.  This step is instead of the certificate Respecting Evidence—if you agree with all the parties what evidence will be presented to the appellate court, then you don’t need to file a Certificate Respecting Evidence. You have to make that agreement within 30 days of the service of notice of appeal—whenever you serve the Notice to Appeal, within 30 days if you can reach an agreement with the parties about the evidence then that’s that.

3rd step: is about transcripts. First of all you have to order transcripts of oral evidence. At trial there may have been oral evidence that was presented by parties—by their witnesses and that evidence is recorded in the court process.  For you to rely on that evidence or use that evidence in an appellate level you will have to order transcripts.  You cannot bring those witnesses back. Remember that there is no oral evidence provided in the appellate level—unless you have some permission from the court. But, ordinarily, you don’t provide further oral evidence or even repeat the oral evidence. You have to obtain transcripts of the oral evidence that was presented earlier and then you rely / use that at your appeal. To do so, you have to order transcripts from the Registrar of the court.  Remember that you only order transcripts for the evidence that you and the parties have agreed not to admit.  You don’t provide 10 transcripts of all of the oral evidence. You’re only obtaining evidence (oral evidence) that you have agreed not to admit. The parts of the oral evidence that parties have said we don’t need it for the purposes of appeal—you don’t need transcripts.  You have ordered the transcripts and you need to file some proof in an affidavit (that you actually have ordered the transcripts) and you have to do so within 30 days of the filing of the Notice of Appeal.  The day you filed the Notice of Appeal with the court—you have 30 days from that time to file your proof that the transcripts have been ordered.

If your earlier case was decided purely on affidavit evidence (that is possible) and there was no oral testimony given, then, you won’t need to order transcripts—because there was no oral evidence that you need to produce to the appellate court.  Some of the other things that you want to note in the commencement of appeal process is that if you order transcripts that were unnecessary; if you use evidence that was unnecessary for the appeal purposes the court may order costs against you because now you’re wasting the court’s time. You are providing evidence that was not required for the specific appeal issues before the court. You want to remember from my earlier lectures that an appeal is not a rehearing; it is a review of the errors made by the judge / the earlier decision-maker. It is not a retrial. You are only focused on the errors and how do you present your case on appeal to the appellate court.  It is not that you are required to provide all of the evidence; you only need to provide evidence that deals with the specific appeal issue that you have presented.

Second point you want to note—if you wish to amend your Notice of Appeal you can do so without seeking leave from the court / without asking court’s permission—as long as you do it before you “perfect the appeal”. This is done by serving what’s called a supplementary notice of appeal. You prepare it; you serve it; you file it before the perfection of the appeal and you’ll be fine.  Finally, you want to remember that whatever you have stated in your Notice of Appeal—those are your grounds of appeal and your arguments will be limited to those grounds.  You cannot add stuff at the appellate level obviously without the permission of the court.  You want to be careful about what you are asking in your Notice of Appeal. What are the grounds? So that you know that the arguments you will be presenting at the appeal would be relevant for the court.

You want to carefully review each step.  I need not point that out. You want to make sure that you follow all the timelines. Please, please, please review the Rules of Civil Procedure, Courts of Justice Act, Practice Directions and any other relevant legislation.  Every time you take a step in the appeal you want to review this to make sure that you are actually following all the requirements. In our next lecture we’ll talk about “perfecting the appeal” and then we’ll go take it further from there.

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome everyone.

In this lecture we will cover some basic steps regarding an appeal process under the Rules of Civil Procedure in Ontario.

We begin with our usual disclaimer that this lecture is only for educational purposes.  It is not legal advice.  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 an appeal?  You are faced with a decision, in our judicial system, where you disagree with the decision.  You would like to challenge that.  Essentially that’s what an appeal is about. You want to understand that an appeal is different from a judicial review.  We have a previous lecture on this topic which explains the difference between both of these mechanisms—appeal and judicial review.   Both are appellate processes but their processes; their procedures are fundamentally different. They are complementary processes and you need to understand the difference between judicial review and appeal if you would like to dispute a decision. You also need to understand that there is no automatic right of appeal in Canadian law.

What this means is that if you wish to dispute the decision in our judicial system, you need to find the right to appeal in a specific statute. If you can’t find that right, then you are not able to appeal that decision. You also want to be clear that the appeal is not a rehearing; it is not a situation where you are presenting your entire case from scratch with all of the witnesses and all of the evidence to the appellate court. That’s not what an appeal is. It is not a rehearing.  On an appeal there are no witnesses—you simply are arguing on the basis of evidence that has already been presented at the lower court.  If you need transcripts of evidence you will get those and whatever you need. But your reliance is on the evidence that has already been provided.  There are some circumstances in which the appellate court may allow new evidence but that is rare—it not a rehearing—it is simply that you are challenging a decision to the Court of Appeal or Divisional Court and then arguing why the decision was wrong (that you are disputing).

In this process step, number one: that you need to figure out is whether you are dealing with an appeal or judicial review.  If you don’t know the difference, I suggest you check out our previous lecture and figure out whether you need to appeal or you need to apply for a judicial review of the decision that you wish to challenge.

Step number 2: you need to determine whether you have a right to appeal or you need to seek permission to appeal.  And they are two different things.  Remember, I said earlier that you have no automatic right of appeal it must be found in statute. Once you find that statute, depending upon your case, the statute may say that you can simply appeal the decision which is called “appeal as of right” or you have to ask permission from the appellate court to appeal that decision.  Before you appeal it you have to seek permission and it will depend upon the statute.  You need to determine whether (a) you have a right of appeal under that statute or (b) you need to seek permission from the appellate court because if you don’t seek permission or if you are not granted permission you will not be allowed to appeal that particular decision.

Step number 3: you need to obviously figure out what is the appellate court where you can appeal your decision and this is not always straightforward. It depends upon the specific order that you are appealing. Is that order a final order? Or, is that an interlocutory order?

What is a final order? And, what is an interlocutory order? A Final Order generally ends the litigation if not appealed—but not always.  That’s where the complication arises.  In most cases a final order ends the dispute between the parties completely.  An example of that could be an order made on a motion for summary judgment—where the judge has granted a summary judgment motion and may have dismissed a claim.  In that case, if you were the plaintiff and you had commenced a court action for breach of contract, for example, against a defendant and defendant brought a motion for summary judgment and at that motion the judge decided that yes, you have no claim and dismisses your claim in its entirety—then that is a Final Order.  There is a different way to appeal final orders as opposed to an interlocutory order. 

An Interlocutory Order, as it suggests by its name, does not determine the real disputes between the parties; it does not determine the essential substance of the dispute between the parties—which is why it is interlocutory. In the example of the breach of contract case that I mentioned (in the example of the final order)—you brought a motion within your case where you asked the court that the defendant had not produced all of the relevant documents in its possession and you wanted the court to order the defendant to produce those documents.  The decision of the judge on that specific motion is interlocutory because it is not deciding the real dispute—which is the breach of contract between the parties—it is dealing with a subsidiary or an incidental matter in that case but not the essential elements of that case.  So it is called an Interlocutory Order.

Now you want to keep in mind that the determination of whether an order is final or interlocutory is not always easy. You will find that seasoned lawyers (senior lawyers) may disagree on whether a specific order is final or interlocutory.  You will find cases where judges have disagreed on whether a specific order was final or interlocutory.  If you are faced with this difficult decision to determine whether an order being challenged is final or interlocutory and you cannot understand it just keep in mind that you’re not the only one with that problem.

Step Number 4: Once you have figured out whether you have an appeal by “way of right” or you “need to seek the appeal” and you have figured out in which court you are going to appeal the decision or the Order, you need to figure out timelines.  Timelines are crucial under Ontario Rules of Civil Procedure.  You will like to make sure that you read and understand Rules 61.01 to 63.03—which essentially deal with the appeal process in Ontario Courts.  You have to determine what is the timeline to serve your Notice of Appeal (if you are allowed to appeal by way of right).  For example, if you are appealing to the Ontario Court of Appeal, you generally have 30 days to serve and file your Notice of Appeal.  You need to determine if you have to seek leave to appeal—what is the time line to do that?  In case of Ontario Court of Appeal you would have 15 days from the day when the order was issued to seek leave to appeal.  These timelines are important.

You also need to determine, what is the timeline to “perfect an appeal”.  Perfecting an appeal means that you have to take additional steps after you have served your Notice of Appeal or after you have been given leave to appeal before your appeal could be heard.  Those steps are called perfecting the appeal.  There are specific timelines with regards to those steps. You want to make sure that you have absolute clarity on what those timelines are. 

For you to figure out all of these steps, it is essential that you review the relevant legislation.  What it means is that you must review the legislation that is dealing with the subject matter of your underlying case.  For example, if you’re dealing with a discrimination matter under Human Rights Code, you want to make sure that you read the appellate sections or appellate clauses in the Human Rights Code that allow or disallow or relate to the process of appealing a decision of the Human Rights Tribunal of Ontario.

Or it could be another legislation that you may be dealing with or you could be dealing with a dispute where no legislation may apply.  For example, if you have a straightforward breach of contract case in which there is no application of a specific statute and you are only seeking remedies under common law, then this is a scenario where there is no specific statute that deals with the subject matter of your case.  In that case you want to make sure that you at least review the Courts of Justice Act because if there is no other statute that gives you the right of appeal then you must find that right of appeal in the Courts of Justice Act, which covers all kinds of scenarios.  You need to review that.  You want to make sure that you review the Rules of Civil Procedure.  I have mentioned to you that Rules 61.01 to 63.03 are very important. You must review the Practice Directions.

Practice Directions basically explain and further modify the Rules of Civil Procedure.  They are not contradictory to the Rules but they explain further processes adopted by a specific court. I’ve given a link to the Court of Appeal of Ontario’s Practice Directions: (http://www.ontariocourts.ca/coa/en/info/civfam/civil.htm#3)

If you are appealing to the Court of Appeal of Ontario, you must review the practice directions here before you can take any steps in your appeal because these reviews will allow you to determine what you need to do to make sure that your appeal is heard.

Appeals are complicated; the procedures are complicated.  It requires a lot of research and homework on your part to make sure that you get the procedure right. You want to make sure that you review the legislations carefully. You review the Rules of Civil Procedure carefully and the Practice Directions.

Now appellate process has various steps: notice of appeal; seeking leave to appeal; how do you perfect an appeal—all of these things and what we’ll try to do in our future lectures is that we will deal with each subcategory (sub issue) one by one so that we can give you a clear picture of how to proceed with different steps to make sure that your appeal is pleaded and set out proper.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

Forum of Necessity is a common law doctrine. It is a very interesting doctrine because it allows a court, which ordinarily does not have jurisdiction over a case to take jurisdiction of that case because of the necessity of the circumstances.  What does that exactly mean we will explain that in this lecture.

This lecture is for educational purposes only.  If you have any specific questions about your case, you should contact a lawyer or a paralegal or the Law Society of Ontario.

When you believe that you have a claim against another party one of the 1st questions you have to decide is which court has the appropriate jurisdiction to deal with your case.  Generally speaking it is a straightforward matter. For example, if you are involved in an accident in Ontario all parties and witnesses were in Ontario, then it makes sense for the Ontario Court to have jurisdiction.  You will commence an action in Ontario.  This gets complicated, especially, in this day and age where mobility across jurisdictions is very common. For example, you are a resident of Ontario and you buy a vacation package from a company that is based in California to go to the Bahamas for a week.  When you are in the Bahamas you suffer some injuries due to the negligence of the resort that you are staying at.  You come back to Ontario and you want to bring a court action against the party—the resort in the Bahamas. What place has the appropriate jurisdiction to deal with your matter? Is that the court in the Bahamas? Is that the court in Ontario? or Is it the court in California?

In this specific example, when you have purchased a vacation package, most likely there is a contract that goes with your purchase and in the fine print of that contract you will find that the contract specifies which jurisdiction will have the exclusive right to have the matter adjudicated there. Most likely, in this particular example, the contract would say that all disputes arising from the purchase of your vacation package would be adjudicated exclusively in California—that may most likely happen.  But in these scenarios where the disputes are happening across multiple jurisdictions because a party resides in one place; was visiting another place; the party who was involved in the action (in the dispute) was from a 3rd jurisdiction, the issue of jurisdiction becomes live and this is one of the things that lawyers have to decide whether the right jurisdiction has been addressed in your case.  

In this lecture we’re dealing with one specific part of the jurisdictional debate which is a complicated area of law and is covered under Conflict of Laws and Forum of Necessity is only but one doctrine that deals with the issue of jurisdiction.  The Forum of Necessity essentially says:

“Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction.”

This is very broad language. What do we mean by reasonably seek relief? How does the court exercise this residual discretion?  

Let’s look into this by way of some of the court cases in Canada so we can understand how the courts in Canada have applied this concept / this doctrine Forum of Necessity of exception.  There are 3 examples given in Canadian cases where the Forum of Necessity can be exercised. One is if there is a breakdown of diplomatic, commercial relationship with a foreign state; Two: where there is the need to protect a political refugee; and Three: where serious physical threat if the debate was to be undertaken before the foreign courts.  These are 3 examples given in a Canadian case where the Forum of Necessity discretion may be exercised.  This is not an exhaustive list. This is an example given by the court—where the court may consider it appropriate to exercise their discretion and take the jurisdiction of that matter under the Forum of Necessity.

Let’s look at some of the cases where the Forum of Necessity exception was granted in Canada.  There are, literally, 3 cases so far in Canada where this exception was granted.  This gives you a sense of how narrow this exception is and how rarely it is granted by the Canadian courts. The 1st case is called Bouzari v. Bahremani; 2nd is Josephson v. Balfour and the 3rd case Mohammad v. Tarraf (which is literally a case that came out from the Superior Court of Ontario a few months ago).

1. Bouzari v. Bahremani: In this case the defendant is the son of a former Iranian President, Hashemi Rafsanjani.  The plaintiff claimed that the defendant tortured the plaintiff in Iran or instigated the torture of the plaintiff in Iran. The plaintiff became a Canadian citizen. He wanted to bring a court action in Ontario. The defendant had no relationship with Canada; he had never been to Canada; in fact he was denied a visa entry to Canada when he had applied for it previously.  There was no real or substantial connection of this case to Ontario because every disputed issue had occurred in Iran and the defendant had no connection with Ontario.  When the court reviewed this case it applied the 1st test which is called the real and substantial connection to Ontario and found that there was no connection to Ontario whatsoever.  Then the court looked at the Forum of Necessity and decided that in this specific case the Forum of Necessity had the application and it granted the jurisdiction to the plaintiff and granted, in fact, the default judgment at the 1st instance.  Now the claim (this case) became complicated (there were a few cases. I have given you a link for these cases that you can review on Canlii):

https://www.canlii.org/en/on/onsc/doc/2013/2013onsc6337/2013onsc6337.html?resultIndex=4

            https://www.canlii.org/en/on/onca/doc/2015/2015onca275/2015onca275.html?resultIndex=2

But what happened was in the 1st situation the court granted the Forum of Necessity and granted the default judgment. Then the defendant brought a motion to set aside the default judgment. It was set aside. Then the defendant argued that the appropriate jurisdiction for this case to be argued is England not Canada.  Both parties agreed that Iran was not the appropriate place to argue this case. At the 1st instance, the motion judge denied the defendant’s position and said that Canada had taken jurisdiction and Canada was the appropriate forum.  At the Court of Appeal level, the Ontario Court of Appeal overturned the motion judge’s Decision and then granted that Canada was not an appropriate forum and England was indeed the appropriate forum for this case.

The thrust of my point today is that at the 1st instance the default judgment level, the motion judge did in fact apply the doctrine of Forum of Necessity and granted the Forum of Necessity jurisdiction to Ontario. 

2. The 2nd case, it’s also quite interesting it’s called Josephson v. Balfour. This case / this action was commenced in British Columbia. Both the plaintiff and the defendant were Idaho residents they were visiting Canada (British Columbia).  They were playing golf at a golf course in British Columbia. The defendant was driving the golf cart in which the plaintiff was sitting and at some point the plaintiff falls out of the golf cart and gets injured. He was treated in the British Columbia Hospital and then later on transferred to Idaho hospital where he received further treatment. The plaintiff commenced a court action against the defendant in British Columbia and then the defendant claimed contribution / indemnity from the hospital and doctors in Idaho because the defendant believed that those hospitals and doctors exacerbated the plaintiff’s injuries or were negligent professionally (negligent in the treatment of the plaintiff) and therefore the defendant sought contribution and indemnity from them.

 Because the plaintiff was treated in Idaho (by the hospitals and by Idaho doctors) ordinarily the defendant should issue a claim in Idaho for contribution indemnity damages.  But in this specific case the defendant could not commence a claim against those hospitals and doctors in Idaho because the defendant himself was not a patient of those doctors or that hospital.  Idaho law did not allow a non-patient to sue the doctor or hospital.  The plaintiff was not interested in suing the hospital or doctors himself.  What to do in that case?  The defendant brought a 3rd party claim in British Columbia against the doctors and hospital of Idaho. Then court had to decide whether it has jurisdiction or not.  Obviously, Idaho hospital and doctors argued that the court had no jurisdiction over this matter.  In a final decision the court granted the exceptional Forum of Necessity and allowed the jurisdiction of the British Columbia court in this matter. 

This case again had many twists and turns. The trial was scheduled and the plaintiff then brought a motion to argue that his main action should be severed from the defendant’s 3^rd party action because the trial was already scheduled and if the matter was to proceed then the trial will be delayed.  The Court of Appeal in British Columbia agreed with the plaintiff and it severed the 2 actions.  It basically said that the main action between the plaintiff and the defendant will proceed while the 3^rd party action between the defendant and the 3rd parties i.e. the Idaho hospital and doctors will be stayed until the 1st case is decided.  I’ve provided links with these cases and you’re welcome to review them on line.

3. Third case was Mohammed v. Tarraf. This is a case where all of the relevant facts occurred in Dubai and Dubai had proper jurisdiction of this case. Plaintiff and Defendant were business partners in a joint venture. The Defendant was supposed to make some payments to the Plaintiff. He did not do so and instead he threatened the Plaintiff, coerced the plaintiff’s family.  The defendant had relationship with the royal family of Dubai.  He caused the plaintiff and his family to be held by the security forces; he caused their utilities to be cut off from their residence; he caused the plaintiff’s children to be expelled from their school and so the plaintiff along with his family immigrated to Canada as refugees.  Then he brought this action in Canada against the defendant and argued that he could not go and seek a proper and fair trial in Dubai. He feared for his safety. In that case the court reviewed all of the evidence and granted the Forum of Necessity in this case.

Cases where the courts have not granted: I’ll give you some examples where the court refused to grant Forum of Necessity. In one case parties argued that they were unable to obtain counsel in the US; the courts said that doesn’t matter, you will have to go and argue this case in the US.  We will not grant you a Forum of Necessity in Canada. Similarly someone argued that they could not obtain counsel in Australia; someone argued that they had a personal injury claim in New York but they could not proceed with the claim because it was statute-barred due to the limitation period in New York; someone else argued that the trial was too expensive in the US; another party argued that they could not commence a family law dispute in Trinidad because there was high crime rate and risk of personal safety. On these 2 issues the evidence was controverted and therefore the court did not grant the exception. Someone argued that the trial was too costly and inconvenient in Italy, etc. These are examples of cases where the court refused to grant an exception; refused to grant a Forum of Necessity exception and you will find a lot of cases where parties have tried to argue Forum of Necessity and the court has not granted it.

In essence what you want to remember is that this doctrine exists but it is rarely granted and applied only in exceptional circumstances.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

You may be involved in a court action in Ontario in which some of the important and relevant documents to your case are in the possession of a non-party. A non-party is a party that is obviously, not part of your legal proceeding as a party.  It’s not a defendant, it’s not a plaintiff; it’s not a named 3rd party. It is not part of your court action—it is someone who is unrelated to your court action as a party.  That person (that party) has some documents which are crucial to your case and you want those documents to be produced. You want to get those documents so you can use them as evidence in your trial in support of your case.  How do you go about getting those documents? Today’s lecture explains how this can be done through Ontario’s Rules of Civil Procedure.

This lecture is for educational purposes only.  If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for any referral.

I will explain today’s Rules by way of an example.  I will take the example of a defamation case. Let’s say you have sued a party for making defamatory statements against you.  Your understanding is that some of the defamatory statements were made in writing to a non-party.  The defendant may have sent an e-mail, a Twitter posting, a Facebook message or a text message of any kind and that documentary evidence contains defamatory statements against you.  You want those defamatory statements (that document) to be produced to you so you can use it at trial.  Obviously, you are entitled to get that document from the defendant through the discovery process.  This may be a situation where the defendant may not have that document.  For example the defendant may say that the e-mail was deleted a long time ago and they don’t have any possession of that e-mail.  They may even deny the existence of such an email or such a document but you know that a non-party does have that document and you want to get that document because it is relevant to your case at trial.

This process of discovery of that document is part of the larger process of discovery in a court action. If you don’t understand what a discovery process is, I do have 2 lectures on this topic which will give you a sense of what the discovery process is and how do you get the best results out of the discovery process by getting all the relevant documents (producing all the relevant documents) and obtaining all the relevant documents.  The Rules that deal with the discovery process in the Rules of Civil Procedure are Rules 29.1.01 to 33.08. You can read those rules to understand fully what the discovery process is and watch my lecture on this.

Today we are dealing within the discovery process—the specific issue of production from a non-party.  Obviously, you will try and contact the non-party and request for the production of this document—a copy of that document directly from that party. You can send them an e-mail, make a phone call or write a letter and ask for that.  If they’re provided to you then that’s fantastic—you have a copy of that document. What if they refuse to give you that document?

Then your option is to bring a motion under Rule 30.10. This motion will allow you to get a court order from the court that will compel the non-party to give you the document which is relevant to your case.  In some circumstances the non-party may be willing to give you the document but they will give you the document only if you get a court order.  This may be a scenario where the non-party may respond to you and say that they don’t want to offend the defendant they want to have a good relationship or they have another relationship with the defendant which could be jeopardized by them voluntarily giving you that document but they’re okay to give you the document if there’s a court order—because then they’re simply complying with a court order. In that situation, they don’t have a choice.  That may be a situation where bringing a motion (getting a court order) may be a better way of proceeding to get the production of that document.

What would the court consider in giving you / issuing that order? There are generally 2 things: Number one: the document has to be relevant to a material issue in your case. If it is not a relevant document, the court will not give you the order.  You will have to show the court how that document helps your case; how it is relevant to your case and how if you have that document you will be able to prove one or some of the important points of your case. Secondly, the document should not be privileged.  Privileged document in a very loose way—document can be considered a confidential document.  Privileged document has a specific definition. I may be able to do another lecture and explain to you what privilege documents are but I’m not covering that in this lecture. Some of the privileges could be litigation privilege or solicitor client privilege (privileged documents or documents that are exchanged between a lawyer and his or her client).  There are documents that are privileged meaning that they’re not available to the court unless the court reviews the documents and orders that either they’re not privileged or despite their privilege they must be produced.

If the party (the non-party) says that the documents are privileged, then the court has the power to inspect the documents.  You won’t see the document.  The non-one party will bring the document to the judge and the judge will review the document and determine (a) whether it’s privileged or not; (b) whether it ought to be produced even if it’s privileged. The court may even make an order saying that parts of the document may be redacted and the remaining can be produced as part of the production in this discovery process.  That is all in the power of the court.

What you want to remember is that bringing this motion the procedure to follow is the same that is specified in Rule 37. Rule 37 is a broad Rule that explains to you the process of bringing all kinds of motions in the court system. I have done a few lectures on motions in my channel, so please review those if you don’t understand how to bring a motion in the court system.  The main thing that you want to keep in mind is that if you’re bringing such a motion then you must serve the notice of motion on all parties—all parties that are part of your court action and also serve the notice on the non-party, on which you are seeking the order.  In essence, what you want to remember is that discovery is a crucial process in the process of fighting your case because this process allows you to gather all the evidence that you need to prove or disprove the case.

If you want to prove the elements of defamation, you will need to show what evidence indicates or confirms that there were real defamatory statements made by the defendant against you.  You will have to get all the documents—which is why the discovery process is important. The main thing that you want to get from this lecture is that even if you find that a non-party has documents that are relevant to your case you should not worry about it. This is the process that you use to obtain those documents from the non-party and are able to fight your case in court.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

If you have received an unfavorable decision from a court, tribunal or another administrative public body and you want to appeal that decision, you come to this complicated world of appellate review. The appellate review world is complicated because the procedure for the appellate review is complex and many experienced lawyers cannot agree on what the correct process is and sometimes many judges cannot agree on what the correct process should be with respect to a specific appeal. In this lecture we will try to explain broadly what this appellate review process is and give you a general understanding so that you can start the process of doing your own research with respect to the specific issue that you may be dealing with and you wish to appeal that particular decision.

We begin with a disclaimer that this lecture is only for educational purposes and it provides you a very broad overview of the law relating to the process of appellate review. If you have any specific questions regarding your own issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

1st and foremost I want to explain to you that there is a significant constraint on the appellate review process and this constraint is: “an appellate review is a review of error not a review by rehearing”.  This is important to understand because many people have this misconception that if they are appealing a decision, it somehow amounts to a re-hearing of the entire case/a retrial or another trial or reconsideration of the entire decision by an appellate body.  That is not the case.  The most important thing that you want to understand is that when you are appealing a decision you are basically telling the appellate body that the lower court judge or the decision-maker has actually made an error.   You have to explain that error.  On that basis the appellate court will decide whether that error was made and whether that error requires that the decision be set aside or overturned.

The scope of the appellate review is very narrow and this is covered under the topic of standard of review.  I will do a separate lecture on “standard of review” because that is another complicated area of law.  We will get into the details of how a court reviews a decision and what is the criteria in overturning or setting aside a decision.  For now what you want to understand is that when you are asking an appellate body to review a decision, the appellate body is starting with the primary assumption that the decision made by the decision-maker was correct.  Then the burden is on you to show how that decision was incorrect and then what kind of remedies you may be entitled to.  So it is not really a re-review of the hearing; it is not another trial—it is simply a review on very, very narrow grounds—the decision that has already been made.

We will talk about appeal versus judicial review. These are two terms. These are not two different names for the same process.  These are complementary but different processes.  They have different requirements that you should follow.  The 1st question that should come to your mind is whether the decision that you are going to challenge or you wish to challenge—is it subject to a judicial review,or whether you may be able to appeal that?  

In most cases you are appealing a decision where the decision was made by a court or in another administrative tribunal. For example, you had a case in small claims court in Ontario. You received an unfavorable decision in that case. Your ability to challenge that decision would be by way of an appeal and not by way of a judicial review.  In another example, if you have faced a decision before a human rights tribunal, that is unfavorable, then you do not have the right to appeal that.  You will have the ability to seek or apply for judicial review. 

Appeals usually deal with the decisions of the court or a tribunal’s decision whereas judicial review mostly deals with the decisions of administrative tribunals or public.  Some administrative tribunals may provide in their legislation that you may have a right to appeal, while other administrative tribunals, in their relevant statute may provide that you may be able to apply for a judicial review. We will talk about how to figure out whether a specific decision of an administrative tribunal requires a judicial review.  With respect to public bodies, public bodies could be in public institutions for example, hospitals or universities which are considered public bodies.  For their decisions (if you choose or if you wish to challenge a decision of a hospital or a university) you may be able to challenge that decision by way of a judicial review. It will not be done through an appeal process.

For you to determine whether your specific case requires following the appeals process or judicial review, you must review the relevant legislation and determine what is the appropriate process in the circumstances of your case.  

Let me give you some examples of cases for judicial review. Let’s say you are facing a decision of the Landlord and Tenant Board which was unfair.  You were either a tenant or a landlord in the specific dispute and you received an unfavorable decision. The question for you is whether you can appeal that decision or you will have to ask for judicial review and the answer lies in Section 210(1) of the Residential Tenancies Act, which basically provides that an order of the board is subject to an appeal. You can make this appeal to the Divisional Court within 30 days. The appeal is limited only on a question of law.  This part about the grounds for appeal being question of law is subject to the “standard of review” that I talked about.  We will discuss that in a separate lecture because again that’s another complicated area of law with respect to the criteria that the appellate court will apply (in this case, the Divisional Court), in determining whether it can make a decision on the specific appeal that you have submitted to that court.

Another example: In case of a human rights application, you face a decision of the Human Rights Tribunal in Ontario which is unfavorable to you and you will like to challenge that decision. Can you appeal that decision? Or apply for a judicial review?  The answer lies in Section 45.8 of the Human Rights Code, which states that the Tribunal’s decision is final and is not subject to appeal. Your only option with respect to the Human Rights Tribunal’s decision is to apply for a judicial review.  That decision can only be altered or set aside if it is considered “patently unreasonable”.  This wording “patently unreasonable” relates to the “standard of review” that the appellate court will apply in making a decision on your appeal.  

As I mentioned you will have to look at the relevant legislation in determining whether your specific issue requires a judicial review or the appeal process. I have provided some relevant legislations that may be helpful to you.

First of all you will have to find out what is the most relevant legislation that is dealing with the subject matter of the underlying issue that you have. For example, if it was a human rights application, then your relevant legislation is the Human Rights Code.  If it was a landlord and tenant dispute, then the Residential Tenancies Act may apply. If it’s workplace safety insurance issue, then you’re dealing with the Workplace Safety Insurance Act.  There are other legislations that are dealing with certain specific matters.  You will have to determine what legislation and what statute specifically deal with your issue.

Second, if any your issues are not related to a specific statute, it may just relate to common law—in which case it will not be subject to a statutory provision for an appellate or judicial review process.  But if there is a statute that is relevant, then you must review that legislation to understand what does the legislation say about your ability to judicially review the case or appeal.

For judicial review in Ontario you would like to review the Judicial Review Procedure Act. As the name implies, this legislation explains various processes for applying for a judicial review and the procedure that needs to be followed. Another important legislation that you should review is called Statutory Powers Procedure Act. For appeals you would like to look at the Courts of Justice Act, the Rules of Civil Procedure and Practice Direction of the specific appellate court where you are applying for the appeal.

• Legislation relating the subject matter of the underlying issue: For example, Human Rights Code
• For Judicial Review:
• Judicial Review Procedure Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-j1/latest/rso-1990-c-j1.html
• Statutory Powers Procedure Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-s22/latest/rso-1990-c-s22.html
• For Appeals:
• Courts of Justice Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/
• Rules of Civil Procedure: https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/
• Practice Directions – e.g.: Court of Appeal for Ontario Practice Direction: http://www.ontariocourts.ca/coa/en/info/civfam/civil.htm#3

I’ve given an example of the Court of Appeal for Ontario—Practice Direction, which can be found on these links.  I have provided the names of some of the legislations that will be helpful for you in determining whether your case warrants a judicial review application or whether you may be able to apply for appeals.

Once you have determined what your case is, you shall proceed with judicial review or an appeal you will have to now deal with further complicated matters about what is the procedure for appeal? And, what is the procedure for judicial review?—which we will try to cover in separate lectures. I’m hoping to provide first a lecture on the appeal process in courts, followed by the judicial review process.

All in all, what you want to understand is that the appellate process is quite complicated procedurally.  You must carefully review the legislation to understand what process applies in your case. You usually have very limited time with respect to the appeal and judicial review process—which is sometimes as less as 15 days from the day that the decision (the underlying decision) was issued.

If you don’t understand any of these legislations, it may be worthwhile to talk to a legal professional so that at least you can choose the right mechanism through which you should apply for your review of the decision that you challenge.

Thank-you for watching and in the next lectures I will try to cover the topics of the procedure for the appellate review in courts and also the standard of review.