Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

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

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

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

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

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

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

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

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

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

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

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

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

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

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

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

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

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

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

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

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

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In today’s lecture we will talk about the discovery process in a civil proceeding in Ontario.  We will provide you with a very basic overview of what this discovery process is; what kind of principles apply to the discovery process and some of the Rules that apply to discovery process.  The lecture will be quite broad and will provide you with an overview so you can understand the discovery process itself.  As always we will begin with our usual disclaimer that this course and this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

A civil proceeding / a civil action can generally be divided into 3 parts the 1^st part is pleadings; the 2^nd is the discovery and the 3^rd is the trial.  We have covered pleadings in another lecture so I would ask you if you’re not familiar with pleadings to go and look at my other lectures.  Briefly speaking, pleadings are documents such as: statement of claim, statement of defence, reply, counterclaim, third party claim, etc.  These are the basic documents that you file and serve.  They contain the facts of your case and the legal basis for what you are claiming.  If you are claiming something against some party, that will be contained in the Statement of Claim.  You will have all the facts and what is the legal basis for such a claim.  In response the defending party will file their statement of defence.  These are the documents—the fundamental documents that contain what this case is about (what this action is about).  All of these documents are called pleadings.

Now discovery process, which as I said is the 2nd part of the civil action: what is the discovery process?  Let’s go through its definition in a bit more detail.  It’s a “pretrial procedure in a lawsuit where each party can obtain evidence from the other parties”.  The keyword here is each party and evidence to each party means that if you are plaintiff or a defendant, then you are entitled to obtain evidence from other parties or a party.  If there’s only one other party, then you can get evidence from that party but if there are more than one parties in this action then you are entitled to obtain evidence from each of those parties.  What will constitute evidence? What kind of evidence is provided or is obtained? I want you to keep this in mind.  The evidence should be evidence that is relevant to the issues in litigation. That’s the important part that it has to be relevant to the issues in litigation.  Let me give you an example of what could be relevant to the issues in litigation.  Let’s say you hired a contractor to renovate your kitchen and the contractor did not do a good job.  You are asking the court to give you damages for the harm that he, the contractor, may have caused you or for not doing the job properly.  You have some damages because the whole project did not go as it was contracted or as it was planned.  The relevant evidence would be whether there was a contract between the parties and if there’s a contract then a copy of that contract will be relevant evidence. What was agreed upon orally that could be relevant evidence.  If there were photographs of the kitchen, before, after or during the damage—all of those pieces of evidence would be relevant.  What would not be relevant is: how many kids does the contractor have; or how much money do you make through your living; because those are not relevant issues.  The court does not need to know the evidence of those issues to determine whether the contractor did the job properly or not.  The relevant issues or the relevant evidence is the one that is relevant to the very issues before the court / before the judge to decide the matter.

Now, another part that you want to keep in mind and it’s an important one is that the evidence could be good or bad, both kinds of evidence need to be produced.  For example, in this case while the contractor was doing this renovation, he ended up damaging your television in the living room.  Let’s say that during this renovation process he was recording each step of what he was doing.  There is a video that shows that the contractor actually damaged your television set.  Contractor has those videos.  You don’t have copies of those videos and that part of video or that part of evidence which actually shows that the contractor caused that damage to your television—is a pretty damning piece of evidence.   Is the contractor allowed to hide that video to suppress that evidence? No, even though the evidence could be bad for the contractor’s case the obligation under the Rules is still to provide that piece of evidence. Similarly, if you have any piece of evidence that is relevant but it is not favorable to your case, you are still required to provide that piece of evidence.  If it’s good or bad—you cannot be selective about what kind of evidence to produce as long as it is relevant whether it supports your case or it goes against your case you are required to produce that evidence. A natural question would arise, that why should you provide evidence that is not favorable to your case?  The basic idea behind it may be that we are in a fight – why should I help the other side’s case if I have evidence that goes against my case or that supports the other side’s case.  It’s a natural question. 

The answer to that question lies in the underlying legal principle which can be phrased in different ways.  One of the ways is that there is no trial by ambush in a civil legal proceeding. What this means is that there is a fundamental legal principle that our courts (common law courts) believe in a civil system: that is that each party is entitled to know full case and full evidence against it and each party is required to disclose all of the evidence that it has for its case,  so that when the matter goes to trial there really aren’t any surprises on both sides and all parties are ready to deal with the evidence that has been presented and there are no hidden pieces.  You can’t walk into a court at the day of trial and provide this damning piece of evidence and say “this is the evidence, that will win my case” and I never produced it before—because there will be consequences to the late production of that evidence. This is different from a criminal proceeding.  A lot of times our concept of surprise evidence comes from all these criminal shows that we watch where you notice that someone walks into the courtroom while the trial is going on and approaches the lawyer and provides a piece of paper or a photograph that actually destroys the case of the other side and that evidence is presented.  A lot of times our concept comes from that.  Most of those legal shows or dramas are dealing with criminal matters. I want to clarify and to be clear that criminal proceeding is fundamentally different than a civil proceeding.  In a criminal proceeding the Crown/the prosecutor has the burden to show without reasonable doubt whether the person who is accused has committed the offense that he or she is being charged for.  In a criminal proceeding the crown or the prosecutor has an obligation to disclose all of the evidence that they have against the accused to the accused or to his or her lawyer.  But the accused does not have any corresponding obligation to provide any evidence to the Crown—because the burden of proof rests entirely with the Crown.  In a criminal proceeding the accused does not even need to testify if he/she or his/her lawyer believes that the Crown has no case and they will not be able to establish beyond reasonable doubt that the accused committed what they are alleging that he or she committed.  In some criminal proceeding you will find that the accused never even attended and testified at all.  One most recent example I think of, is the Gian Ghomeshi case, where he was charged with sexual assault and certain sexual misconduct allegations criminally.  At trial, the Ghomeshi lawyer brought forward pieces of evidence which were e-mail correspondence that some of the witnesses who were the alleged victims of Mr. Ghomeshi’s assault—they had e-mail correspondence which appeared to be quite friendly towards Ghomeshi even afterward the alleged incidents of sexual assault had occurred. These e-mails were not—even though he had those e-mails and he had provided those e-mails to his lawyer—the lawyer did not have any obligation in the criminal proceeding to provide those e-mails to the Crown.  When the trial began Ghomeshi’s lawyer brought forward those e-mails and put those e-mails to the witnesses—basically used those e-mails or correspondence to doubt the credibility of those witnesses.  It is very different in a criminal proceeding (what I want you to understand is that it is different in a criminal proceeding).  In a civil proceeding there are no surprises.  You are entitled to know all of the evidence that is against you.  Similarly, the other parties are entitled to know the evidence that you have against them.

How is the discovery process conducted? 1st there is documentary discovery and 2^nd then there are oral examinations that are conducted.  In some cases you can have written examinations. You can also inspect property. If one of the relevant issues relates to property then you are entitled to inspect certain property.  In some cases medical examination of a party may also be part of the discovery process.  Documentary discovery is generally one of the most important aspects of discovery except for the examinations.  You are required to provide all documents and documents includes data and information in a in an electronic format.  What this means is if you have any paper trail / paper copies you are required to produce those; if you have any e-mails; letters; text messages; photographs; videos; audio recordings; etc., all of these are required to be produced.  The word “document” is actually defined in the Rules of Civil Procedure.  You can see it here: “a document includes data and information and in electronic form and in the electronic includes created recorded transmitted or stored in digital form or in other intangible form by electronic magnetic or optical means or by any other means that has capabilities of creation recording transmission or storage, similar to those means, and “electronically” has a corresponding meaning”.  It’s a very broad definition of document and it includes all kinds of evidence and you want to make sure that all of those kinds of evidence are produced.  With respect to electronic evidence, I want you to keep in mind the obligation to produce is the actual electronic copy of the electronic evidence not just a printed copy.  For example, if you have e-mails, the obligation is to provide the e-mail in its electronic format and not just printed and provided to the other side.  Generally speaking, if there are no issues with respect to how the data is stored and how it is created, then most counsel or most parties are Ok to receive the content of the e-mail in a printed form. 

Oral examination is an examination of a party under oath. It is recorded and transcribed and it is used at trial.  The oral examination does not happen in court. It happens outside of court. There are private companies which are called court reporters. They have these facilities with which you book. They have rooms and a court reporter. You swear an oath and your examination is recorded while the other party asks you questions or their lawyer asks your questions.  Similarly, you can ask them questions.  It is all scheduled before hand and then the examination is conducted.  All of this examination (because it is under oath)—the evidence that you provide at all examinations for discovery is used and can be used at trial.  This evidence is as good as evidence given at trial. There’s a significant importance to the oral examinations for discovery.  

Some of the procedural aspects of discovery that I want you to understand, obviously the most important part is Rules of Civil Procedure which provide specific Rules with respect to the conduct of discovery.  These Rules are 29.1.01 to 33.08. I will encourage you if you’re going towards the discovery process, to review these Rules very carefully.  Each Rule has significant importance and I will try to cover specific Rules in ongoing lectures.  I’m not going through these Rules in this lecture because it will be a very long lecture.  It will be cumbersome to cover all aspects of it.  We will cover specific Rules later on in further lectures. Just so that you understand broadly the Rules—the way the Rules define the discovery process is that once the pleadings are closed—meaning that every party has filed their reply and defense and statement of claim and what not—then within 60 days parties have to agree to a discovery plan.  Discovery plan is generally you agree to certain dates—when will we exchange documents, when will we conduct examinations for discovery, what dates if there are potential motions for undertakings and refusals, and whatnot that arise from an examination from discovery, what are the dates for that.  A discovery plan is a plan agreed upon between parties.  It could be very brief, it could be very elaborate. It outlines some of the dates when certain steps for discovery need to take place. Once the pleadings are closed you also have an obligation to prepare affidavit of documents and serve it on the other side. Affidavit of Documents are essentially your affidavit that states that I have gone through all my records and everything and I believe these are all the documents that I believe are relevant to the issues in this action and I’m giving these to you. You receive the Affidavit of Documents from the other side.  That is the documentary disclosure that is conducted through affidavit of documents. Then once you have the affidavit of documents, you have oral examination scheduled where you examine the other side and they examine you.

Value of Discovery: Discovery is one of the most important steps before trial.  I think it is important to understand the value of discovery and some of the things that discovery can allow you to do. 1. It enables the parties to assess the strengths and weaknesses of their case and this point is important. I can tell you from my experience, when we have conducted examinations for discovery at the end of examination, the lawyers who are reviewing the case objectively for their client and reviewing the case objectively for the other side—they have a very good sense of the merits of the case in terms of the ability to succeed based on the evidence that is before them. After the examination for discovery is completed, generally lawyers have a very good sense and they can advise their clients, not in all cases, but generally speaking, what are the strengths and weaknesses of that case. And once you are clear about the strengths and weaknesses of your case then it helps you to narrow down the issues for trial.  Once again let’s say you have thought about 5 different issues when you filed your pleadings and you thought all of those issues were important. Once you have conducted examination for discovery you may realize that not all of the issues are important only 2 issues are important and you can actually narrow down the issues. You can focus on those issues at trial. Examinations for discovery and discovery process also helps parties reach a settlement because now all the evidence is on the table, you have seen all the documentary evidence, you have seen all the stuff that the other side has in support of their case against your case/ in favor of your case—they have seen yours. You have examined the other side, they have examined you.  There’s not much left other than the actual trial where you allow the judge to determine who’s right and who’s wrong but prior to that if you would like to reach a settlement you have a very good sense of the strengths of your case.  It then allows parties to be reasonable and agree to a settlement.  It also makes the trial process more efficient and fair because now you have narrowed down the evidence; you’ve narrowed down the issues.  You have a clear sense of what the evidence is going to be at trial. It makes the process a lot faster, more efficient and fair.

In conclusion you want to keep in mind that discovery process is actually one of the most important process before trial. You want to carefully review all of the rules that apply in discovery process and you thoroughly prepare for the examination, why? because you want to keep in mind that over 90 percent of cases in Ontario civil cases actually do not go to trial. They settle prior to trial. If you have conducted an effective examination for discovery and you have shown the other side through your examinations and documents that you have a stronger case then your ability to get a better settlement is much higher.

Thank you for watching. I will try to cover different aspects of the discovery process separately in the following lectures. If you have any questions or comments please feel free to contact us and we look forward to seeing you in the next lecture.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel

In today’s lecture we will talk about service of court documents in Ontario.  This lecture deals specifically with matters / proceedings in the Superior Court of Justice in Ontario.  It does not deal with matters that relate to small claims court.  However, the Rules relating to service are quite similar in small claims court and in superior court.  You will benefit from this lecture even if your matter is in small claims court. This topic has come a few times. I had interactions with some of you who had specific questions about service of documents in their own proceedings.  Then I ended up dealing with this matter, in one of my own court cases, where on behalf of my client I had to bring a motion to the court and ask for a relief on substituted service—not something that we will cover today.  It has become an important topic so I thought it would be prudent to cover it now.  We begin with our usual disclaimer that this course is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario to get a referral.

There are different types of court documents. Some of these documents are a Statement of Claim; Notice of Action; Notice of Application; Statement of Defence; Counterclaim; Third Party Claim; Crossclaim; Reply; Affidavit of Documents, etc. All these documents are referred to in the Ontario Rules of Civil Procedure.  How do you serve those documents on different parties? That is all specified in the Rules of Civil Procedure.  We’re going to focus today on the service of originating process which is an important topic.  Why are we going to talk about the originating process?  We will cover that.  Let me explain what an originating process is.  This is covered under Rule 1.03(1). There are specific documents that are considered documents of originating process. Statement of Claim, obviously, Notice of Action, Notice of Application, An Application for a Certificate of Appointment of an Estate Trustee, a Counterclaim against a person who is not already a party to the main action, and a Third Party or subsequent party claim. If you go to Google; go to the Rules of Civil Procedure; open it right here under Rule 1.03(1) Definitions. The originating process is defined here and these are specific documents that are listed here which constitute originating process. Why do you need to effect proper service for the originating process? Why is this so important? I think you can understand from the nature of these documents that these are the documents (originating process documents) are the ones that actually start a court proceeding.  If it’s a claim, then it’s starting a court action; if it’s an application then it’s starting an application.  Any originating process is the very 1st document that allows you or a party to commence a proceeding in the Superior Court. Now there is a separate process of going to court, filing your Statement of Claim, getting the court file number and having it issued. Once that document is issued the Rules require you to serve that originating process—statement of claim; that notice of action—on to the other parties because then the parties involved would know that they are involved in that proceeding.   They, then, have an opportunity to defend themselves or defend their position in that proceeding.  If the originating process is not served on any of the parties, then the situation that may arise is that the defendant or respondent may not even know about a proceeding.  Put yourself in the shoes of a defendant (if someone commences a court action against you). For example, the allegations may be that your dog may have bit that person.  That person brought a court action against you for certain damages. That person goes into the court, files a statement of claim and gets that issued.  But if you don’t know that there is a court action against you, you have no opportunity to defend yourself. And if you’re not participating in that proceeding, then what can happen is, the applicant or the claimant has the opportunity to seek default remedies because there are specific timelines.  If you have not responded or you have not filed your statement of defence or other court documents that are necessary to participate in that court proceeding then, after the timeline is over, the applicant or the claimant can go to the court and say that the defendant or the parties / the respondents / the defendants have not participated / have not filed their statement of defence and I want a default judgment against those individuals or those parties.  Once the claimant or the applicant can get a default judgment then they can proceed to have the enforcement of that default judgment.  It’s a pretty significant remedy for an applicant to proceed—absent a defendant or respondent participating in the court process.  Because the applicant can go and get a default judgment, the courts are very concerned about issuing / granting of default judgment when there is no defendant or respondent present. Ideally what courts like is for all the parties to show up, all the parties to present their positions to the court, present the evidence and then the court can decide who is right and who is wrong.  If there’s only one party before a judge / before the court and the other party is not present, then the natural question that arises in the court’s mind is whether the party that is not present knows that there is a court action against them.  When you proceed with that motion for default judgment / default remedies, then the court is going to examine how you conducted the service of your originating process.  

The court is going to look at the Rules and the court is going to look at what actions you took to serve those documents.  If you did not take the steps that are required by the Rules of Civil Procedure, the court will send you back and will not grant you the remedy that you’re asking for.  That is why it is most important that the originating process be served properly.  You are aware of all the Rules that are imposed with respect to the service of the originating process.  Rule 16 of the Rules of Civil Procedure is the one that specifically deals with service of all kinds of documents.  Rule 16.01 deals with the service of originating process.  Rule 16 basically says: “an originating process can be served personally or by alternative to personal service”.   Let us look briefly at what is meant by a personal service? And, what is meant by an alternative to personal service?  Personal service is specified in Rule 16.02. When you read those rules and I’ll take you there.  We will quickly go through the Rules on the website.  The Rules are very specific. They have specific requirements. If you are to service the document on an individual I mean a municipality, a corporation, a minor, a mentally incapable person, a crown, a person who is absent—there are different kinds of parties based upon their circumstances and there are different obligations on you to ensure that the service is properly effected on these parties. For example, if you’re serving the originating process on an individual, the easiest way of doing a personal service is by leaving a copy of the document with the individual.  We see this often being played in the movies when someone is sitting at a restaurant and a person comes in and approaches them, addresses them, confirms their identity “are you so and so” “Mr. So and So” and the seated person says yes, then the other person hands over a document saying you’ve been served.  You don’t have to in Canadian jurisdiction say the wording “you have been served”, you just need to provide the document.  One of the nuances of this, is, that it is not necessary for that person to take the document from your hand – that’s not your obligation.  If the person refuses to take the document, you can just leave it in front of that person – on the table, on the ground and just walk away.  You’re not required to ensure that the person accepts that document from your hand as long as you confirm the identity and you have either handed over the document or left it in front of that person and walked away.  That will be sufficient in terms of a personal service on an individual.

With respect to a corporation, you can serve the originating process on an officer, director or agent of the corporation or with any person at any place of business with the corporation who appears to be in control or management of that business.  Obviously, if you know the identity of the officers or directors or agents of the corporation you can serve it on them, otherwise the common practice is that you go to one of the offices of the corporation and if they have a reception you serve it at the reception.  That will generally be considered sufficient personal service.

Let’s go down to Rule 16.01 to have a quick look at it. As I mentioned Rule 16.01 basically says that originating process shall be served personally or by an alternative to personal service.  If you scroll down Rule 16.02 (is the one that I just briefly went over) it talks about how to serve an Individual, Municipality, Corporation, Board or Commission, Person outside Ontario carrying on business in Ontario, Crown in Right of Canada, Crown in Right of Ontario, Attorney General, Absentee, Minor, Mentally incapable person, Partnership or Sole Proprietorship. All of these categories are specified here.  If you are dealing—the common ones are individuals or corporations.  If you’re dealing with an entity that is not one of those 2 categories then you need to review the specific rules and then understand and follow them.  Alternative to personal service is under Rule 16.03.  Let’s quickly look at the Rule. Alternative to personal service obviously means that if you could not effect personal service then you have an option to do it and by alternative means.  One of the alternative means is that you can serve the document (the originating process) at the place of residence of that person. If you scroll down [Rule 16.03 (5)] Service at Place of Residence: “where an attempt is made to effect personal service at a person’s place of residence and for any reason personal service cannot be effected;” (i.e., the person is not there that you want to effect service to and you are unable to serve that person personally) “the document may be served by (a) leaving a copy, in a sealed envelope addressed to the person, at the place of residence with anyone who appears to be an adult member of the same household.” It cannot be a person who is a minor.  You cannot serve it on them. You can serve it on the person spouse or parents or any adult member who appears to be belonging to the same household.  That’s step number one (in a sealed envelope).  Then, “(b) on the same day or the following day by mailing another copy of the document to the person at the place of residence, and service in this manner is effective on the 5th day after the document is mailed.”  There are basically 2 steps if that person is not present at the residence. You leave it with an adult member of that household and then the next day you have to send another copy by mail to the same place of residence if you don’t follow this step number 2, then the service will not be effective. That’s an example of effecting service at the place of residence. Another example could be, acceptance by a lawyer.  If, for example, you are serving documents on one of my clients and you cannot locate my client or you wish to serve it on me because you know that I’m the lawyer, then you contact me and you say that I am willing to serve the document on you as their lawyer.  Important for you to know is that I need to confirm to you that I have the authority to accept the service on behalf of that client. That person / that party may be my client on other matters but I may not have the authority to deal on behalf of that client on this specific matter that you are dealing with.  Acceptance by the lawyer is important unless the lawyer is already a ‘lawyer on record’ in the court record.  Then you don’t need to have a specific approval from the lawyer. Another example of alternative service is last known address. Once you know the last known address of the person you can effect service there.  Let’s look at how you do that. Rule 16.03 (4) Go to Service by Mail to Last Known Address: Service of a document may be made by sending a copy of the document together with an acknowledgement of receipt card (Form 16A) by mailing to the last known address of the person to be served, but service by mail under this subrule is only effective as of the date the sender (which is you) receives the card.” What this means, is, when you’re mailing it to the last known address you send the card, the person accept and signs the card, sends it back to you—when you receive it only then the service is effective.  That’s now generally.  With respect to service on a corporation, you can find out the last known address of the corporation from the Ministry of Government and Consumer Services.  You go to the Ministry (there is a branch in downtown) and then you get what’s called the Corporation Profile Report.  That will indicate the last address that is recorded in the government records of that corporation.  If you mail that document (the originating process) on that recorded address, then the service will be effective.

It can get complicated but as I mentioned the service originating process is crucial. It’s very important.

You need to make sure you do it properly. There are organizations / companies called process servers. These are companies that are specialized in serving court documents. That’s what they do all day long. You can always google them, find one in your jurisdiction, contact them and ask them to effect service on your behalf. That maybe at a little bit of cost to you—it is not significant.  I think that maybe an easier way to ensure that the documents are properly served and the process servers know that once they have effected the service they will provide you with an Affidavit of Service.  They will do the whole thing and you will not have any issues if you have to appear before the court to prove the service of documents.

Now a topic that I have not covered but to which I alluded to in the beginning is something called substituted service or dispensing with the service.  What if you try all of the above things and you were still not able to serve? You can actually under Rule 16.04 bring a motion before the judge and get an order for substituted service—meaning other ways of effecting service that you think will bring the originating process to the knowledge and attention of the parties or completely dispensing with the service.  There may be circumstances where you believe that service simply cannot be effected and you want the court to dispense with it.  In that case you’ll have to bring a motion and you’ll have to explain to the judge why you couldn’t do personal service or alternative to personal service and why substituted service or dispensing with the service is appropriate. There may be circumstances where you may be able to show to the court that the effective way of serving is by e-mail, by Facebook, Twitter or an Instagram account. In a motion that I recently brought, I was able to explain to the judge why email service will bring the originating process to the attention off that party.  The court granted me that permission.  If you have to explain—it has to be a reasonable position, it needs to make sense and then the court will grant you the remedy. Service on a lawyer who is not a lawyer on record: as I mentioned, if I am a lawyer for that party but not on the specific matter, then you can ask me and I can refuse to accept service then you can bring a motion and explain to the judge that Mr. Mushtaq is counsel for that party in an existing proceeding, so he’s obviously in contact with that party.  I want the court to order that if we serve the originating process on Mr. Mushtaq, this will be an appropriate service and should be accepted. That’s also a possibility that you can get court’s permission to serve on a lawyer that you know is in contact with that party and will be able to communicate your originating process to the party.

In conclusion, you need to carefully review Rule 16. I’ve shown you some parts of it but depending upon your circumstances, you want to make sure that you review it, you understand it and then you ensure that the service is effected pursuant to the Rules of Civil Procedure.  You then, ensure that you have the proper Affidavit of Service prepared and it’s ready if you need to bring a motion to the court for default judgment.  The court is going to ask you how did you affect service? And do you have an affidavit of service? If it was not you, and someone else affected service. 

Thank-you for listening. Thank-you for watching.  If you have any specific questions on this topic, please do not hesitate to send us an e-mail or contact us and we’ll happy we’ll be happy to address that in another lecture.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

If you are thinking of starting a court action in small claims court there are a few things that you must consider before you do so.  We will talk about 3 important things that you must have in your mind before you commence.  We begin with our usual disclaimer that this course is not legal advice.  If you have any specific questions regarding your case you must contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

What are the 3 things that you must keep in mind number? [A] One the monetary limit of Small Claims Court;  [B] Number 2, the location of the court; and [C] Number 3, what other powers does the small claims court have, that you should know before you proceed with your court action.

[A] Monetary Limit: a lot of people already know this; the monetary limit of small claims court is $25,000.00—it used to be $10,000.00 a few years ago.  Then the Ministry of Attorney General increased the limit to $25,000.00. What you want to keep in mind is that $25,000.00 is only the value of the claim – it does not include disbursements.  Disbursements are the cost of running that court action. For instance, when you file the claim in the court you have to pay certain fees.  Those fees are called disbursements.  You may have to serve documents on the other party—you may incur cost.  You may have to prepare documents or book of documents for Trial and you may have binding charges, photocopying charges, faxes and whatnot. Those are all the costs that are associated with the running of the court action.  In court these are called disbursements.  The disbursements are on top of $25,000.00.  There are certain limitations in terms of how much disbursements you can get.  For instance, for a service of a document, I believe the limit is $60.00 for that particular service.  There may be some other limits but the important point that you want to keep in mind is that $25,000.00 does not include disbursements.  You claim disbursements in addition to $25,000.00. Also $25,000.00 does not include other costs; e.g., if you have retained a lawyer or paralegal to pursue your case, and you are successful; you may be able to get some costs on top of your claim. I believe it’s Section 29 of the Courts of Justice Act that prescribes that you can only get costs up to 15% of the value of your claim.  If you get a judgment for $20,000.00, your costs will be limited to $3,000.00.  What you also want to understand about costs, is that there are circumstances in which you can get more costs. The Rules of Small Claims Court (I believe it’s Rule 19) and also Section 29 of the Courts of Justice Act indicate that if the other party has acted unreasonably (and unreasonably could be: prolonging the proceeding improperly, not accepting a reasonable offer that you made under the Rules of Small Claims Court or acted in any other improper way) you can bring it to the attention of the court on completion of trial and before the costs are awarded.  The court may actually impose additional costs against that party as a penalty.  You may be able to get more costs if you are successful in showing that the other party did act improperly.  What you want to keep in mind is that $25,000.00 does not include interest.  The court is also empowered to award prejudgment and post judgment interest.  These are 2 different kinds of interest but those interests could be awarded.  You may claim those on top of $25,000.00.  All in all your claim maybe $25,000.00 but the total recovery may be higher than $25,000.00, depending upon all these costs that you may have incurred in the process of pursuing your court action.

[B] Location: Now the location of the court is an important point. Why? Because if you are commencing a court action in the Superior Court of Ontario, then you can pretty much go to any court in Ontario and commence your Superior Court action.  But when it comes to Small Claims Court you actually do not have that choice.  You have to commence a small claims court action in a specific territorial division—relevant municipality—if that could be understood better.  What are the factors that the court will consider in deciding which court office (which small claims court office) has the jurisdiction? There are 3 things that the court will consider.  1. Where did the events occur?  Let me explain that by way of an example:  Let’s say, you have an office in Toronto and you needed some renovations.  You hired a contracting company whose office is in Vaughan. But they came down to Toronto and completed your project or worked on your project. You had some sort of dispute because of that service.  You’re going to Small Claims Court.  Now the events occurred in Toronto.  Because the events occurred in Toronto, you can go to Toronto Small Claims Court and commence a court action.  You don’t have to go to a court office near Vaughan or in Vaughan Small Claims Court where the defendant is.  You can actually commence it in Toronto. 2. The other option is where defendant lives or conducts business.  In the same example you have the option to go to a Small Claims Court in Vaughan. Just so you know there isn’t a small claims court in Vaughan. I believe New Market has the jurisdiction for a small claims matter for Vaughan. Where ever the defendant lives or conducts business, you can go to a small claims court office in that area. In the area that has jurisdiction and you can commence your court action there or 3. in the nearest court office to where the defendant lives or conducts business.  In our example, for Vaughan you can go to Newmarket which would be the nearest court office—where the court has jurisdiction.  If you, for instance in this example, let’s say you personally live in Brampton.  You believe that it will be easier for you to pursue this court action in Brampton and that’s where you want to commence the small claims court matter.  You are not allowed to do that.  The defendant may object to it and may bring a motion raising this issue that you are not in the appropriate court.  You may be compelled to transfer your matter to the court which has jurisdiction or you may have to restart a new claim in that court.  You want to make sure that you commence your court action in the appropriate court office in the beginning so that you don’t have to deal with any further delays because of location issues.

[C] Powers of the Court: Finally, you want to understand some of the powers of the court and in my experience, I have noticed that a lot of lawyers and paralegals are at times unclear that small claims court has equitable powers.  It does have equitable powers.  A lot of people who have not dealt with small claims court frequently believe that the small claims court does not have equitable powers.  If you’re not clear about what equitable power is, you can watch a lecture that I recorded a few weeks ago—it’s called equitable remedies.  In that I explain what is an equitable remedy and what are those powers that a court may exercise.  In this lecture what I can explain is that small claims court does have equitable powers.  If you require an injunction in a matter where the value of your claim is $25,000.00 or less you can claim for an injunction; you can claim for a specific performance on a contract if the value is $25,000.00 or less; you can have an action for recovery of personal property in small claims court if the value is $25,000.00 or less; you can claim declarations. Sometimes you have a human rights matter that is added to a civil action, it’s not just a human rights matter but added to a civil action and it’s part of a small claims court proceeding, then you may seek the court’s declaration that the party was indeed discriminated against and that’s a declaratory relief that you can seek through small claims court.  All of these powers are available. 

In essence, what you want to understand is that with respect to Small Claims Court powers they are not much different than the Superior Court powers—except that the Small Claims Court deals with matters where the value of those claims are $25,000.00 or less. And so this brings us to our last point which is something that you should consider strategically.  Sometimes if your matter is for $25,000.00 or less you don’t have a choice but to go to Small Claims Court.  In fact, if you go to Superior Court for a matter that is less than $25,000.00 or $25,000.00, you may get penalized for going to Superior Court in terms of when the costs are awarded. In situations where your claim is more than $25,000.00 let’s say you are entitled to claim $30,000.00 or $35,000.00, it’s a matter of strategy whether you would like to pursue your case in Superior Court for $35,000.00 or forego $10,000.00 and go to small claims court.  Some of the things that you may consider is speed in Small Claims Court—the matters proceed much faster than Superior Court.  You can actually have a trial in 8 months, 9 months (within a year)—if you move your matter forward quickly. 2nd component that you want to consider is cost—whether you are represented or unrepresented, your cost in small claims matter may be much less because there are less steps involved in a small claims matter.  Then, finally, the process itself is much simpler.  You can easily represent yourself if you have done your homework and present your case and be successful at Trial.  These are some of the things to keep in mind before commencing a Small Claims Court action. Hopefully this lecture gives you a good understanding before you actually proceed with the small claims court matter.

Thank-you for watching and we’ll look forward to seeing you in the next lecture.

Show Notes:

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Lecture Slides:

Welcome everyone.  This is Amer Mushtaq from YouCounsel.

A lot of people in Ontario and elsewhere in Canada lease automobiles or other equipment for their use.  At some point you may have leased a car or someone you know may have leased a car but the majority of people do not know or understand what happens when they are unable to make their lease payment.  We will cover this specific topic in today’s lecture so you can better understand what happens when a default or nonpayment of the lease occurs for any kind of equipment or automobile lease—we are not talking about residential leases.  We’re talking about automobile leases or equipment leases and equipment lease would include anything like a printer or TV or refrigerator or a car or airplane—any kind of equipment.  All these equipment leases are quite similar in terms of their basic structure and what happens when there is a default that occurs?  We will begin with our usual disclaimer that this course is not legal advice.  If you have any specific questions you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

Now, what is a lease?  A lease is a contract. And it is a contract for renting a certain item for a specific time period.  The main thing you want to understand is that the lessee, i.e., the person who is renting does not have ownership of the item.  They are renting.  They can rent for instance a car for a day or for a week or for a month or for 5 years it is still a rent/a lease.  The time period is defined in the lease agreement—whether it’s for a day or for 5 years and then the lessee does not have the ownership of that item.  In some cases you may have the option to purchase that item at the end of the lease and that’s how the lease gets complicated.  Fundamentally, a lease is no different than anything that you take on rent.  As I said the leases get complicated. 

There are basically 2 types of leases.  The 1st one is called a True Lease.  True Lease is generally when the lease term ends and you return the item.  For instance, when you rent a car for a day or for a week—at the end of that day / at the end of that week, you actually go and return that car.  That’s an example of a True Lease—you paid the rent and then you returned the rental item back. What happens on a True Lease is that in case of any legal issues the common law principles of contract apply.  We’ll talk briefly about what those principles are and they’re important to keep in mind.  The 2^nd kind of lease is called the Finance Lease.  A finance lease is really more like a security agreement for that item.  In other words the leasing company or the automobile company that’s leasing that item really do not want that item back.  That’s the way the lease is structured.  Essentially, they are financing that lease for you.  In finance leasing the lessee has a right to purchase at the end of the lease term.  That’s a general clause in that finance lease.  In finance lease, there is in Ontario an Act called Personal Property and Security Act that applies in addition to common law principles of contract.  It’s important because this particular Act provides additional rights and obligations on both parties.  It is important to consider this Act when there is a default—what are the options available to both parties?  The legal distinction between the True Lease and Finance Lease for the purposes of law is important.  The court when it’s deciding whether a True Lease or Finance Lease will review a number of factors in that lease agreement and then decide whether it’s a True Lease or not and then apply the legal principles accordingly.  It’s an important distinction legally and so you should understand whether you’re entering a True Lease or Finance Lease.

We’re talking about Default.  Default occurs in one of the instances when the lessee cannot make a payment, e.g., if you have rented that equipment and you are unable to make a payment.  In that situation it is termed as a default of the lease agreement.  What happens in that situation?  If a default has occurred the lessor or the leasing company is entitled to common law damages.  As we said—the usual principles of contract law would apply.  What is that basic principle?  The basic principle is that if the default has occurred and the lessee is unable to make a rental payment/lease payment, then the court will “put the plaintiff (that is the leasing company) in a position where he would have been in had the defendant (which is you—the lessee) fully performed his contractual obligations”.  What that means is if you have a lease of 5 years term and you are in default after one year, then the court is going to put the plaintiff at the end of 5 years—that means if you had made all your 5 year payments how much money would the plaintiff have received from you.  That’s the position—that is the future position.  The plaintiff will be put in that future position and that means the damages against you will be the amount of the balance payments that you have not made.  That’s the basic common law principle for damages.  But there are 2 qualifications to it which are important.  Common law damages are subject to the principles of mitigation and remoteness.  We will talk about mitigation today.  We will not talk about remoteness today.  Mitigation is an important principle to keep in mind in common law damages.  What mitigation essentially means is that whatever are these damages that put the plaintiff in that future position, whatever those damages are the lessor / the plaintiff / the leasing company has an obligation to reduce those damages or to help you reduce those damages.  That’s called the principle of mitigation.  Common Law damages are then whatever the damages are or whatever that future amount of damages is minus whatever the mitigation efforts that the lessor has made to reduce your damages.

Let’s explain that by way of an example that will probably make you understand it better.  You lease a car for $500.00 per month for 60 months.  In other words you’ll be paying $30,000.00 over the course of 60 months.  You make 10 payments and then you are unable to make further payments.  A default occurs at a 10 month period.   50 months is outstanding—pretty straightforward.  The damages are 50 times $500.00 is $25000.00 less mitigation.  This is the damages under common law principle.  This is the future position as if you have paid all of the money for 60 months—the lessor would have received $25,000.00 plus $5000.00 that you have already paid that’s $30000.00.  Now that the default has occurred damages are $25000.00 less mitigation.  Mitigation is that this lessor will now take back your vehicle and then try to find another lessee and rent that vehicle to that person.  In this situation let’s say that the mitigation occurs after 10 months.  The lessor is able to lease to someone else for the same payments ($500.00 a month) after 10 months.  For 10 months you pay the money, then you are in default and the lessor took it back from you and made efforts to lease it to someone else.  It took the lessor 10 months to lease it to someone else for the same $500.00 per month.  What are the damages? The total damages were 50 months in the beginning because you had paid for 10 and then 50 were outstanding.  Then they received the money for 40 months from someone else.  The damages, now, are 10 months which equals $5000.00.  This is the $25,000.00—which was the initial damages—now reduced to $5000.00.  The principle of mitigation as you can see is very helpful for the lessee because the damages can be reduced if the lessor is able to recoup its losses from someone else.  The lessor has to make these efforts to try to mitigate those damages.  What happens if the lessor does not want the responsibility of mitigating its damages?  This is an added obligation—you agreed to pay for 60 months now you’re unable to pay after 10 months.  The lessor has to take over this responsibility of taking the vehicle back finding other customers and then try to re-lease the vehicle or the equipment.  The lessor doesn’t want that responsibility—is there a way to get around this obligation of mitigation?  The answer is yes.

And it’s called liquidated damages.  The Lessor can have a clause in the lease agreement which is “a liquidated damages clause” and which allows the lessor not to mitigate the damages.  If you have a liquidated damages clause in your lease agreement the lessor may not have the obligation to mitigate its damages.  What is this liquidated damages clause?  (a) “Liquidated damages” is a genuine pre-estimate of the damages.  The court says that it must not be an amount which is excessive or unconscionable—it has to be a genuine pre-estimate.  (b) In our example, the pre-estimate really is $25,000 because that’s the amount of money that’s outstanding, less some discount for the immediate payment—that is being made to him immediately.  For example, the lease agreements would indicate about a 3% per annum discount on this to justify that it’s a genuine pre-estimate and not a penalty.  (c) In our example, if there is a clause like that (and I’ll show you an example of such a clause and it’s very common) the lessor puts a clause for liquidated damages—the obligation to mitigate then shifts onto the lessee in a way.  The lessor doesn’t have to take the car back and go find another lessee so that your damages could be reduced.  The obligation now is on you.  You can go, and if the lease agreement permits, find another person who can take over your lease, so that you can get out of the lease and not incur those damages.  Someone else can pay to the lessor.  Hence you notice these websites like leasebusters.com or other lease websites, where lessees who believe that they are unable to make payments or they do not wish to continue with their lease agreement, go and look for someone else. 

An example, when you go on leasebusters.com, you can find these amazing deals.  For instance, if someone wants to get out of a lease worth $25,000.00 (outstanding payment) and if you can help them out there you may be able to take over that lease for $20,000.00.  That person may pay $5000.00 so that you get the advantage of a cheaper lease and they don’t have to pay $25,000.  That’s the concept behind all these websites.  The obligation is shifted on the lessee.  The lessor doesn’t have to go around looking for another lessee.  The liquidated damages clause—when you look at your lease agreement there will be a clause called Remedies clause and in that Remedies clause all of the liquidated damages stuff is there.  A lot of people will not even read it.  They may not even recognize and may not even understand what that clause says.  I’m going to give you an example of a similar clause and you’ll see how complicated this may sound:

“Upon a default (which is one of the example is when you’re unable to make payment) Lessor (leasing company) may: (a) terminate this lease; (b) declare the Stipulated Loss Value immediately due (and we’ll talk about what that stipulated loss value is), as liquidated damages and not as a penalty (it cannot be unconscionable or excessive); and (c) peacefully repossess the equipment without court order or without liability for entry or damage to property or require the Lessee to return the equipment to the Lessor.  The foregoing remedies available to the Lessor are cumulative and are in addition to all other rights or remedies now or hereafter existing under this lease or at law or in equity and maybe enforced concurrently and from time to time.  Where Lessee is in default and the Lessor exercises its rights in accordance with this Clause, Lessee must pay the Lessor’s costs of collection, repossession of the Equipment and enforcement rights including legal costs…”  

It’s a pretty extensive clause.  You will notice in lease agreements the clauses are very similar and these are very, very carefully drafted by lawyers.  You will have great difficulty in going around these clauses if you are in that situation.

Let’s talk about Stipulated Loss Value and how it is defined.  “Stipulated Lost Value is, as of the date for which it is being determined; (if your breach occurs as of today) the Rental Payments and other amounts then due (whatever is due); plus the present value of all Rental Payments scheduled to become due for the rest of the Term (that’s 15 months for our example above) discounted from their due dates at 3% per annum (so some discount); plus the present value of the amount that Lessee is obliged to pay or that it may optionally pay to acquire all of the Equipment at the end of the Term, if this Lease expressly gives Lessee the obligation or option to do so…” so on and so forth.  It is very, very restrictive very, very solid clauses that you need to face.

What are the lessons you take from this lecture—that if you are in a situation where you’re leasing some equipment or car and chances are you will, then 1st of all you must carefully review and understand the lease agreement and especially the remedies clause.  2^nd, then understand clearly your rights and obligations in the event of a default.  You don’t want to be in a situation where the default has occurred and now you are looking at your lease agreement and you realize that the default clause and the clause for remedy is so strict and so harsh that you have no option and you are unable to negotiate anything with the Lessor.   A lot of people are optimistic when they are leasing any equipment (or vehicle).  They believe that they will be able to make those payments but there are all the circumstances when you are unable to fulfill your obligations.  The only way to challenge (as you may have figured out) a liquidated damages clause is by showing that the clause is a form of penalty rate which is unconscionable—it is excessive.  This is a separate topic and we will cover it in a separate lecture. 

Hopefully, this lecture gives you a sense of understanding better your lease agreement with respect to a default.  Hopefully, when you lease a vehicle next time or any other equipment, you have a better understanding and you are able to negotiate a better deal.

I thank you for watching and we look forward to seeing you in the next lecture.

Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

If you are a victim of sexual harassment, sexual misconduct or discrimination within the employment law world this lecture will provide you with some of the basic legal options that may be open to you with respect to your complaint about these issues. From my own practice, I have been dealing with sexual harassment and discrimination issues for a long time in the employment law world through the courts and through the Human Rights Tribunal. This issue has been in existence for a while but we all know that due to recent news media coverage this issue has become a more public issue and there is a larger discourse that is taking place.  In that context this lecture purely deals with some of the legal options that may be available to you if you have suffered sexual harassment, sexual misconduct or discrimination.  We begin as always with a disclaimer that this course is not legal advice.  If you have any specific questions, you should contact either a lawyer or a paralegal or contact the Law Society of Upper Canada in Ontario for referrals to a lawyer or paralegal.

What is sexual harassment/discrimination?  A lot of times it is obvious—sometimes it’s not.  It is important to explain legally what would constitute sexual misconduct, harassment or discrimination in a legal framework so you can understand that if you have suffered any of these issues (this kind of conduct), then that may amount to sexual misconduct or harassment.  I will give some of the examples to explain what could constitute sexual harassment and discrimination.

1. Asking for sex in exchange for a benefit or a favor—which is pretty straight forward.
2. Repeatedly asking for dates, and not taking “no” for an answer. We understand that as well.
3. Demanding hugs—demanding hogs depending upon the circumstances may have different connotations. As you know from the case against Albert Schultz from Soulpepper Theater, one of the allegations raised by the complainants is that he demanded hugs or he had certain hugs that the complainants felt were completely inappropriate or were sexual in nature.  That could constitute sexual misconduct or harassment. 
4. Making unnecessary physical contact including unwanted touching.
5. Using rude or insulting language or making comments towards women (or men, depending on the circumstances)
6. Calling people sex specific derogatory names.
7. Making sex-related comments about a person’s physical characteristics or actions.
8. Saying or doing something because you think a person does not conform to sex-role stereotypes.
9. Posting or sharing pornography, sexual pictures or cartoons sexually explicit graffiti, or other sexual images.
10. Making sexual jokes.
11. Bragging about one’s sexual prowess.
12. Comments: And making certain comments, for example, making comments that a woman has acquired her position in the organization because she slept her way to the top.
13. Employers could also be liable for sexual harassment for comments or conduct that took place during any business trips, company parties and functions.
14. Over scrutinizing an employee’s work or criticism in a sexual harassment context; and then
15. Comments about appearance: “you don’t look pretty today”; or sometimes addressing a woman as “young lady” in a patronizing manner; or comments like “let’s run off and get married”.

 All of these are some of the examples of conduct that will constitute sexual misconduct, harassment and discrimination.  There could be a variety of other ways in which sexual misconduct can be carried out.  This gives you a basic sense of some of the ways in which sexual misconduct and harassment or discrimination has taken place in the Canadian employment law world.

What are your legal options?  It’s important to understand that you may have a large variety of legal options available to you if you are a victim of sexual misconduct or harassment or discrimination.  To get a better understanding of what are those legal options and which legal option may be the most appropriate for you, will be a good tool to have.  Let’s talk about legislation.  Sexual misconduct, sexual harassment or discrimination is already covered under a variety of federal and provincial legislation.  I’ll give you examples of some.  The first one that comes to the top of my mind, is obviously, the Criminal Code.  There are specific sections in the Criminal Code that deal with sexual misconduct, assault and harassment.  We will talk about that later.  If you are dealing with Criminal Code legislation, then you know that it is a domain of the police (the Crown).  Once you complain to the police, the police then decides whether it’s an appropriate circumstance in which charges should be laid against the accused.  Then they take-over that matter, and the Crown is the one that prosecutes the case on behalf of the public. Canada Labor Code is another legislation which deals with federally regulated employers.  If you are an employee who works for a federally regulated company—mostly these are banks, railway and telecommunication companies which are generally federally regulated companies.  You need to know whether your employer is federally regulated or not.  If it is, then, the Canada Labor Code is the legislation that may apply in your specific circumstance.  Then we have human rights legislation.  We have the Canada Human Rights Act which, again, deals with federally regulated employers and we have the Ontario Human Rights Code that deals with provincially regulated employees (which are based in Ontario).  Other provinces have similar human rights legislation that deal with human rights issues in those provinces.  Then we have an Ontario Occupational Health and Safety Act and other provinces may have similar legislation with respect to health and safety.  If you are a unionized employee, then you have the option of bringing about a grievance under the collective agreement and there’s a separate process for that.  You launch a grievance under the collective agreement.  If you’re bringing a court action (a civil action), then you can have a tort action—a claim for a tort of harassment, a tort of assault and battery, tort of intentional infliction for causing mental pain and suffering.  There may be other torts that may also be available. These are all the legislation and the legal avenues that are open to you with respect to sexual harassment, misconduct or discrimination.  Let’s look into each one of them briefly.  We will not get into a lot of detail.  The idea is to give you an overview of these options.

Under the Criminal Code a sexual assault is defined as an assault in which the complainant’s sexual integrity is violated.  It’s a pretty broadly defined category and it all comes down to the specific circumstances of the case and the court will determine whether the complainant’s sexual integrity was indeed violated and, if it was, then it will constitute assault.  Some of the things that you want to keep in mind with respect to a criminal sexual assault is, for example, the accused does not need to have a sexual purpose.  Even if the accused did not have a sexual purpose, the conduct may itself amount to sexual assault.  Sexual gratification of the accused is also not essential for it to constitute sexual assault.  When the accused has disciplined or humiliated someone in a sexual manner, that may also constitute sexual assault. Then purported “educational” performance could also be a sexual assault, etc. Again, the example of the recent issue of Saltpepper Theater, the Albert Schultz case comes to mind in which one of the accused alleged that Schultz provided gave certain directions in their rehearsals with respect to some of the sexual conduct which they believed were inappropriate or amounted to sexual harassment—purported educational conduct may also amount to sexual assault. Part V of the Criminal Code entirely deals with sexual offenses, public morals and disorderly conduct.  You can review it to understand some of the clauses in the Criminal Code. The Criminal Code is available online you can simply google it.  Similarly Part VIII deals with offenses against the person and reputation. Then Sections 265, 271, 272, 273—also deal with sexual assault related charges.

Canada Labor Code, as I said, deals with federally regulated employers.  It has Section 247.1 which defines sexual harassment as:

 In this Division, sexual harassment means any conduct, comment, gesture or contact of a sexual nature

(a) that is likely to cause offence or humiliation to any employee; or

(b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

Any humiliating conduct common gesture or conduct of sexual nature which causes these kinds of conditions may be considered sexual harassment.  You will notice from these definitions that the definition of sexual harassment or misconduct is very broadly defined because it really depends upon the individual circumstances of the case.  You cannot really make a list of the kinds of conduct or comments or gestures and then impose that list to be the definition for sexual harassment because there are so many ways that it can be done that the Court and the judicial bodies need to have a much broader definition to deal with these kind of issues.

Human Rights Act, as I said is a federal legislation and section 3(1) deals with discrimination issues and it outlines all kinds of discrimination that is prohibited on the basis of race, national or ethnic, origin, religion and in particular sex and sexual orientation that is covered here which will be the underlying grounds to deal with any sexual harassment misconduct or sexual discrimination issues. Similarly, section 10 deals with the employment situation—for an employer not to have policies or practices for recruitment, hiring, firing, promotion and whatnot that may deprive or tend to deprive an individual or a class of individuals of any employment opportunities on a prohibited ground of discrimination.  Prohibited ground of discrimination, as we noticed earlier are, the grounds of sex and sexual orientation.  It will cover sexual harassment and sexual misconduct. Section 14(1) and (2) are also Human Rights Act discrimination clauses.  It now expands to discrimination with respect to the provision of goods, services, facilities or accommodations.  Some of the commercial transactions that may happen in public or with the general public and in those contexts if you are a victim of sexual misconduct or harassment—for a federally regulated company you will look towards the federal Human Rights Act to have that complaint against that entity or individual.

Going to the Human Rights Code—this is Ontario.   Very similar legislation in the Human Rights Code—as in the Human Rights Act. There are some differences—but generally the theme is the same, that there cannot be any discrimination on the basis of sex which covers sexual misconduct and harassment with respect to services, accommodation, contracts and employment.  It’s not just the employment context in which sexual misconduct is prohibited but also with respect to any services, accommodation and contracts.  On a large number of commercial transactions, in which you may be engaged, if you experience sexual misconduct harassment or discrimination then you may have grounds to file a complaint against the perpetrator, against the accused at the Human Rights Tribunal under the Human Rights Code.  Sexual harassment is specifically defined in section 7. Then it deals with sexual solicitation by a person in a position to confer benefits.  As we generally know from the stories that have come up, that sexual harassment (sexual solicitation) in a lot of cases is done by a person who is in some position of power over the victim.  That’s sort of the common theme.  It’s not limited to that but generally speaking that’s the theme that we notice in most of these cases. Then section 8 of the Human Rights Code specifically states that if the victim comes out and files a complaint for sexual harassment then the employer cannot—or the party cannot reprise against—cannot penalize that person for making that complaint.

Occupational Health and Safety Act is a legislation that deals with health and safety in Ontario.  In section 1(1) of this Act, workplace sexual harassment is included in all kinds of workplace harassment.  Then the Act goes on to define workplace harassment in specific terms: “engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought to reasonably be known to be unwelcome.”  It defines, again, very broadly, what could come—what could constitute workplace sexual harassment.  Then it further defines sexual solicitation and advances.  The idea is that it’s a broader definition. It can capture a variety of circumstances in which a conduct or comment can be defined as workplace sexual harassment. Within the Occupational Health and Safety Act Part III.0.1 is the entire part that deals with workplace harassment and violence.   It has all these clauses for employers: programs, policies and investigation procedures to deal with any kind of workplace harassment and violence.  It also provides a method for filing a complaint with the Ministry of Labor.  Then Ministry of Labor can send inspectors, who have significant powers.  They can investigate the complaint and they can impose on the employer to engage external third party investigators to conduct the investigation with respect to the allegations of sexual misconduct or harassment.  

Now if you’re a unionized employee, your first option could be to file a grievance pursuant to the collective agreement.  Unionized employees are part of a collective agreement.  It’s like a contract between all of the unionized employees on one side and the employer on the other side.  The ‘collective agreement’ deals with all kinds of issues, all kinds of disputes and sexual harassment being one of those issues.  You do have the opportunity to file a grievance.  Essentially, if you’re a unionized employee you go to your union steward, you file a complaint, they fill out a form that is called a grievance form and that form is submitted or served on the employer.  Then that process takes its own course.  It’s called an arbitral process.  If the parties are unable to resolve that issue, then they go to an arbitration where an arbitrator decides on the merits of the allegations.  If the victim believes that the conduct was serious enough to have criminal charges laid, then they obviously have the option to go to the police and report the incident.  They can also file a human rights complaint either with the Canadian Human Rights Commission (if it’s a federally regulated employer) or with the Human Rights Tribunal (if it’s a provincially regulated employer in Ontario).  You want to keep in mind that if you are a unionized employee you actually have a limited opportunity to go to a civil court. And you may remember or you may not the Jian Ghomeshi case.  Prior to the situation where the police (the Crown) had laid criminal charges against Mr. Ghomeshi, when the allegations against him had come forward, he had actually launched a civil case (civil claim) against his employer for defamation and some of the other allegations that he had raised.  You may know this or may not but he had to withdraw that case.  I believe he ended up paying some costs (legal costs) to the employer CBC in that case—primarily because he was part of a unionized workforce—he did not have the option to go to court and sue the employer.  His only recourse being a unionized employee was to actually file a grievance against CBC and not go to court.  I believe he ended up going to the court and then he had to withdraw the case.  If you’re a unionized employees you have to be absolutely sure what are your options with respect to a legal complaint and recourse.  Going to court may not and not in all cases but in some circumstances you may not have that option to take the employer to court.

Now civil action obviously is an option.  Civil action is a court action in a court and it could be based on a number of causes of action.  It could be a clear case of Torts: could be a tort of harassment, assault, battery, intentional infliction of mental suffering, etc.  I have a few lectures on different kind of torts that you may want to review if you want to understand the concept of a tort action a bit better.  Then you have the option of claiming a breach of statute.  Human rights statute that we have just talked about, Occupational Health and Safety Act –you can claim that the employer of that individual against whom you have a court action breached these statutes and therefore is liable to you for your claim.  Then, you may have the option of suing the employer in the civil court because the employer may have vicarious liability—may have liability for the conduct of the employee who is accused of the sexual misconduct or harassment or discrimination.  Civil action is another option. 

Now when you have all these options you obviously need to think about which option, which legal recourse is suitable to your specific circumstances.  We’ll talk about some of the things that you need to consider before you actually decide what direction you want to take to file your complaint or grievance. 1. is the internal organization remedies.  It is always a good idea if you are able to file a complaint within your own organization. If you are an employee within the structure, with the Human Resources or the superiors in your company—then that is an approach that you must take. Of course, there are circumstances in which filing a complaint internally is not practicable.  For instance, if the person that you have to file a complaint with is the person who is in fact the accused—again the example comes of Mr. Schultz.  In this case he was a Director of The Soulpepper Theater, and, I believe his spouse was also an Executive Director. Both those individuals were in the highest level of command in that organization.  It may not have been a practicable approach to file complaints against Mr. Schultz with him or a spouse.  If you work in an organization where you can easily with confidence and with some comfort file a complaint within the organization, then it’s a good idea to at least file a complaint and see if the employer or the company takes this complaint seriously and then provides remedies or takes action. 2. Second thing, you want to consider is Burden Of Proof.  It’s very important, a lot of people understand this, maybe not, that the burden of proof in criminal and civil cases is different.  We know at least from the T.V. shows that in criminal cases Crown or the prosecutor has to show beyond a reasonable doubt that the accused did in fact do what he or she is charged for.  The burden of proof is much higher. The Crown has to prove beyond reasonable doubt.  Whereas, in a civil court the burden of proof is a balance of probabilities—which means, more likely than not, it’s just a little more than 50%.  If you are the victim and you have lost a civil action against the accused, then, on a balance of probabilities your story should be more plausible (more believable) than the defendant and if you are able to do that then you are successful in your civil action.  It’s important to recognize what is the burden of proof in this case.  3.  Another component is the opportunity to examine evidence before trial and this is an important factor.  A lot of people may, or may not know this, but for instance in criminal cases the entire burden is on the Crown to produce any and all evidence to show that the accused did in fact what he or she is charged for and so the accused does not even need to testify.  The accused is not even needed to respond in terms of producing any evidence.  He or she has to respond to the questions but does not need to produce any documentary evidence to support his or her case and so the entire burden in a criminal case is on the Crown and the accused does not need to do anything.  Again, we come back to the Ghomeshi case—where we all know that at the time of trial when the complainants were cross-examined by Mr. Ghomeshi’s counsel, there was this damning e-mails, that were brought forth that Mr. Ghomeshi had kept, which the counsel produced and cross-examined the complainants of those e-mails and those e-mails were not provided to Crown because there was no legal requirement to produce that documentary evidence to crown prior to trial.  This was almost done in a theatrical manner in which the e-mails were produced and complainants were taken by surprise and in fact the Crown was taken by surprise.  In a civil system that’s not the case.  In a civil system all of the evidence that both parties—accused and the defendant/s/ complainant and the defendant / plaintiffs and the defendant—are  going to rely on a trial needs to be exchanged before-hand and in fact parties have the opportunity to ask questions which is called examination for discovery or depositions in American cases.  You have full opportunity to understand what kind of evidence will be against you and the other side will have full opportunity to understand what kind of evidence is against them.  In a civil matter the evidence is already present and then you test it out at trial.  A very different approach—different process in a criminal matter and in a civil matter. 4. You want to think about how the trial and the investigation process is conducted because trials are significantly stressful, especially if you are a victim of sexual misconduct or harassment. The trial process is hard on those victims. They have to relive the experience, their credibility is questioned and tested and whatnot.  It’s a harder process and you need to understand what kind of process you are going to go through to have your matter judicially decided and whether you are comfortable to deal with that process. That’s an important consideration.  5.  Then what kind of remedies are you seeking—what is it that you want out of this process? If you want that person to go to jail and have criminal responsibility for his or her conduct then criminal allegations, criminal charges are the way to go.  With respect to civil matters and civil actions, I think it’s important to understand that in large part a civil court is essentially going to provide a monetary remedy. Yes, there will be a recognition in the judgment that the accused was charged with or was accused of a misconduct and he or she was found guilty of it. Obviously, there is value of that judgment. At the end of the day it’s the court’s power to provide a monetary award—that is what drives the civil action predominantly.  At some point the judge will assign a certain monetary value to your suffering and then award that money to you either in the form of compensatory damages or punitive damages.  In the end that’s what it is.  If you’re looking for systemic remedies, then the court may not be the right place because systemic remedies is the domain of Human Rights Tribunal or Human Rights Commission because they have larger powers with respect to these.  They can require the employer or the company to institute policies, conduct human rights audit, go through training and whatnot.  The larger systemic remedies are generally the domain of these specialized tribunals like Human Rights Commission and Human Rights Tribunals.  It is important for you to recognise what kind of remedies may be available to you in a specific course of action and whether that’s suitable to you or not. 6.  Finally, I made the comment about no forum shopping or multiple proceeding.  Let me explain what is meant by this.  The idea behind a judicial proceeding is that you pick one avenue (one course of action) and have your legal matter adjudicated in that judicial body and then whether you’re successful or not you cannot then go to another judicial body and try to relitigate it again.  For instance, if you are a unionized employee and you filed a grievance and let’s say you were not successful in your grievance.  You don’t have that opportunity now to go to Human Rights Tribunals and file a complaint for the same or similar facts or the basic underlying story is the same—that option is not there.  That’s considered forum shopping.   You cannot pick and choose. Similarly, you cannot have multiple proceedings. You cannot file a grievance on one hand and then file a human rights complaint on the other hand or commence a court action on the third side.  You’ll have to decide at the outset which direction you want to take and then you’ll have to stick with it or you have limited opportunity to withdraw and then go to the other forum.  It is something that you have to consider at the outset. Now you can have a criminal proceeding and you can have a civil proceeding.  That is allowed.  But within the civil proceeding context, you don’t have the opportunity to have these multiple proceedings taking place.

These are some of the factors, considering your circumstances, you will have to choose. Hopefully, you will not need to rely on this lecture. Hopefully, you don’t experience any of those sexual misconduct or harassment things that we have briefly talked about.  But if you are a victim of sexual misconduct or harassment, hopefully this lecture will provide you an overview of some of the legal options that you may have.  Thank you for watching and please share your comments with us and if you’ve any questions please feel free to contact us.

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Lecture Slides:

Machine Transcription:

Welcome everyone.  This is Amer Mushtaq from YouCounsel.

When you go to court, that is, when you commence a court action you are asking the court to grant you some sort of relief—either it’s in the form of money or it could be something else.  What are the different kinds of relief that you can ask from the court?  It is important for you to understand some basic concepts so you can include those reliefs appropriately in your statement of claim.  If you don’t ask for relief, the court, generally, is not going to grant you that relief on its own.  In this lecture we will talk about those legal and equitable remedies.  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.

What is a Remedy? A Remedy is a Relief that you’re asking from the court.  As I mentioned the judge or the court will not award you a remedy if you have not asked for it.  It’s important for you to include that and also that the relief or remedy that you’re asking must be within the power of the court to grant.  This is not the topic we’re covering in this lecture but it is important for you to understand the jurisdiction of the specific court which can grant you the relief.  A common example could be that if you want the defendant / the wrongdoer to pay you, let’s say, $50,000.00 for the breach, you cannot go to small claims court and ask for that relief because small claims court has limited jurisdiction of $25,000.00.  Even if you are successful in your trial at a small claims court you will only get the relief for $25,000.00 because the judge does not even have the power to grant to you more than $25,000.00.  Similarly, if your matter is before the human rights tribunals—the human rights tribunals only has the power to deal with human rights issues—discrimination issues.  If you ask for a breach of contract remedy which is unrelated to a human rights issue from a human rights tribunals, it will not award you that relief or remedy because it does not even have the power to give you that relief.  It is important to understand both (1) what are the kinds of remedies that you can ask from a court / from a judge / from a tribunal; and (2) whether that judge / that court has the power to actually grant you that specific relief.  

There are 2 basic types of remedies: [A] one is called legal remedies; and [B] the 2nd is called equitable remedies.  We will explain what are these remedies and what are the differences between the two.  To understand their distinction we will quickly talk about a brief history of where these remedies originate from.  Few centuries ago what used to happen was that people who had a legal dispute will go to a court of law.  The court of law had set of rules or principles and they will apply those principles in those specific circumstances and will come up with a resolution.  Sometimes the application of strict, legal rules would result in harsh results/harsh resolution of the dispute.  People had no choice but to either accept it or what they will do is go and appeal to the King.  Then the King had the power to look at the fairness of the entire issue and grant certain reliefs on the basis of moral values that the king had or the society had at that time. Some rules were harsh and they will go on appeal to the king and what happened was that a lot of these cases were going to the King.  The King was busy so then assigned this duty to his Chancellor.  Then the Chancellor formed this court called Chancery or Court of Equity.  A lot of these cases will go to the Court of Equity.  This was not a court of law this was a court of equity and it’s not considered a legal resolution of the dispute.  It was based upon certain natural fairness principles (based on the moral values of the society). At that time, in the middle ages, there were courts of common law and courts of equity that were developed—providing different functions.  As I mentioned the court of equity will apply the principles of natural laws / basic fairness principles and then use their discretion in certain circumstances where the rigid application of the law will result in an unfair resolution.  Presently, all of the courts in Canada have the power to apply both law and equity.   There was an Act called the Judicature Act which allowed all courts to exercise the power to grant legal remedies and equitable remedies.  What you want to keep in mind is that the distinction between legal remedies and equitable remedies remains.  It is important for you to understand that there are 2 different kinds of remedies and the court may have the power to grant both remedies.  It is important for you to understand under what circumstances you will ask for legal remedies in your case and under what circumstances equitable relief will be appropriate.

One example that comes to my mind about where the strict application of the law will result in a harsher resolution is: Back in 2009 in the UK a person called John had intended to give his farm to another person, David, when he would pass away. He drafted /created a will in which he bequeathed / he gave his farm to David.  David had worked on this farm for 28 years so there was some understanding between the 2.  John created that will but that Will got destroyed—so the Will didn’t exist.  John passed away.  When John passed away there was no will in existence.  David had an understanding that there would be a Will that will grant him the ownership of the farm but the will was gone. Under the strict application of the law, the rules that will apply is that, that property (that farm) will now be transferred to John’s relatives (blood relatives).  There are specific rules about when someone dies intestate.  Intestate is when someone has no will and he or she passes away—then those rules will come into effect.  In the resolution or the end result of that will be that David would not get his farm.  David would apply to these courts and under these strict common law rules David would not have gotten the farm.  But the court then applied an equitable principle called equitable estoppel—we are not going to talk about that principle today.  Under that equitable remedy the court was able to grant the relief to David so that he could have the farm as a result.  This is one example of where the principles of equity will come in to assist an aggrieved party and provide a resolution which is more fair as opposed to a legal resolution which has unfair results.

Ok, so let’s talk about legal remedies.  The Court’s basic power is to award monetary compensation which is called damages. A simple example could be that if you have a car accident and have an injury or a broken leg or something the court will grant to you certain money as a result of that injury (monetary compensation is the most common way the court grants any relief).  Then there are different kinds of damages.  It is important to understand at least fundamentally that there are different kind of damages—which have different criterion—in order for you to get those damages. What are some of the common types of damages (1) first one is called Compensatory damages: Compensatory damages are called actual damages.  These damages are for an actual loss.  An example could be that you sold your car to someone far $30,000.00.  That person paid you $5000.00 as deposit, took the car away but did not pay you the remaining $25,000.00.  Your actual loss based on that contract (based on that deal) is now $25,000.00.  You go to court and ask for those compensatory damages for your loss of $25,000.00.  That’s the most common type of damages compensatory damages. (2) Then there is another kind called General damages. These are damages for non-monetary loss that arises from that breach of contract.  An example could be human rights damages—where someone claims that he or she has suffered injury to their dignity and feelings of self-worth.  These are non-monetary losses—losses are for pain, suffering and anxiety—all of these damages could be general damages. (3) Punitive damages, as the name implies, are damages which are not compensatory damages.  These damages are essentially to punish the wrongdoer (the defendant) who has done something wrong.  They act as a deterrent to the society so that others should not conduct themselves in the same manner.  Punitive damages is another form of damages. (4) Liquidated damages—it’s a reasonable estimate of the actual loss. Sometimes it will be hard to figure out the exact losses when a breach occurs.  Parties can agree to a reasonable estimate. It has to be a reasonable and fair estimate of the actual loss.  It cannot be exaggerated, cannot be excessive or it may be considered a penalty for the default.  Liquidated damages is another example. A common example is: if you are a contractor who has provided certain services, that the amount of services were agreed upon—let’s say it was a plumbing job.  You had agreed to provide plumbing services for $2000.00.  You provided those services but the other side did not pay for it. You rendered an invoice.  That will be an example of liquidated damages because the value of the actual damages or loss was set and agreed upon. Liquidated damages is another example of damages. (5) Aggravated damages: is for the aggravation of the injury.  If the conduct of the wrongdoer cause aggravation of certain injuries and these could be mental or emotional injuries or other kinds of injuries, then you can get aggravated damages for that. (6) Then there’s consequential damages which are indirect damages or incidental damages.  These are damages that are not arising from the actual breach of the contract but being affected by the wrongdoers conduct. An example from a famous case I believe Hadley vs. Baxendale—in that case a party (a manufacturing facility) required a part from a different location.  Once they had the part they will process certain orders for other clients.  These were orders in a significant amount.  They relied on a courier company to get those parts and deliver those parts in a specific time period. Once they had those parts they will be able to process those orders.  What happened was the courier company failed to deliver those parts in time.  As a result of that failure the aggrieved party then lost significant amount of money because they could not process the orders in time and suffered significant loss. This kind of loss is really the breach is simply that the courier company could not deliver the product in time.  In normal course of action if you pay $200.00 for the courier company to deliver the product and if they fail to do so, then your normal damages will be $200.00 because they failed to complete the contract.  In this situation that failure to complete the contract resulted in a $1,000,000.00 or so of losses and so those losses were incidental or indirect losses.  They are called consequential losses. In certain circumstances not in all circumstances, you can’t go around suing courier companies for all kinds of indirect incidental losses.  There is a specific criteria for you to qualify for these kind of losses.  There could be consequential losses that the court may grant as well. 

Now with respect to Equitable remedies, the most common equitable remedy is called (1) an Injunction. An injunction is essentially requiring a person to do something or stopping the person / prohibiting the person from doing something.  An example could be that a developer is clearing the land for a major development project.  There are some old trees on the property.  They will end up cutting down those trees. You believe that the developer should be stopped from cutting those trees. Then you will bring an injunction in the court and get a court order which is an equitable remedy—which will stop that developer or any other wrongdoer from doing something that they’re doing.  Similarly, if someone is not doing something, then you can bring an injunction to compel that person to do something.  Injunction is an equitable remedy that is available.   (2) Specific performance is another equitable remedy.  In this situation the court can require a person to perform a contract. For example, you purchased a small house in Toronto for $2,000,000.00.  You paid your initial deposit. You are ready and willing to complete the contract but at some point the seller decides not to complete the contract and the seller is denying you that house now.  Ordinarily, this is a breach of contract case and the court will award you damages.  In some limited circumstances the court may actually compel the seller to complete the contract that he or she has agreed upon.  That that requirement, that compelling of someone to complete the contract comes under the category of specific performance.  Again there are specific requirements for you to be able to get a relief of this kind.  It’s not generally available but the relief itself is possible under equitable remedies. (3) Constructive trust is another equitable remedy.  There are many more—constructive trust—could be where someone misappropriated your value of property.  At that time the value of property was less.  Subsequently the value of the property increased or the person who took away or misappropriated the property then sold it off to an innocent 3rd party.  You want to be able to enforce your right against that innocent 3rd party, then you can claim for a constructive trust. Under equitable remedies (4) Rescission.  An example of rescission could be that you entered into a contract which was validly entered.  You want that contract to be completely rescinded. Under the specific circumstances of your case, you can ask the court for that remedy.  (5) Rectification is another remedy in which a court may rectify a specific contract (in certain very limited ways rectify the contract) or rectify a Will in specific circumstances where the court does have power to grant this equitable remedy.   

These are sort of the basic legal and equitable remedies.  These are a few but there are many more.  It is important for you to understand. Why? Because when you commence your court action (when you prepare your statement of claim) you are describing the dispute but you must clearly set out in the statement of claim what is the relief or the remedy that you’re asking.  If it’s a monetary remedy you have to set it out—whether you’re claiming one $100,000.00 or $500,000.00.  You have to set it out in your claim and also what kind of damages.  Is it a compensatory damages claim? Is it a liquidated damages claim? Is it a punitive damages claim? Or multiple of those.  You have to clearly set it out and when you set this out you, need to provide all the necessary facts in your claim that justify the award of the remedy that you’re claiming.  For instance in the case of punitive damages, we know under the legal principles that the court will grant punitive damages only when the conduct of the wrongdoer (the defendant) was high-handed.  If it was a high-handed conduct, you have to provide those facts in your claim that explain or justify that the conduct was indeed high-handed. If the conduct occurred in the normal course of business and the conduct wasn’t high-handed and you claim punitive damages, those damages will not be awarded to you.  Aside from your story about the dispute it is important to clearly outline and specify the kind of claim of the remedies that you’re seeking and you want to make sure that whatever the factual basis is required to get those damages (to get those remedies) those are stated clearly in your statement of claim.  Hopefully, this gives you a sense of the legal and equitable remedies, their distinctions and empowers you to obtain an appropriate relief from the court.

Thank-you for watching and we’ll look forward to seeing you in the next lecture.