Weeks 3 & 4 Starting an a ction

Weeks 3 & 4Starting an action UBC LAW 469.003 Civil Procedure: Cameron/Fancourt-Smith DM #3237335:v2

Overview • Guide to reading and interpreting rules • Starting a proceeding • Basic action: start of proceeding • Choice of procedure? Notice of Civil Claim or Petition? • Service • Default Judgment • Pre-proceeding considerations • Jurisdiction? • Limitation Periods? • Ethics of starting a proceeding

Powers of the court • Inherent Jurisdiction: quasi-magic concept: Masters have no inherent jurisdiction • Default rule: Superior Courts possess the power to decide on an issue before it unless that power has been taken away • In contrast: some courts can only exercise only those specific powers conferred by statute • Masters • Provincial Courts • Court of Appeal • Federal Court (only shipping, tax, I.P., immigration, etc., as set by statute)

Chambers appeals • Levels of appeal • Master  BCSC Judge  BCCA  SCC • Procedural matter can also be heard by a BCSC judge, but doing so eliminates one level of appeal • Stare decisis - Master bound by decisions of BCSC

Making mistakes • Small mistakes can be detrimental to a case, for both the outcome and in terms of costs • Good news: • Rule 1-3: Object of the Rules : The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits

Mistakes can be fixed • Rule 22-7(1): Non-compliance with Rules (1) Unless the court otherwise orders, a failure to comply with these Supreme Court Civil Rules must be treated as an irregularity and does not nullify (a) a proceeding, (b) a step taken in the proceeding, or (c) any document or order made in the proceeding. • Rule 22-7(3): Proceeding must not be set aside for incorrect originating pleading (3) The court must not wholly set aside a proceeding on the ground that the proceeding was required to be started by an originating pleading other than the one employed.

But cannot fix when prejudicial Rule 22-7(4): Application to set aside for irregularity (4) An application for an order under subrule (2) (a), (b) or (d) must not be granted unless the application is made (a) within a reasonable time, and (b) before the applicant has taken a fresh step after knowledge of the irregularity.

Overview of action • Notice of Civil Claim • Facts • Relief • Legal Basis • Response: within 21 days • Admit • Deny • Facts cannot be admitted as outside knowledge • Relief: consent, appeal • Legal basis • List of Documents • No demand needed: automatically due after 35 days • Examinations for discovery • Other interlocutory battles • Trial / hearing

Choice of procedure Action Petition

Choice of procedure

Petition • Oddity; less common • Seek quick specific relief from court • Usual relief: declaration or permission • Assumed not to have disputed facts • No cross-examination in court of fact discovery • Can convert into action, and have trial, or order discovery

When to bring a petition • No grand unifying theme for what matters are to be brought by petition, except that traditionally viewed to be potentially resolved at single summary hearing • Rule 2-1(2)  main categories of petition • 2-1(2)(a): applicant: only interest part: quintessential petition • 2-1(2)(b): authorized to by made by statute • 2-1(2)(c ): interpretation of a document • 2-1(2)(d): guidance or declaration from Court as to proper administration of estate • 2-1(2)(e): guidance or permission re child or disabled person • 2-1(2)(h): declaration re solicitor-client privilege • 3(c): money into or out of court sought: e.g. interpleader: R10-3

Petition authorized to be made by statute • Rule 2-1(2)(b): Commencing proceedings by petition or requisition the proceeding is brought in respect of an application that is authorized by an enactment to be made to the court • Examples from statutes • Declaration as to priority: Personal Property Security Act • Bankruptcy • Foreclosure • Companies’ Creditors Arrangement Act • Common: Court Order Enforcement Act register arbitration or judgment

Combined relief • What if you seek combined relief? Some petition relief some damages relief • Practical approach: start action, seek declaratory relief even though statue has “may apply” language, and in theory, the relief must be sought by a petition • Better and technically accurate (Leung): start two proceedings: NCC and Petition • e.g. oppression remedy and wrongful dismissal

Combined relief • If you make an error, and bring a writ instead of a petition, the court can permit it to continue • Leung • Leung: plaintiff has a debt; damages and breach of trust claim, throw in an oppression remedy claim under the (old) Company Act • Rule 1-3: “just, speedy, and inexpensive” • Plaintiffs technically in error: successful, but denied costs of application because they caused the problem

Petition (Tab A)

Notice of civil claim • Facts • concise statement of facts asserted by plaintiff • Relief Sought • damages, injunction, etc. • Legal basis • rules and legal principles relied on • not generally cases

Notice of Civil Claim

Formerly: Writ and Statement of Claim • Writ only required a short endorsement: “a concise statement of the nature of the claim made and the relief required in the action” • Why use endorsement? • Pressed for time • Other side won’t respond or will cave? • Don’t have full facts: don’t want to misstate • Possible return of Writ?

Formerly: Writ and Statement of Claim

Formerly: Writ and Statement of Claim Order of Filings Post-Writ • Appearance • Statement of Claim • Statement of Defence

Renewal of claim – Rule 3-2 • Rule 3-2(1): Can sit on NOCC for one year after filed, until renewal is needed. • NB: filing versus service • Can apply to renew before expiry of year limit • Test for whether or not to allow renewal: What is just? • Prejudice to other side by delay is presumed • Rule 3-2(2): Further renewal of notice of civil claim • may only renew once and not more than 12 more months • Application brought ex parte: without notice • And thus must be full and frank in disclosing to the court all facts relevant to judge’s decision whether to renew • For example, expiry of limitation period

Ethical issues starting a claim • You are an officer of the court  you owe duties to your client, but alsoowe duties to the court • Cannot commence frivolous lawsuits • i.e.: lawsuits with no basis, or no possible chance of success. • Do not need to think you will succeed: you are permitted to start an action that will likely fail • Distinction: case that you have all the facts and law and that clearly will fail versus a case where you anticipate obtaining evidence through discovery • Must be reasonable probability of success • Good faith test • Should not act as judge of client’s case

Ethical issues starting a claim • Cannot deceive court • Wise to conduct some due-diligence, cross examine clients, do internet research • Often practical concerns (costs, etc…) allow you to avoid ultimate issue of whether or not a suit is frivolous • Retainer can flush out frivolous claims • Give a very clear litigation budget • Give a realistic range of damage awards • Blunt talk on exposure to costs award if they lose

Best practices • Always practice in a manner that allows you to hold your head high: • Honourable to prosecute or defend a difficult claim • But you will get a reputation among courts and lawyers if you regularly prosecute or defend frivolous or baseless claims

Service of process • After filing, it is fundamental and crucial that that the rules regarding service are followed • “Personal Service”vs. “Ordinary Service” • Personal service (Rule 4-3) on person:must be used at start of proceeding, to ensure notice • Thereafter, Ordinary Service (Rule 4-2) acceptable, with some exceptions • Ordinary Service: delivery to address, email or fax machine

Personal service • Special procedures for personal service on certain kinds of defendants if there is any risk of quibbling • Rule 4-3: Personal Service • Rule 4-3(2): person; corporation • Registered office (usually law firm) • Perform company search and deliver to that office • Rule 4-3(4)(b): city: mayor or clerk • Rule 4-3(2)(c): union, unincorporated: officer • Rule 4-3(2)(d): infant: parent or guardian or if orphan, then Public Trustee (Infants Act) • Rule 4-3(2)(e): mentally incompetent person: committee /Public Trustee • Rule 4-3(6): Attorney General: solicitor on staff of Attorney General in Victoria

Service: Practical issues • Practical: process server will do service • Hand to defendant and get signature • Avoid carrying out the service yourselfunless its absolutely necessary • If you know solicitor for the defendant, the usual courtesy is to call and ask if they will accept service

Orazio v. Ciulla • Facts • Separate law firms sharing one law office for a litigator (counsel for the Plaintiff) and a solicitor who represented the Defendant client for business law • After writ issued but before being served, the solicitor helped the Plaintiff in negotiations concerning an auto claim versus the Defendant • The Defendant in the auto claim came to the office to see the Solicitor and glanced at the Writ • Valid service? • Yes. • Ratio • Not necessary to ensure that the document actually remains in defendant’s possession at the end of the exchange

Test for service • Deliver claim/petition to person • Inform the person what the document is such that he or she knows or ought to know what document is.

Service: ethical Issues • Very careful: special costs/ judicial condemnation • Can you serve anywhere? At a mosque? At a wedding? • Serving in an inappropriate location can: • Harm your reputation in court • Harm the case, by making it more difficult to settle

Alternative Service • Rule 4-4 – Alternative Service • What if you cannot find the defendant or s/he keeps escaping? • Must prove: • Impracticable: “not capable of being done usefully, or at too great a cost” or • Person cannot be found after diligent search or • Person is evading service • Process server prepares the affidavit but lawyer bears responsibility for omissions • Application is done ex parte but may be challenged later at a rehearing

Luu v. Wang • Rare successful application to set aside alternative service order • Luu: obtained ex parte application to serve defendant who was ordinarily a resident in China • Order was liberally granted but affidavit did not provide adequate evidence of impracticable (unreasonable to serve personally, given all reasonable efforts)  set aside

Foreign Service Rule 4-5(10): Manner of service abroad (10) A document may be served outside British Columbia (a) in a manner provided by these Supreme Court Civil Rules for service in British Columbia, (b) in a manner provided by the law of the place where service is made if, by that manner of service, the document could reasonably be expected to come to the notice of the person to be served, or (c) in a state that is a contracting state under the Convention, in a manner provided by or permitted under the Convention.

Foreign Service • Problems with Rule 4-5 • Blindly following 4-5(10) may lead to an unenforceable judgment in defendant’s home jurisdiction • Recent Canadian decisions are not recognizing ‘maverick’ personal service that ignore foreign requirements as valid forms of service

Foreign Service 14th Hague Convention: 1965 • Canada signed in 1988 • For “non-objecting states”: personal service is valid. Includes the U.S. and the U.K. • “objecting states”: object to personal service altogether • Central Authority arranges for service • Issue: could run out of time on a limitation period waiting for service to occur

Weeks 3 & 4 Starting an a ction