Show Notes:

Rules of Civil Procedure:

https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/

Court of Justice Act:

https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/

Practice Direction Toronto:

http://www.ontariocourts.ca/scj/practice/practice-directions/toronto/

Lecture Slides:

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Machine Transcription:

Welcome every one this is Amer Mushtaq from You Counsel. Today we’ll talk about Rules of Civil Procedure in Ontario Courts. And this lecture is really for the beginners who have no idea what these rules are, what is their purpose, where to find them, what to do with them, so we’ll cover those basic topics in this lecture.

Before we begin, just a disclaimer, that this course is not legal advice, so, if you have any specific questions please contact your lawyer or paralegal.

Procedural rules, that’s what they are. So, we’ll talk about what is their purpose how many categories of rules are out there, how do you find these rules, where they are, and then what is this beast called Practice Directions? Are they additional rules and what do you do with them where to find them?

There is a basic purpose of the Rules of Civil Procedure and that is to ensure that the process of a court action is fair. And, so what I mean by that is when you begin your court action, a claim against somebody, or you’re defending a claim that is issued by someone else against you, that matter at some point will eventually go to trial, the matter will be heard before a judge, and the judge will decide which party is right and which party is wrong. And it is important to ensure that by the time the matter is before the judge, a trial, all of the steps that have been taken by parties are leading to a fair process, so, that no side is unduly advantaged by any way or by any technicality to get to that. Because if the process itself is unfair, then it will be hard for a party to get a fair trial. So, this is all about process and these are codified in rules.

Let me give you an example of that, so, let’s say you commence a court action against a party, so, the process is you draft what’s called a Statement of Claim, you go to the court office, you pay the fees, the court fees, and then the court staff or the registrar will stamp that that claim and then assign a court file number and then issue it and sign it. So, that’s now a document in court records that indicates that there is a claim that has been issued by a party against certain parties or a party. Now, for a defendant who has to respond to that claim, he needs to have clear knowledge that a claim has been issued against him or her right, and so, how does the court ensures that that person will actually receive the documents … there is a whole process. There are rules that dictate how you can serve that claim. So, for instance, you know, if you put that claim in the mail at the last known address of that person, you know the address you put it in mail and you send it out and that person does not receive it and you go to the judge and say I have served the claim, I sent it by mail, if the person is not defending, I want you to grant me the judgment because that defendant is not here, right? And so, that may not be a fair process because there is no way to confirm or verify that the person actually received that particular claim. So, to ensure that the rules provide specific ways of how that claim can be served, so, that sort of an example of the claim which ensures that that person is actually received it and if at that point that person decides not to defend it then the court can proceed with awarding a judgment against that person.

So, those kind of processes and there are a large number of those processes related to claims and defense and how you serve them, how many days do you have to respond to it, and you know how do you do the examinations for discovery, how do you set matters down for trial? So, I’ll kind of review that briefly, so that I show you what kinds of rules are out there in the Rules of Civil Procedure but this is the basic purpose of these rules to ensure that there is fairness in the process.

Now, there are different categories of rules and so it’s not like you pick up one book and it says Rules of the Court and that’s all you have to abide by or you have to understand, unfortunately not. So, just to give you an example Rules of Civil Procedure in Ontario, which is what we’re going to talk about today briefly that’s one category of rules. Federal Court has its own set of rules and so, which may be different, which actually are different than Rules of Civil Procedure. Then Criminal Courts have their own rules. Small Claims Court has its own rules and they’re called Rules of Small Claims Court. Human Rights Tribunal has its own rule, so, depending upon which body, which court, which judicial body you are attending before, they may have their separate rules and so, you need to make sure ‘A’, you find what those rules are and then you understand them, you read them, and you comply with them. So, all these categories are there and then each province has its own rules … we’re talking about Ontario today and then Alberta would have its own Rules of Civil Procedure and British Columbia would have its own Rules of Civil Procedure, so, you need to understand those rules.

Okay, so focusing on Ontario Rules of Civil Procedure you know we’re going to talk about where to find them, what is this thing called Course of Justice Act, and what are the regulations, and we’ll just sort of briefly overview the rules.

So let’s go to Google and you type in, so you are at Google, and you have no idea where to find these rules so you type in the Rules of Civil Procedure, it’s already here. CanLii is this website that provides free statutes of the entire Canada, so, you can find all the statutes and regulations in there. So, let’s click OK. You go to CanLii’s website and then it will take you there. So, Rules of Civil Procedure RRO 1990, Regulation 194, I’ll come back to it to what that means, but these are the rules and you see there’s a table of content. The important point that I want to make, not really important for the purposes of you knowing these rules, but these Rules of Civil Procedure are essentially a regulation under a statute called Courts of Justice Act and I’ll show you in a minute what Courts of Justice Act is. But these are regulations made under the specific statute for your purposes for practical purposes, whether it’s Courts of Justice or whether it’s regulation, there all rules, so, they all are equally applicable and so you just need to understand that. Let’s look at the table of contents and I was talking to you about what kinds of things that the rules deals with, there’s General Matters, Parties and Joinder, so what are different kinds of parties and in a court proceeding it talks about that in these rules. Commencement of a Proceeding, a Proceeding is a court action or an application that you commence in court and that’s called a Proceeding. So, you know, how do you commence that Proceeding? Here I’m talking about Service, so, service has three rules how do you serve something, what are the timeframes and what not? It’s defined in these rules, if there’s no trial, how do you end a Matter or Disposition without trial? Pleadings, Pleadings are the court documents like claim and defense and reply and what not so, it defines what Pleadings are. Then Discovery, Examinations how these Examinations are conducted out of court. All of these rules are there, they’re fairly comprehensive they pretty much cover every single thing that you may have to deal with in a civil court and there is some rule regarding that, so you can you can find that out.

Let’s look into Service. Service of Documents I was talking to you about the Service of Statement of Claim, I was giving you an example. So here’s 16.01, Sub 1 Originating Process. Originating Process is like a claim or Notice of Application it’s defined in the rules you can find that. But an Originating Process shall be served personally as provided in rule 16.02 or by an alternative to personal service as provided in Rule 16.03. So, the rule is specifically saying that when you have a Statement of Claim, you have to serve it personally and then what does that “personally” means that’s defined in rule 16.02 or it could be served by alternative to personal service as in Rule 16.03 right? So, you go down to16.02 and it says Personal Service and then it goes on to define what a Personal Service. So, this is this is sort of a flavor of what these rules are and we will in further lectures, sort of pick on each rule and we’ll talk about it briefly so you get an understanding of what these rules are.

I talked about Courts of Justice Act; so, let’s quickly look at Courts of Justice Act as you go back to Google and you type in the Courts of Justice Act. Again, if you want to go on CanLii. There are different sources where you can find these rules, but CanLii is sort of what I try to use most. Primarily, because I like the table of contents, some of the websites don’t have table of contents and that makes it easier for you to review these websites through a table of contents.

So a Courts of Justice Act is a larger Act that deals with the Administration of Justice in Ontario and it talks about what kinds of courts are in Ontario, what is the Court of Appeal, administration of the courts how they are administered, appointment of judges and officers, court proceedings, so, all of these things are in the statute and if you notice this Part 4 talks about Rules of Court and this is where the Rules of Civil Procedure come in, there are specific sections in the statute that allows for the creation of Rules of Civil Procedure. Just quickly, look at courts of Ontario, so, we’ll see how many kinds of courts of there. Superior Court of Justice, Divisional Court, Family Court, Small Claims Court, Ontario Courts of Justice. They’re all these kind of courts and then Court of Appeal Ontario. So, all these kind of courts have specific purposes and you need to know which court your matter belongs to, you have to go to that court to that province, to that territory, to that municipality, to that region and then commence your court action in that regard. So that’s where that’s the process of finding them and I gave you an overview of these rules but by all means explore these rules look at them and find more about that.

So what on earth is Practice Direction? What are these, what is their purpose and where to find them? So, just so you know if it was not enough that the rules are so complicated they are for different provinces and then for different courts there are different rules. To make matters a bit more complicated, we have something called Practice Direction, so what is a Practice Direction? Practice Directions are issued by at least in Ontario, by a different Regional Court. So, there’s a Region of Toronto, there’s a Region of Peel and each region administers its courts differently.

And so, what happens why do we need Practice Directions? Because sometimes the Regional Courts requires certain tailoring of the larger Rules of Civil Procedure based upon, you know, how busy the courts are, based upon their system and what not, so they may have slightly different systems. So, based upon which region your case belongs to, you will have to look at the Practice Directions of that particular court which are in other words additional rules that the courts have provided and you have to follow them. So, you want to make sure that you understand the Rules of Civil Procedure and then you have understand the Relevant Practice Directions because those are really the one that may modify certain rules or explain certain rules or put additional rules and you need to follow those rules. So, that’s the purpose of Practice Directions and where to find them we go back to our friend Google. And let’s say you type in, “Practice Directions” you see here Practice Directions Ontario and there are other Practice Directions, you see Brampton, Court of Appeals, Newmarket you already see those options there, so, let’s look at Practice Directions Ontario. And you find this link OntarioCourts.CA this is I believe a government website for the courts, slash Superior Court of Justice slash Practice slash Practice Directions. So you click on that he link and then it has multiple things, Practice Directions, Notices and Guides, and you review those. So, let’s say you want to go to the Practice Direction you have brought a Civil Action or an Application or a Motion you want to make sure that you click on it and then you read all these rules and they’ll talk about different matters. Rules applicable to all Motions and Application if you are bringing a motion, you must read Practice Direction and understand what the rules are saying. So, this is what they are and you need to, now, you know where to find them, and you must read these rules and understand them. So, you need to know if you have a civil matter in Ontario then you need to sort of, read the Rules of Civil Procedure Ontario and then read up on Practice Directions.

So, in summary read the rules, understand them, and follow these rules because they are essential if you don’t comply with these rules there will be consequences and a lot of times could be negative consequences, serious consequences, so, you need to understand that. Regarding the last point follow the rules I just want to tell you sort of something from my own experience. When I became a lawyer many years ago and we were getting this lecture from a senior litigator, he was talking about the Rules of Civil Procedure and he posed as his question: what are these rules? And you know some smart ass lawyer said, “these are the Ontario rules and these are for the fairness of process” and he was like “okay, so what do you do with these rules” and the he had replied, “that you must understand these rules and follow these rules so that the process is fair”. And that’s where that senior lawyer interjected and said wrong answer, he said, “you want to understand these rules fairly well, but when you realize that the rules are not favorable to your client you need to learn how to go around them”. And that was an interesting comment. So it’s not that you break the rules, it’s not that you don’t follow them but if the if a specific rule is not in favor of your client, then you figure out how do you go around that rule to further your client’s interest. So, that’s an you know fortunately or unfortunately depending upon how you view the purpose of legal profession, but if you believe that the lawyers fundamental role is to advance his or client’s interest, then that sort of where you get these kind of interpretations of rules, which may be twisted bent in different ways and what not. So, something to keep in mind because whether you follow the rules appropriately, the other side may try to bend them and you need to be alert to these things.

Hopefully, this was helpful in terms of understanding some basic concepts about Rules of Civil Procedure, what we’ll try to do in the ensuing lectures is that we’ll try to pick up on some of the important rules. We’ll talk about it, what do they say, how do you understand it because there are these are sort of fairly complex rules unfortunately, not easily, not designed for everyday people in mind and so, we’ll talk about this in more detail and basically make it sort of a fair game, make it simpler for you to understand these rules.

So any comments, please write us, send us an e-mail, post your comments, like us on YouTube and we look forward to seeing you in the next lecture … thank you for watching.