Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank-you for watching.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank-you.