Thursday, 27 October 2011

Practice Point: Filing a Notice of Civil Claim further to a Writ

Consider the following situation.

Shortly before the new Rules came into effect, you filed an endorsed Writ.  Over a year later, the defendant filed an Appearance and the Registry accepted it.  Under R. 24-1(3), the Writ is deemed to be a Notice of Civil Claim and under R. 24-1(6), the Appearance is deemed to be a Response to Civil Claim.  However, you now want to file a proper pleading to set out your case, and are faced with a dilemma: how do you file a Notice of Civil Claim without wasting your one freebie amendment under R. 6-1(1)(a).

Rules 24-1(11) & (12) provide that a party must amend its pleadings to accord with the new Rules on demand.  This amendment does not count for the purpose of R. 6-1(1)(a).  However, R. 24-1 does not expressly allow a party to voluntarily amend its pleadings to comply with the new Rules without wasting the freebie.

Several possible solutions come to mind: (i) asking the opposing counsel to issue a demand; (ii) asking the opposing counsel to consent to the amendment under R. 6-1(1)(b); or (iii) issuing a demand under R. 24-1(11) and hoping that the other side will fire back with the same demand.

As it turns out, the answer is much simpler and does not require co-operation the opposing counsel:  the Registry will accept a Notice of Civil Claim (and likely a Response to Civil Claim) with the following header:
Amended pursuant to R. 24-1.
Writ of Summons filed ______.
They will accept this even if no demand under R. 24-1(11) was made by the other party.

So, if you find yourself in the above situation, don't waste your freebie!

Wednesday, 19 October 2011

SCC: Linking to Defamatory Material is NOT Publication

The SCC today released a long awaited (at least by some) decision on defamation by way of hyperlinking to defamatory material, scoring another point for common sense.  Mr. Crookes alleged that Mr. Newton had defamed him by including in an article he published on his own website several links to websites that contained defamatory materials.  Mr. Crookes lost at trial and on appeal, as courts found that Mr. Newton did not in fact "publish" this defamatory information by merely linking to it.  A few years ago I wrote about this subject here.

The SCC dismissed the appeal, with Justice Abella writing majority reasons and holding that linking to defamatory materials will not constitute publication, unless the manner of linking is defamatory in itself. 
Justices McLachlin and Fish concurred in the result, but held that endorsement of a hyperlink may constitute adoption of the linked content and thus defamation.  Justice Deschamps also concurred in the result, but disagreed with a blanket immunity for hyperlinks, preferring instead a fully contextual approach of whether each particular hyperlink meets the test of publication.

More below.

Tuesday, 18 October 2011

Renewal of Pleadings: Notice to Insurer may be Notice to the Defendant

The rules for the exercise of the court's discretion to  renew a writ or a Notice of Civil Claim under R. 3-2, are well known. For example, see Mackie v. McFayden, 2010 BCSC 399.  One of the factors that the court considers is whether the defendant had notice of the claim before the time for service expired.

In Ruskey v. Haggerty, 2011 BCSC 1387, the plaintiff was not able to locate the defendant driver, but did serve the Writ on ICBC, who, "from the earliest days ...  took an interest in the case, dealt with the plaintiff, and subsequently dealt with counsel with respect to this claim. "  Moreover, ICBC appeared, as agent for the defendant, to oppose an application to renew the writ.  Although being careful not to establish any general rules, McEwen J. found that, in these circumstances, notice to the defendant of the claim was established via notice to ICBC:

Wednesday, 12 October 2011

Special Costs: Remedy for a SLAPP lawsuit

In a quite strongly worded judgment, Madam Justice Bruce confirmed in Scory v. Krannitz, 2011 BCSC 1344, that special costs are a proper remedy for SLAPP (strategic lawsuits against public participation) lawsuits, civil actions to stop opposition to a municipal zoning or permit application, and actions which "interfere with the democratic process."  In making her decision, she also took into account the impact of the lawsuit, which "effectively silenced the respondents’ participation in the Township’s decision on the landfill application and on all future applications that may have an impact on the local environment" and the fact the respondents did not have deep pockets and could not "risk becoming involved in another expensive and time-consuming lawsuit based solely on their lawful participation in government decision-making."

Ultimately, she ordered special costs and double costs on Scale B from date of offers to settle without costs.  The successful litigants were given a choice of taking either special costs or double costs, whichever were higher.

BCCA: Admission of Court Records and Res Judicata

The decision in Petrelli v. Lindell Beach Holiday Resort Ltd., 2011 BCCA 367, came out in early September, but I believe deserves a very honourable mention even more than a month after the fact.

Purchasers of a "holiday home" in the defendant's trailer park were successful in their suit to rescind the contract on the basis that municipal bylaws prohibited the use of the trailer park for holiday homes.  Their friends, the plaintiffs, then also brought an action for the same relief.  This time, the defendants raised new defences, which the defendants sought to strike on the basis of res judicata.  Overturning the chambers judge's ruling, the court of appeal allowed the action to proceed on the basis that the same defences were not raised in the first action, and the precondition of mutuality was not met.

In the course of this rather compact judgment (only 88 paragraphs), Groberman J.A. addressed and conveniently summarized a number of important issues regarding admissibility of court records from other proceedings, issue estoppel, cause of action estoppel, and abuse of process.

Monday, 10 October 2011

Costs Against Counsel: A Problem of Privilege

A lawyer's duty to provide "zealous representation" is circumscribed by professional and ethical obligations.  A failure to achieve a balance between the two may result in disciplinary proceedings or an award of costs against lawyer personally under R. 14-1(33).

One situation where a court may award costs against a lawyer personally is where the lawyer goes off "on a frolic of his own" and effectively "highjacks" the client's action.  The threshold for success on such an application is particularly high because, in most cases, it will be difficult to prove this without breaching solicitor client privilege, which the courts are loath to do.  Indeed, this was the case in Jampolsky v. Shattler, 2010 BCSC 408, a decision of Justice Greyell.  In that case, although Justice Greyell expressed a severe disapproval of the plaintiff's lawyer's actions in bringing contempt proceedings against defence counsel (which proceedings he found to be an abuse of process), he also found that he simply could not conclude that in doing so the lawyer went off on a frolic of his own without intruding on solicitor client privilege, which he refused to do.  He ordered special costs against the client, but not the lawyer personally.

Emboldened by his success, the lawyer brought an application for special costs, arguing that the application for costs against him personally was brought recklessly and without an evidentiary foundation.

Wednesday, 5 October 2011

When an Admission in a Pleading is not Binding

On the one hand, pleadings frame and guide an action. On the other hand, as demonstrated by the decision in Rana v. Nagra, 2011 BCCA 392, one should not rely too much on the admissions contained therein.

In this case, the plaintiff pled that parties entered into a share purchase agreement and the defendant admitted that fact, and did not plead that the agreement was uncertain. Nevertheless, the trial judge held that the agreement was not binding on the defendant. The Court of Appeal agreed with the trial judge and held that this was not an admission that could not be withdrawn by consent or with leave of the court. Rather, this was merely an admission of fact of entering into the contract, not of the legal effect of this fact:

[16] … However, the issue of whether the agreement was binding was a question of law. The admission by the Nagras of the fact that they had entered into the agreement did not constitute an admission by them of the legal effect of entering into the agreement and, in particular, it did not constitute an admission of the question of law that the agreement was binding. In my opinion, therefore, the admission made by the Nagras did not preclude them from taking the position that the agreement was not binding at law.

Tuesday, 4 October 2011

One Standard of Review for Ex Parte Injunctions

I confess that I like short and simple cases, concisely dealing with a discrete point and thus serving as an excellent precedent without felling a forest in the process.  The decision of Justice Hinkson in Ma v. Nutriview Systems Inc. (Court of Appeal Chambers) is one such decision dealing with the standard of review for ex parte injunctions.

The appellant in this case obtained an ex parte injunction that was later set aside by another judge.  Because the original judge was not available, the second hearing proceeded as a hearing de novo.  The appellant appealed this decision, arguing that a review by a hearing de novo was only for Mareva injunctions, and other types of ex parte injunctions were reviewed on the standard of "whether the judge granting the initial order failed to exercise his or her discretion in a judicially acceptable manner."

Justice Hinkson unequivocally disagreed with this proposition, finding that standard of review for all ex parte injunctions is the same, as follows:

Sunday, 2 October 2011

Substitutional Service

Thank you to Mr. Justice Burnyeat for providing a good summary of rules and principles regarding substitutional service in Luu v. WangThe key point to take from this (I think) is that mere convenience is not enough.

BCSC: No Right to Second Discovery Under R. 7-2(2)

Rule 7-2(2) provides that, subject to parties' consent or a court order, “the examinations for discovery” are not to exceed 7 hours.  

In Humphrey v. McDonald, 2011 BCSC 1288, Madam Justice Gray explained that this does not mean that a party is entitled to conduct more than one discovery as long as the total length does not exceed 7 hours:

[9]             In my view, the use of the plural “examinations for discovery” has to be read in the context of the entire sub-rule. It makes reference to examinations under other sub-rules, which relate to re-examination in subsection (17), in subsection (22) to informing himself or herself and it being adjourned for that purpose, and subsection (24) continuing an examination for discovery following receiving a letter.
[10]         In my view, the sub-rule does not suggest that there should be more than one examination for discovery of a party. A party should be able to know whether they are finished with examinations for discovery or whether more are pending.

No loopholes here.