Evidence in Small Claims Court FOR PARALEGALS€¦ · TAB 7a Statement of Principles on Self...

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Jacqueline Beckles Department of Justice Canada

June 5, 2017

Evidence in Small Claims Court FOR PARALEGALS

*CLE17-0060101-A-PUB*

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DISCLAIMER: This work appears as part of The Law Society of Upper Canada’s initiatives in Continuing Professional Development (CPD). It provides information and various opinions to help legal professionals maintain and enhance their competence. It does not, however, represent or embody any official position of, or statement by, the Society, except where specifically indicated; nor does it attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein should be used prudently, as nothing in the work relieves readers of their responsibility to assess the material in light of their own professional experience. No warranty is made with regards to this work. The Society can accept no responsibility for any errors or omissions, and expressly disclaims any such responsibility.

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Library and Archives Canada Cataloguing in Publication

Evidence in Small Claims Court for Paralegals

ISBN 978-1-77094-789-4 (Hardcopy)ISBN 978-1-77094-790-0 (PDF)

1

Chair: Jacqueline Beckles, Department of Justice Canada

June 5, 2017

1:00 p.m. to 4:00 p.m. CPD Hours = 2 h 30 m Substantive + 30 m Professionalism

The Law Society of Upper Canada

130 Queen Street West Toronto, ON

SKU CLE17-00601

Agenda

1:00 p.m.- 1:10 p.m. Welcome and Opening Remarks

Jacqueline Beckles Department of Justice Canada

1:10 p.m. - 1:25 p.m. Review of the Rules and Policies in Small Claims Court

Miray Cheskes-Granovsky, Deputy Judge and General Counsel, Atlantic Coast Papers

EVIDENCE IN SMALL CLAIMS COURT FOR

PARALEGALS

2

1:25 p.m. -1:40 p.m. Proper Preparation of Witness Statements and

Affidavits for Small Claims Court Actions

Fredrick Goodman Fredrick Goodman Paralegal

1:40 p.m. - 1:55 p.m. Types of Evidence that are Admissible

Tracey McGoey, Senior Paralegal Department of Justice Civil Litigation

1:55 p.m. - 2:00 p.m. Question and Answer Period 2:00 p.m. -2:15 p.m. Networking and Coffee Break

2:15 p.m. - 2:35 p.m. Best Practices for Adducing Evidence from Your Own Witness

Jacqueline King, C.S., Shibley Righton LLP

2:35 p.m. - 2:55 p.m. Cross Examination Tactics

Asfrah Syed-Emond Syed-Emond Lawyers 2:55 p.m. - 3:15 p.m. Demonstrative Evidence

William Keele, McLeish Orlando LLP Jenny Freitas, Law Clerk McLeish Orlando LLP

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3:15 p.m. - 3:45 p.m. Ethical Issues and Evidence

Moderator: Jacqueline Beckles Department of Justice Canada

Panellists: Miray Cheskes-Granovsky, Deputy Judge and General Counsel, Atlantic Coast Papers Fredrick Goodman

Fredrick Goodman Paralegal

William Keele, McLeish Orlando LLP

Jacqueline King, C.S., Shibley Righton LLP 3:45 p.m.- 4:00 p.m. Question and Answer Session 4:00 p.m. Program Ends

June 5, 2017 SKU CLE17-00601

Table of Contents

FACT PATTERN …………………………………………………………………… 1 Page TAB 1 Evidence in the Small Claims Court …………………………….. 1 -1 to 1 - 18

Miray Cheskes-Granovsky, Deputy Judge and General Counsel, Atlantic Coast Papers

TAB 2 Proper Preparation of Witness Statements and Affidavits for

Small Claims Court Actions – PowerPoint ……………………… 2 - 1 to 2 - 34

VFC, Inc. v. Balchand 2-51 to 2-60 ……………………………….. 2 -35 to 2- 44

R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57 (Excerpts) 2-61 to 2-64 …………………………………………………. 2 -45 to 2- 48 Fredrick Goodman

Fredrick Goodman Paralegal TAB 3 Types of Evidence that are Admissible – PowerPoint …….. 3 - 1 to 3 - 20


EVIDENCE IN SMALL CLAIMS COURT

FOR PARALEGALS

TAB 4 Best Practices for Adducing Evidence from

Your Own Witness ……………………………………………………….. 4 - 1 to 4 - 9 PowerPoint ……………………………………………………………………. 4-10 to 4-22


TAB 5 Cross Examination Tactics …………………………………………………. 5 - 1 to 5 - 7

Asfrah Syed-Emond Syed-Emond Lawyers

TAB 6 Effective Use of Demonstrative Evidence in Small

Claims Court Trials ……………………………………………………….. 6 - 1 to 6 - 13


Jenny Freitas, Law Clerk McLeish Orlando LLP

TAB 7 Principles of Professionalism for Advocates ………………………….. 7 - 1 to 7 - 18 (Reproduced with Permission by The Advocates’ Society)

TAB 7a Statement of Principles on Self-Represented Litigants and

Accused Persons - Adopted by the Canadian Judicial Counsel September 2016 (Reproduced with Permission) ……………………. 7a - 1 to 7a - 11

TAB 7b Dealing with the Difficult Client …………………………………………….. 7b - 1 to 7b - 14 (Reproduced with Permission)

The Honourable Carole Curtis, Ontario Court of Justice

Fact Pattern

June 5, 2017

Evidence in Small Claims Court

FOR PARALEGALS

Fact Pattern

The plaintiffs are the owners of 1644 Oxford Crescent in Orleans, Ontario. They bought their home in 2009. In September, 2014 they contacted the defendant for the purpose of obtaining an estimate to demolish and replace their shower, bathtub and tiling in their master bedroom. They obtained an initial estimate from the defendant but decided to do some of the demolition and preparatory plumbing work on their own. On November 25, 2014, they accepted the defendant’s estimate of $6632.56 to install a heated floor, shower base and floor tiling and waterproofing. They purchased the tiles and did the preparatory work including the demolition of the old bathroom and removed all the old fixtures. The rough plumbing work was done by the plaintiff’s brother and was completed by December 1, 2014.

On December 3, 2014, when the defendant began its work, he discovered that the walls were not square and reported other problems. An agreement was reached that it would carry out the extra work to resolve those new issues for an additional $4131.77. Most of the work was completed by Christmas of 2014. The main and most important work was the installation of a Schluter System for the shower, which effectively is a waterproofing system and which is warrantied for a term of 10 years.

The work was completed on January 13, 2015 and payment was made to the defendant in the sum of $12,436.85.

On January 6, 2015 (before payment was made), the plaintiffs sent the defendant an email listing several minor items as defects. They were: that grout was missing from some areas of the floor; that certain supplies were left unaccounted for; that ledges in the shower needed repair; that the bath tub was not correctly installed; that the vanity countertop has damaged; and that some drywall taping had bubbles.

In their claim, the plaintiffs allege breach of contract claiming deficiencies and have listed five items requiring rectification, most of which were not in the January 6, 2015 email (pooling water in the shower taking a long time to drain; grout lines not a uniform colour; jagged edge in the shower alcove; damage to the granite countertop; tiles on the shower wall and the shower floor do not align). The plaintiffs claim that there is no solution other than the demolition of all the work done by the defendant coupled with a brand-new installation, all of which will cost $22,328.80. To date, over 2 years later, no work has been done.

The biggest issue for the plaintiffs is that the water in the shower fails to drain properly. The water pools in the shower to a point where it takes a long time to drain. The plaintiffs have prepared a short video showing the time it takes to fully drain. They allege that there is no way to remedy this situation without a complete tear down and reinstallation. The plaintiffs claim that the first time they noticed this was when they first used the shower on March 13, 2015. This issue was not raised in their January 6, 2015 email.

The defendants state that the plaintiffs have continually used the bathroom since December 31, 2014 and the deficiencies are either minor and/or cosmetic in nature and which can be easily rectified at a minimal cost of under $1500.00 and that furthermore some of the items are not its responsibility. It should also be pointed out that there is an email from the plaintiffs to the defendants indicating they have been using the shower since at least January 19, 2015.

[Portions of this fact pattern have been derived from Armstrong v Your Reno Guys Inc., 2017 CanLII

21774 (ON SCSM)]

TAB 1

Evidence in the Small Claims Court

Miray Cheskes-Granovsky, Deputy Judge and General Counsel

Atlantic Coast Papers

June 5, 2017

Evidence in Small Claims Court for

FOR PARALEGALS

EVIDENCE IN THE SMALL CLAIMS COURT1

Introduction

The Small Claims Court is, by design, a less formal court than other

courts in the province. Its approach to the rules of evidence is notably flexible

in comparison to the Superior Court of Justice.2 In Grover v. Hodgins3, the

Ontario Court of Appeal described the Small Claims Court as follows:

Procedures are simpler in the Small Claims Court; matters are decided in

a summary way under relaxed rules of evidence.

Despite the relaxed procedures of the Small Claims Court, the rules of

evidence do apply.4 The primary test for the admissibility of evidence is its

relevance, and the law of privilege determines when relevant evidence is

1 Deputy Judge Miray Cheskes Granovsky, May, 2017 2 Justice Marvin A. Zuker, Ontario Court of Justice, Ontario Small Claims Court Practice 2013, Thomson Reuters Canada Limited 2012 3 2011 ONCA 72, paragraph 47 4 Justice Paul Perell, Superior Court of Justice, “Evidence and the People’s Court,” Caswell Education Seminars, March, 2014

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excluded. Justice Perell of the Superior Court of Justice describes the Small

Claims Court’s approach to the rules of evidence5:

By way of contrast, within limits, a judge of the Small Claims Court may

be more liberal or relaxed in the admission of evidence, particularly

hearsay evidence. The point to emphasize, however, is that this

liberality has boundaries, and, thus, much of the law of evidence

applies.

Relevance and Materiality

The rules of evidence limit the evidence admitted at trial to that which

assists the trier of fact in determining the issues in dispute.6 The issues in

dispute are the questions that the court must decide, and evidence is

admissible if it relates to an issue in dispute. A fact is relevant when it tends

to prove a proposition.7 A fact is material when the proposition that it proves

makes a difference to the court.8 Evidence may be admitted if it is relevant to

5 Ibid. 6 James C. Morton, Ontario Litigator’s Pocket Guide to Evidence, Fifth Edition, LexisNexis Canada Inc. 2010, p. 3 7 Ibid., p. 5 8 Ibid.

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questions about the credibility of a witness.9 There is a low threshold for

determining if evidence is relevant. The Supreme Court of Canada stated10:

To be logically relevant, an item of evidence does not have to firmly

establish, on any standard, the truth or falsity of a fact in issue. The

evidence must simply tend to “increase or diminish the probability of

the existence of a fact in issue”…

The principles of relevance and materiality are expressed in section

27(1) of the Courts of Justice Act11, which details the types of evidence that

are admissible in the Small Claims Court. In Prohaska v. Howe12, the

Divisional Court clearly outlines the role of the judge in determining the

admissibility of evidence:

First, Deputy Judges must have the authority to exercise a gatekeeping

function to determine whether evidence should be admissible. If they

did not have this power, then parties in small claims court actions

would have the right to call opinion evidence, unlimited character

evidence, similar fact evidence, and irrelevant evidence. Cases could go

9 Supra, note 2, p. 6 10 R. v. Griffin, [2009] S.C.J. No. 28, 2009 SCC 28; from Supra, note 4, p. 5 11 R.S.O. 1990, c. C.43 12 2016 ONSC 48 (CanLII)

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on forever if they were not controlled. The importance of the trial

judge’s gatekeeper function has been discussed in many cases . . .13

Despite the wide latitude given to admit evidence under s. 27 of the Courts of

Justice Act,14 it is ultimately in the trial judge’s discretion to make decisions

about the admissibility of evidence.

Probative vs. Prejudicial Value of Evidence

The probative value of evidence is the “believability” and

“informativeness” of the evidence.15 Evidence may be considered prejudicial if

it encourages a decision to be made through improper reasoning, such as

emotion.16 The Supreme Court of Canada has stated that evidence may have

a prejudicial effect if its tendency is to produce “irrational conclusions; to

confuse, mislead, or distract the trier of fact’s attention from the main issues;

to unduly occupy the trier of fact’s time; and to surprise the opponent unfairly

13 Ibid., para. 29 14 Supra, note 11 15 David M. Paciocco and Lee Stuesser, The Law of Evidence, sixth edition, Irwin Law Inc., 2011 16 Ibid.

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and to impair a fair trial.”17 Relevant evidence may be excluded if its

prejudicial effect overshadows its probative value.

When evidence is relevant and admissible, it is for the judge to decide

the weight to give that evidence. The judge will determine the influence that

the evidence has on their decision-making in the case.

The Courts of Justice Act and Rules of the Small Claims Court relating to

Evidence

The Courts of Justice Act18 and the Rules of the Small Claims Court19

contain several sections relating to the admissibility of evidence in the Small

Claims Court.

Section 27 of the Courts of Justice Act:20

Evidence

17 Supra, note 4, p. 7; from R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Seaboyer, [1991] 2 S.C.R. 577, R. v. Potvin, [1989] 1 S.C.R. 525 18 Supra, note 11 19 O. Reg. 258/98 20 Supra, note 11

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27 (1) Subject to subsections (3) and (4), the Small Claims Court may admit as evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious.

Same

(2) Subsection (1) applies whether or not the evidence is given or proven under oath or affirmation or admissible as evidence in any other court.

Same

(3) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible by reason of any privilege under the law of evidence; or

(b) that is inadmissible by any Act.

Conflicts

(4) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

Copies

(5) A copy of a document or any other thing may be admitted as evidence at a hearing if the presiding judge is satisfied as to its authenticity. R.S.O. 1990, c. C.43, s. 27.

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In O’Brien v. Rideau Carleton Raceway Holdings Ltd.,21 the Divisional

Court held that oral evidence given by witnesses who were not sworn or

affirmed is admissible in the Small Claims Court. The Court cited sections 27

(1) and (2) of the Courts of Justice Act22 as a full answer to the Defendant’s

argument that a real trial had not taken place and no evidence was heard

because the witnesses were not sworn or affirmed.

Rules of the Small Claims Court:23

General Principle

1.03 (1) These rules shall be liberally construed to secure the just, most

expeditious and least expensive determination of every proceeding on its

merits in accordance with section 25 of the Courts of Justice Act. O. Reg.

258/98, r. 1.03 (1).

Matters Not Covered in Rules

21 [1998] O.J. No. 500, 109 O.A.C. 173, 34 C.C.E.L. (2d) 199, 77 A.C.W.S. (3d) 329 (Ont. Div. Ct.) 22 Supra, note 11 23 Supra, note 18

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(2) If these rules do not cover a matter adequately, the court may give

directions and make any order that is just, and the practice shall be decided

by analogy to these rules, by reference to the Courts of Justice Act and the

Act governing the action and, if the court considers it appropriate, by

reference to the Rules of Civil Procedure. O. Reg. 78/06, s. 3.

In Riddell v. Apple Canada Inc., 24 the Divisional Court affirmed the

deputy judge’s pre-trial inspection order for the Applicant to produce his

iPhone to the Respondent. The Applicant claimed against the Respondent for

damages suffered when his iPhone overheated, causing burns to his arm. He

told the deputy judge of his intention to bring an expert to trial to provide

expert evidence based on an inspection of the iPhone. The deputy judge

stated that:

“ …it would not be in keeping with the principles of natural justice to

require the respondent to proceed to trial without the benefit of an

inspection”.25

24 2016 ONSC 6014 (CanLII) 25 Ibid., para. 5

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Although there is no provision in the Rules of the Small Claims Court26

that specifically allows for this type of inspection order, the Divisional Court

found that the deputy judge was correct in making an order analogous to the

type of order made under Rule 32.01 of the Rules of Civil Procedure.27

Additionally, the Court acknowledged the Small Claims Court’s authority to

make any order that is just under R. 1.03 (1)28. Justice Nordheimer stated that

the pre-trial order “was necessary to secure a just determination of the central

issue raised in the proceeding.”29 The Ontario Court of Appeal has agreed to

hear an appeal of this matter.

Written Statements, Documents, and Records

18.02 (1) A document or written statement or an audio or visual record that

has been served, at least 30 days before the trial date, on all parties who were

served with the notice of trial, shall be received in evidence, unless the trial

judge orders otherwise. O. Reg. 78/06, s. 36 (1).

(2) Subrule (1) applies to the following written statements and

documents:

26 Supra, note 18 27 R.R.O. 1990, Regulation 194 28 Supra, note 18 29 Supra, note 23, para. 19

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1. The signed written statement of any witness, including the written

report of an expert, to the extent that the statement relates to facts

and opinions to which the witness would be permitted to testify in

person.

2. Any other document, including but not limited to a hospital record or

medical report made in the course of care and treatment, a financial

record, a receipt, a bill, documentary evidence of loss of income or

property damage, and a repair estimate. O. Reg. 258/98, r. 18.02 (2);

O. Reg. 78/06, s. 36 (2).

There are a number of cases about expert evidence in which R 18.02 is

considered. In Prohaska v. Howe,30 the Divisional Court addresses the vague

terms of this rule. The Court adopts the reasons of Nolan, J. in Tosti v.

Society of the Madonna31 and holds that under R 18.02, it is reasonable and

appropriate for expert reports to be prepared in writing and served at least 30

days in advance of trial.32 The Court goes on to state:

Rule 18.02 gives a Deputy Judge the ability to admit documents that

do not comply with the requirements. This Rule would give the Deputy

Judge the discretion to admit an expert report and hear testimony from

30 Supra, note 12 31 2011 ONSC 339 (CanLII) 32 Supra, note 12, para. 41

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https://www.canlii.org/en/on/laws/regu/o-reg-258-98/latest/o-reg-258-98.html#sec18.02subsec2_smooth

an expert even if a report was not served properly. However, that

discretion must be exercised reasonably.33

The deputy judge has the discretion to admit an expert report even if the

report is not filed 30 days in advance of trial in accordance with R. 18.02. In

this case, the Appellant wanted to call an expert without filing an expert

report or providing notice to the Respondent that the witness was an expert.

The Divisional Court upheld the deputy judge’s decision to adjourn the trial in

order for the Appellant to file an expert report. Similar to its reasoning in

Riddell34, the Divisional Court found it reasonable to grant an adjournment “to

ensure that the Respondent knew that (sic) case it had to meet.”35

In Cho v. Middleton,36 the deputy judge would not admit the

Appellant’s expert report into evidence. The Appellant attempted to

introduce his report after he closed his case, leaving the Respondent unable

33 Supra, note 12, para. 44 34 Supra, note 24 35 Supra, note 12, para. 48 36 2016 ONSC 7251 (CanLII)

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to respond or cross-examine. The Divisional Court found that Rule 18.02 (1)

gave the trial judge the discretion to exclude the report and affirmed his

decision. Unlike the decision to adjourn the trial in Prohaska,37 the Appellant

did not request an adjournment so he could call his expert evidence in reply.

Rule 18.02 is described as an enabling provision rather than a

prohibition that excludes the admission of evidence. In Lakehead Aluminum

v. Mauno Parkkari,38 the Divisional Court wrote:

While rule 18.02 expressly mandates the admission of documents that

fall within its terms, it does not require the exclusion of documents that

do not fall within its terms as set out in Ontario Small Claims Court

Practice 2014:

Rule 18.02 is often misinterpreted. The rule provides a procedure for

the admission of documents which have been served on the other

parties at least 30 days before trial, without the need for in-person

witness. It does not say that no document can be admitted at trial

unless it was disclosed at least 30 days before trial: see O’Connell v.

Custom Kitchen & Vanity, 1986 CanLII 2650 (ON SC), 1986 CarswellOnt

414, 56 O.R. (2d) 57, 11 C.P.C. (2d) 295, 17 O.A.C. 157 (Ont. Div. Ct.).39

37 Supra, note 12 38 2014 ONSC 4167 (CanLII) 39 Ibid., para. 21

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https://www.canlii.org/en/on/onsc/doc/1986/1986canlii2650/1986canlii2650.html

The Divisional Court upheld the deputy judge’s decision to allow a document

into evidence that was not served prior to trial. The Respondent introduced

the document through an in-person witness. The Court stated that the 30-day

rule provided the opposing party with an opportunity to challenge a

document’s authenticity when it is entered into evidence without the evidence

of a witness.40

In Untinen v. Dykstra, c.o.b., Dykstra Roofing & Renovations, IKO

Industries Ltd.,41 the Divisional Court followed the decisions in Parkkari and

Prohaska by upholding the trial judge’s decision to allow the Defendant’s

opinion evidence. The Defendant was not qualified as an expert and did not

file an expert report. In its Reasons for Judgment, the Court stated:

… there is no absolute obligation pursuant to the Rules of the Small

Claims Court to file a written report prior to trial and that the discretion

to admit opinion evidence without a report having been filed in

advance of trial lies with the trial judge.42

40 Ibid., para. 22 41 2016 ONSC 4721 42 Ibid., para. 30

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The Court cautioned parties who wait until trial to present opinion evidence.

The trial judge retains the discretion to exclude the evidence, or grant an

adjournment with cost consequences for the party introducing the evidence.43

There are some interesting evidentiary issues in the Small Claims Court

that warrant closer examination given the frequency with which they arise.

Litigants often rely on text messages as evidence at trial. There are questions

as to whether text messages should be treated like other documents or

written statements entered into evidence. Another interesting evidentiary

matter for consideration involves the compellability of a litigant’s spouse as a

witness for the opposing party. There is statutory authority that speaks to the

issue of spousal compellability and privilege.

Text Messages as Evidence

43 Ibid., para. 31

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There are few civil cased reported that deal with the admissibility of

text messages. The Ontario Labour Relations Board considered the

production of text messages as evidence in a certification application. In

Carpenters' District Council of Ontario, United Brotherhood of Carpenters and

Joiners of America v Elric Contractors of Wallaceburg Limited,44 the Board

ordered the production of the union organizers’ text messages. The Board

held:

The fact that the information as to the observations and activities

engaged in by the union organizers is recorded in a text message as

opposed to note book is not a principled distinction between the two.

In general the medium in which the information is recorded is not a

relevant basis for ordering production of one class of documents and

not the other.45

Text messages may be considered electronic records, as defined by the

Ontario Evidence Act46:

34.1 (1) In this section,

…

44 2014 CanLII 75765 (ONLRB) 45 Ibid., para. 11 46 R.S.O. 1990, c. E.23

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“electronic record” means data that is recorded or stored on any

medium in or by a computer system or other similar device, that can

be read or perceived by a person or a computer system or other similar

device, and includes a display, printout or other output of that data,

other than a printout referred to in subsection (6); (“document

électronique”)

There is a similar definition found at s. 31.8 of the Canada Evidence Act.47 If

text messages are viewed as electronic records, their authenticity and the

integrity of the stored information must be established in order to be

admissible as evidence.48

Spousal Compellability and Privilege

It is not uncommon for spouses to be called as witnesses for the

opposing party in Small Claims Court cases. Spouses are compellable by the

opposing party, but a spouse does not have to disclose communications

47 R.S.C., 1985, c. C-5 48 Supra, note 15, page 173; see also s. 31.1 of the Canada Evidence Act, supra, note 47

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made by their spouse during marriage.49 Section 11 of the Ontario Evidence

Act50 states:

Communications made during marriage

11. A person is not compellable to disclose any communication made

to the person by his or her spouse during the marriage. 2005, c. 5,

s. 25 (5).

Section 4 of the Canada Evidence Act51 contains a similar provision for

criminal cases. A spouse may consent to provide evidence about

communications made by his or her spouse during the marriage, in particular

if he or she believes that it will bolster their spouse’s arguments at trial.

Conclusion

The general rules of evidence apply in both the Small Claims Court and

the Superior Court of Justice. In the Small Claims Court, the rules of

49 Michelle Fuerst and Mary Anne Sanderson, Ontario Courtroom Procedure, Third Edition, LexisNexis Canada Inc., 2012, p. 793 50 Supra, note 46 51 Supra, note 47

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evidence are relaxed in accordance with s. 27 of the Courts of Justice Act52

and s. 1.03 and s. 18.02 of the Rules of the Small Claims Court.53 Deputy

judges have a great deal of discretion, to be exercised reasonably, with

respect to the admissibility of evidence. A review of the recent case law

reveals that the application of the rules of evidence in the Small Claims Court

is continually developing and refined.

52 Supra, note 11 53 Supra, note 19

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TAB 2

Proper Preparation of Witness

Statements and Affidavits for

Small Claims Court Actions

Fredrick Goodman Fredrick Goodman Paralegal

June 5, 2017


FOR PARALEGALS

EVIDENCE IN SMALL CLAIMS COURT FOR

PARALEGALS

Proper Preparation of Witness Statements and

Affidavits for Small Claims Court Actions

June 5, 2017

Fredrick Goodman

Fredrick Goodman Paralegal

1

2 - 1

Courts of Justice Act

Section 25

Summary Hearings

25. The Small Claims Court shall hear and

determine in a summary way all questions of law

and fact and may make such order as is considered

just and agreeable to good conscience.

2

2 - 2


Section 27 (1)

Evidence

27. (1) Subject to subsections (3) and (4), the Small

Claims Court may admit as evidence at a hearing

and act upon any oral testimony and any document

or other thing so long as the evidence is relevant to

the subject-matter of the proceeding, but the court

may exclude anything unduly repetitious.

3

2 - 3


Section 27 (2)

Evidence

Idem

(2) Subsection (1) applies whether or not the

evidence is given or proven under oath or

affirmation or admissible as evidence in any other

court.

4

2 - 4


Section 27 (3)

Evidence

Idem

(3) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible by reason of any

privilege under the law of evidence; or

(b) that is inadmissible by any Act.

5

2 - 5


Section 27 (4)

Evidence

Conflicts

(4) Nothing in subsection (1) overrides the provisions

of any Act expressly limiting the extent to or

purposes for which any oral testimony, documents or

things may be admitted or used in evidence in any

proceeding.

6

2 - 6


Section 27 (5)

Evidence

Copies

(5) A copy of a document or any other thing may

be admitted as evidence at a hearing if the

presiding judge is satisfied as to its authenticity.

7

2 - 7

Paralegal Rules of Conduct

Rule 3 Duty to Clients

3. 01 Competence

Required Standard

3. 01 (1) A paralegal shall perform any services

undertaken on a client’s behalf to the standard of a

competent paralegal.

8

2 - 8

Rules of the Small Claims Court

Commencement of Proceedings

Rule 7

Defence

Rule 9

Defendant’s Claim

Rule 10

9

2 - 9


Evidence at Trial

Rule 18.01

Affidavit

18.01 At the trial of an undefended action, the

plaintiff’s case may be proved by affidavit, unless

the trial judge orders otherwise.

10

2 - 10


Evidence at Trial

Rule 18.02 (1)

Written Statements, Documents and Records

(1) A document or written statement or an audio

visual record that has been served, at least 30 days

before the trial date, on all parties who were

served with the notice of trial, shall be received in

evidence, unless the trial judge orders otherwise.

11

2 - 11


Evidence at Trial

Rule 18.02 (2)


(2) Subrule (1) applies to the following written statements and documents:

1. The signed written statement of any witness, including the written report of an expert, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person.

12

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Evidence at Trial

Rule 18.02 (2)


(Continued)

2. Any document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a receipt, a bill, documentary evidence of loss of income or property damages, and a repair estimate.

13

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Evidence at Trial

Rule 18.02 (3)

Details about Witness or Author

(3) A party who serves on another party a written

statement or document described in subrule (2) shall

append to or include in the statement or document,

14

2 - 14


Evidence at Trial

Rule 18.02 (3)


(Continued)

(3) (a) the name, telephone number and address for service of the witness or author; and

(b) if the witness or author is to give expert evidence, a summary of his or her qualifications.

15

2 - 15


Evidence at Trial

Rule 18.02 (4)


(4) A party who has been served with a written

statement or document described in subrule (2) and

wishes to cross-examine the witness or author may

summon him or her as a witness under subrule

18.03(1).

16

2 - 16


Evidence at Trial

Rule 18.02 (5)

Where Witness or Author is Summoned

(5) A party who serves a summons to witness on a

witness or author referred to in subrule (3) shall, at

the time the summons is served, serve a copy of the

summons on every other party.

17

2 - 17


Evidence at Trial

Rule 18.02 (6)

Where Witness or Author is Summoned

(6) Service of a summons and the payment or

tender of attendance money under this rule may be

proved by affidavit (Form 8A).

18

2 - 18


Evidence at Trial

Rule 18.02 (7)

Adjournment

(7) A party who is not served with a copy of the

summons in accordance with subrule (5) may request

an adjournment of the trial, with costs.

19

2 - 19


Evidence at Trial

Rule 18.03 (1)

Summons to Witness

(1) A party who requires the attendance of a

person in Ontario as a witness at a trial may serve

the person with a summons to witness (Form 18A)

requiring him or her to attend the trial at the time

and place stated in the summons.

20

2 - 20


Evidence at Trial

Rule 18.03 (2)

Summons to Witness

(2) The summons may also require the witness to

produce at the trial the documents or other things in

his or her possession, control or power relating to

the matters in question in the action that are

specified in the summons.

21

2 - 21


Evidence at Trial

Rule 18.03 (3) (4) (5)

Summons to Witness

(3) A summons to witness (Form 18A) shall be served in accordance with subrule 8.01(7).

(4) Service of a summons and the payment or tender of attendance money may be proved by affidavit (Form 8A).

(5) A summons to witness continues to have effect until the attendance of the witness is no longer required.

22

2 - 22


Evidence at Trial

Rule 18.03 (6)

Failure to Attend or Remain in Attendance

(6) If a witness whose evidence is material to the conduct of an action fails to attend at the trial or to remain in attendance in accordance with the requirements of a summons to witness served on him or her, the trial judge may, by warrant (Form 18B) directed to all police officers in Ontario, cause the witness to be apprehended anywhere within Ontario and promptly brought before the court.

23

2 - 23


Evidence at Trial

Rule 18.3 (8)

Abuse of Power to Summon Witness

(8) If satisfied that a party has abused the power

to summon a witness under this rule, the court may

order that the party pay directly to the witness an

amount as compensation for inconvenience and

expense.

24

2 - 24

Evidence Act

Business Records

Section 35 (1)

Definitions

35. (1) In this section,

“business” includes every kind of business, profession, occupation, calling, operator or activity, whether carried on for profit or otherwise;

“record” includes any information that is recorded or stored by means of any device.

25

2 - 25

Evidence Act

Business Records

Section 35 (2)

Where business records admissible

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within reasonable time thereafter.

26

2 - 26

Evidence Act

Business Records

Section 35 (3)

Notice and production

(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.

27

2 - 27

Evidence Act

Business Records

Section 35 (4)

Surrounding circumstances

(4) The circumstances of the making of such a

writing or record, including lack of personal

knowledge by the maker, may be shown to affect its

weight, but such circumstances do not affect its

admissibility.

28

2 - 28

Evidence Act

Business Records

Section 35 (5)

Previous rules as to admissibility and privileged

documents not affected

(5) Nothing in this section affects the admissibility

of any evidence that would be admissible apart

from this section or makes admissible any writing or

record that is privileged.

29

2 - 29

Case Law

1. 936464 Ontario Ltd. c.o.b. as Plumbhouse Plumbing & Heating v. Mungo Bear Ltd. (2003), 74 O.R. (3d) 45 (S.C.J)

2. Central Burner Service Inc. v. Texaco Can. Inc. (1989), 36 O.A.C. 239 (Div. Ct.)

3. Sathaseevan v. Suvara Travel Canada Inc., [1998] O.J.No. 1055 (Ont. Div. Ct.)

4. VFC Inc. v. Balchand; 2008 CarswellOnt 909; 233 O.A.C. 359, 291 D.L.R. (4TH) 367 (S.C.J.)

5. R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57

30

2 - 30

COURT FORMS IN SMALL CLAIMS COURT

31

2 - 31

-OtJrARIO

Superior Court of Justice

........

S~a! OaiP.'Il Court

and

Li$t ot Proposed WJtna&Sas F(t'T'II • 3A ~ Reg. ~: •• 258:98

Uj namelg ------------w.=· ==,-- ----- ----~Name:: part/INPt.awn;~~;

Nam~ of W'ltnee8

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FORM 13A PAGE2

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COURT FORMS IN SMALL CLAIMS COURT

32

2 - 32

-ONTAR,'O

Superior Court of JustJe4)

SETWEEN

and

Summon• to Wrtneesc F'or~ 1~,6. On: Re:J No.: 2~·'$18

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For informati:m on ao:;essibilitv of court services for people wth dioability·r~latEd need$ eortact: 1~1

Telephone: 41~6·2220 I t-80~1r.790! TTY: 41o-324-401Z I t-e77-425-0$7$

Will - Say Statements33

2 - 33

-Pagel o:f2:

Cloi'11 No. SC - 15- S170 - 00 (Toronto Small Claims Couot}

W1l.~ -SAY STA TE:MENT OF

STEPHEN ALLEN BRUNSWICK

Ste~l'l:el'l Al~tn Bru,..s~k will 9iYC 11e ro11awin~ EJ'IItc«K:e (V'I bend ot ~ p1stn11rts in resp~t oflJ";iJo $rni'r:

C laims Court p-o::a:Ming:

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ie e pen"''er h ltte ~~ fil"'''''-*¢tslc)o, Col5on UP.

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behel~ of 1ne ~~a:-:rwi'~ Ro~ Et$etlberg al'l~ Elien EiaenOOg.

3. More recen1:y, a N~ce :::tt ::11ang• ~r R~eniottion was :somed and filed on November 4m,

2015. The J)ll~irdfs ate now t-eprKeme:s~ ~rec:kck ~timan., a llt:eMoed !'13t;llot9(11.

4. Azs a reN.ft c f flit. Brunaw.ek no long« tcr.g th<: r;taint:ft&' l~uyer. he ia oo"' In a po-s.oo.1o rc. ~ 3

'llli1ness a '"ld to give e\"'dem:::e st rne 1na1 or tne 3C'IItln . 01'1 tel'\alf Of IM olarmifl'6.

5. Mr. Brunewick !'lad con\'ersat iOns \\111'1 Ml"\., AM <k.ori'lg the month cf SeP16mber of 20H snd tte

ll'li!<n $~'\de:d ;,.., pe l"\oQn ;jilt t~ plaintiffs.· se.6ideotial p:operry lr: or Sf"'OJnd septen-.l)tl·, 20 14 , Tht:

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re91den!l3t "ror>e-:tt ~fld is rnunieioaiiJ k..-onT1 a s 51 Old Ccmy Road.

7. At 1he tinE-that he srte<ried ~ L..,: prope:tty, Mr. BI'\IM"Mck 't.o&lked the propen y.

8. M/"9. AM, \W.o is u n t: o t l he defe:r-datlbJ;, SPOke 1Mih Mr. Brun~ick st that time.

Will - Say Statements34

2 - 34

-Pa:e lof l

9. Du•ing ~1r. Bruns.'Ck's dilft::uuion v.i.h M~. AM. l w.u evident tha1 the propor(y boundary lone

ha<l b .. n ft'latk•d out by .a:t'""'Y'O'· and M•&.. AM Wrt&dihalf'leitl".&r sr.o• '""'' hl.l$banCI h..., MY

or 10 ct.ain' 3S'.y porUon of the Eite.")berga' pr~"1)'.

10. Jott1itytflcn totf\6 be~t otrrrj t.:r:crM.edgeandte1iat' that all of the inforrr.ation on thi& wrtem.ern 1::9

.., ..

"The following text is provided courtesy ofLexisNexisT.M QuicklawTM . Further reproduction of this text in any form is prohibited without written pe1mission from of LexisNexisTM Quicklawrn. (1-800-387-0899, www.quicklaw.com)"

Case Name:

VFC\ Inc. v. Balchand

Between VFC Inc,, Plaintiff/Respondent, and

Marlene Balchand, Dcfendant/Appelllmt

[2008] 0.J. No. 533

233 O.A.C. 359

164 A.C.W.S. (3d) 111

291 D.L.R. ( 4th) 367

Comt File No. 615/06

Ontario Superior Court of Justice Divisional Court - Toronto, Ontario

M.R. Dambrot .J,

Heard: Febrnmy 11, 2008. Judgment: Febmary 14, 2008.

(38 paras,)

Page I

Commercial law -- Sale ofgoods --Appeal by Balchandfromjudgment of Small Claims Court holding her liable for purchase of motor vehicle dismissed--Evidence adduced by respondent was no/ hearsay and was admissible -- Business records established that Balchand had signed contract and acknowledged debt.

Civil litigation -- Civil evidence -- Hearsay rule --Exceptions -- Business records -- Appeal by Balchand from judgment of Small Claims Court holding her liable for purchase of motor vehicle dismissed -- Evidence adduced by respondent was not hearsay and was admissible -- Business records established that Balchand had signed contract and acknowledged debt,

Appeal by Dalchand from judgment of Small Claims Court holding her liable for purchase of motor

2 - 35

vehicle -- Balchand signed a Bill of Sale and a Conditional Sales Contract with car dealer and agreed to pay outstanding amount -- The Contract assigned rights of the dealer under the Contract to the Respondent, a financing company -- Balchand defaulted on payments -- The Respondent brought an action to enforce payment -- Balchand was found liable - Balchand argued that the Bill of Sale, the Conditional Sales Contract and other business records were hearsay evidence and should have been inadmissible, and that there was insufficient evidence for the finding of liability -HELD: Appeal dismissed -- The business records were not hearsay -- Section 27(1) of the Ontario Courts of Justice Act allowed any relevant document into evidence at Small Claims Court -- Neither s. 2 nor s. 35 of the Ontario Evidence Act affected admissibility of business records in Small ClaimsCourt -- The evidence adduced was clearly capable of establishing liability.

Statutes, Regulations and Rules Cited:

Canada Evidence Act, R.S., 1985, c. C-5, s. 30, s. 30(11)

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 3 l(a), s. 21(2) (b ), s. 27(1), s. 27(3)(b)

Evidence Act, R.S.O. 1990, Chapter E.23, s. 2, s. 35(2), s. 35(5)

Counsel:

Ronald Lachmansingh, for the Plaintiff/Respondent.

John Weingust, Q.C., for the Defendant/Appellant.

(Editor's note: A corrigendum was released by lhc Coun April 17, 2008; lhe corrections have been mat.le to the tcx.t and the corrigendum is appended to lhis document.)

I M.R. DAMBROT J.:-- Marlene Balchand appeals to the Divisional Court pursuant to s. 3 l(a) of the Courts of Justice Act from the judgment of Deputy Judge Godfrey of the Ontario Superior Court of Justice, Toronto Small Claims Court, dated December 5, 2006, in which he held that the Appellant was liable to the Respondent under a Bill of Sale and Conditional Sales Contract for the purchase of a motor vehicle. I heard this appeal as a single judge of the Divisional Court pursuant to s. 21(2)(b) of the Courts of Justice Act.

2 During the course of the trial, the trial Judge admitted in evidence business records and other hearsay tendered by the Respondent. At the close of the Respondent's case, the Appellant elected to call no evidence and brought a motion for non-suit. The trial judge found that the Respondent had

established a prima facie case against the Appellant by virtue of the Bill of Sale and Conditional Sale Contract which bore the Appellant's apparent signature, and found, on a balance of probabilities, that the Appellant was liable to the Respondent under the Conditional Sales Contract.

2 - 36

3 At the end of the hearing, I dismissed the appeal with reasons to follow. These are those

reasons.

THE PROCEEDINGS AT TRIAL

Page 3

4 The only witness called by the plaintiff at trial was David Robinson, the supervisor of the legal department of the Respondent. He testified that the Respondent is a corporation that provides high-risk auto financing on the sale of motor vehicles to individuals possessing a poor credit rating.

When a dealership sells a car to a purchaser, the Respondent provides the dealership with funds in the amount of the purchase price on the purchase of the vehicle. The purchaser and the dealership then execute a conditional sales contract, which is forwarded by the dealership to the Respondent, along with the bill of sale for the purchased automobile. The Respondent is not a signatory to the Conditional Sales Contract but, pursuant to the terms of the Conditional Sales Contract, all of the dealership's rights under the contract are assigned to the Respondent.

5 Mr. Robinson testified that on December 13, 2002, the Appellant and Valour Campbell

purchased an automobile from Chancery Lane Motors for $12,051, and signed a Bill of Sale and a

Conditional Sales Contract. The Bill of Sale and Conditional Sales Contract were made exhibits at trial. According to the terms of the contract, the purchasers paid a deposit of $1,000, and agreed to

repay the "indebtedness,'' defined as the amount to be financed, the cost of borrowing and certain

other amounts, by making fifty consecutive monthly payments of $354.55. In addition, as a part of

the contract, the purchasers consented to the assignment of the vendor's rights under the contract to

the Respondent, and acknowledged the receipt of notice of the assignment to the Respondent and

that their payments were required to be made to the Respondent. They also acknowledged that in

the event of any default, at the vendor's option, the entire indebtedness would become due. In

addition, the Appellant, but not Mr. Campbell, authorized the Respondent to withdraw the payments

from her bank account as they fell due. Both purchasers signed a specific acknowledgement that

they had read the contract and agreed to its terms.

6 Mr. Robinson was not present when the Bill of Sale and Conditional Sales Contract were

signed. After execution, the documents were faxed to the Respondent's office, following which the

originals were forwarded to the Respondent. Mr. Robinson first saw the docwnents when the

originals were forwarded to the Respondent. The originals were placed in storage.

7 Mr. Robinson testified that after the execution of the Conditional Sales Contract, the Appellant

was contacted on numerous occasions by the Respondent and its representatives, by ordinary mail,

registered mail and by telephone. Whenever the Appellant was contacted by phone by one of the

Respondent's employees, the telephone conference and its contents would be logged into a database.

The database was unalterable once an entry had been made into the system. On some of these

occasions the Appellant acknowledged her indebtedness to the Respondent. A copy of the database

was made an exhibit at trial.

8 With respect to the written communications with the Appellant, Mr. Robinson testified that the

Respondent wrote to the Appellant on December 17, 2002, welcoming her as a VFC client and

2 - 37

reminding her of the monthly payments. This letter was field as an exhibit.

9 Counsel for the Appellant did not object when the Bill of Sale and Conditional Sales Contract were tendered in evidence. He did object when the database and the letter of December 17, 2002, was tendered. on the basis that they were hearsay. The trial Judge admitted the database and letter over his objection.

10 On December 2, 2004, the Respondent wrote to the Appellant advising her that as of that date, $11,645.51 remained outstanding on her loan account, and that as a consequence of default, the Respondent demanded that she bring the account up to date by paying the arrears and charges. This letter was also filed as an exhibit, as was a payment history of the loan showing the payments and defaults of the purchasers to January 13, 2005. No payments have been made since that date.

11 The Respondent commenced action against the Appellant and Mr. Campbell to enforce the contract. The Respondent had obtained default judgment against Mr. Campbell prior to the commencement of this trial.

12 At the close of the Respondent's case, the Appellant elected to call no evidence and moved for

a non-suit. In his argument, counsel for the Appellant pointed to the fact that the various documents proffered by the Respondent were hearsay, and submitted that there was insufficient evidence to establish that the Appellant had any obligation to the Respondent to pay for a motor vehicle.

13 The trial Judge dismissed the application for a non-suit, and gave judgment for the

Respondent in the amount of $10,000. He ruled that Bill of Sale and the Conditional Sales Contract bearing the apparent signature of the Appellant made out a primafacie case against her. In the absence of evidence that the signature was not the signature of the Appellant, the trial Judge was satisfied on the balance of probabilities that the Appellant was a party to the contract and that the amount owing by her was the amount claimed by the Respondent.

THE ISSUES

14 The Appellant argued the following issues on this appeal:

ANALYSIS

1. The Bill of Sale, Conditional Sales Contract and the other exhibits filed by

the Respondent at trial, as well as some of the oral evidence of theRespondent's sole witness, Mr. Robinson, were all inadmissible hearsay.

2. The evidence adduced by the Respondent was incapable of establishing theliability of the Appellant to the Respondent.

1. WAS THE HEARSAY EVIDENCE TENDERED BY THE RESPONDENTADMISSIBLE?

15 This appeal originally came on for hearing before my colleague Archibald J. Counsel for the

2 - 38

Appellant had argued in his factum that the trial Judge had wrongly relied on hearsay evidence to find that the Appellant was liable to the Respondent under a Conditional Sales Contract. In response, counsel for the Respondent, in his factum, pointed to s. 27(1) of the Courts of Justice Act,

and a line of decisions commencing with the judgment of Steele J. in Central Burner Service Inc. v.

Texaco Can. Inc. (1989), 36 O.A.C. 239 (Div. Ct.). Section 27(1) permits the Small Claims Court to admit as evidence at a hearing and act upon any oral testimony and any document or other thing, so long as the evidence is relevant. In Central Burner, Steele J. concluded thats. 80(1) of the Courts of

Justice Act, the predecessor of s. 27(1), allows relevant hearsay evidence to be admitted and relied upon in a Small Claims Court trial even in relation to a critical issue. His decision has been followed in a number of cases, including the judgment of Lane J. in Sathaseevan v. Suvara Travel Canada Inc., [1998] O.J. No. 1055 (Div. Ct.).

16 Archibald J. was concerned, however, that none of the cases had considered the significance of s. 27(3)(b) of the Courts of Justice Act. Section 27(1), which permits hearsay to be admitted into evidence, is, by its terms, subject to subsections (3) and (4). Subsection (3) provides that nothing is admissible in evidence at a hearing that is inadmissible by reason of privilege, or that is "inadmissible by any Act". He went on to note that s. 2 of the Ontario Evidence Act provides, "This Act applies to all actions and other matters whatsoever respecting which the Legislature has jurisdiction." Neither party, he continued, had addressed in their factums what the relationship is between s. 2 of the Ontario Evidence Act and s. 27(3) of the Courts of Justice Act, and, more

specifically, whether hearsay is admissible "absent compliance with the Evidence Act." As a result, he adjourned the hearing of the appeal to give the parties an opportunity to address the issue.

17 When Archibald J. referred to compliance with the Evidence Act, he obviously had in mind s. 35 of the Act, which deals with business records. It may be helpful to set out that section in its entirety. Section 35 provides:

(1) In this section,

"business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise;

"record" includes any information that is recorded or stored by means of any device.

(2) Any writing or record made of any act, transaction, occurrence or event isadmissible as evidence of such act, transaction, occurrence or event if made inthe usual and ordinary course of any business and if it was in the usual andordinary course of such business to make such writing or record at the time of

such act, transaction, occurrence or event or within a reasonable time thereafter.

2 - 39

(3) Subsection (2) does not apply unless the party tendering the writing or record has

given at least seven days notice of the party's intention to all other parties in the

action, and any party to the action is entitled to obtain from the person who has

possession thereof production for inspection of the writing or record within five

days after giving notice to produce the same.

(4) The circumstances of the making of such a writing or record, including lack ofpersonal knowledge by the maker, may be shown to affect its weight, but suchcircumstances do not affect its admissibility.

(5) Nothing in this section affects the admissibility of any evidence that would beadmissible apart from this section or makes admissible any writing or record thatis privileged.

18 The parties filed supplementary factums in an effort to address this issue.

19 Having considered the matter, I have concluded that there is nothing in the Ontario Evidence

Act to call into question the admissibility of hearsay at a Small Claims Court trial, even when the

hearsay is contained in business records.

20 Plainly, if a party to any proceeding governed by the Ontario Evidence Act proposes that a

business record be received in evidence pursuant to s. 35(2), the proponent of the evidence must

comply with the section. It must be shown that the record was made in the usual and ordinary

course of business as described ins. 35(2), and notice must have been given in accordance with s.

35(3).

21 But if Archibald J. was of the view that, by virtue of s. 2 and s. 35 of the Ontario Evidence

Act, the requirements of s. 35 must be complied with before any business record may be admitted

into evidence in a Small Claims Court trial, then I must, respectfully, depart company with him. In

particular, there is nothing in the business record provision in s. 35 that leads to such a result.

22 Prior to the liberalizing impact of the decision of the Supreme Court of Canada in Ares v.

Venner, [1970] S.C.R. 608, the common law rules governing the admissibility of business records

were widely felt to be completely out of line with the ever-increasing complexity of business

organizations.1 As Wigmore put it, "The application of the older law gradually developed a mass of

detailed petty limitations that had no relation to the practical trustworthiness of the document

offered."2 The business record provision of the Ontario Evidence Act was first enacted in 1966,

prior to the decision in Ares v. Venner, at a time when common law solutions to the problem were

felt to be unlikely, particularly having regard to the extremely restrictive approach to exceptions to

the hearsay rule taken by the House of Lords in Myers v. Director of Public Prosecutions, [ 1965]

A.C. l 001. The business record provision of the Ontario Evidence Act was intended to remedy the

shortcomings of the common law.

23 The object of s. 80(1) of the Courts of Justice Act, the predecessor of s. 27(1) of the Act, was

also remedial. As stated by Steele J. in Central Burner, "The object of s. 80 is to avoid technical

2 - 40

procedures and the additional cost of calling extra witnesses in cases involving small claims. 11 The monetary jurisdiction of the Small Claims Court has grown considerably since 1989 when Central

Burner was decided, and small claims today might not always seem to be so small, at least to the litigants. But so also have concerns about access to justice and the high cost of civil litigation grown. The underlying rationale for s. 27(1) described by Steele J. remains as valid today as it was in 1989.

24 Having regard to the policy underpinnings of both s. 35 and s. 27(1), it would seem odd, to me at least, if one remedial provision (s. 35) had the effect of trumping another (s. 27(1)), and narrowing its effect. Happily, in my view, as will be seen, there is no basis to reach that conclusion.

25 It has always been understood that s. 35 of the Ontario Evidence Act is an enabling provision, not a prohibition. It provides a new mechanism for the admission of business records into evidence, if its prerequisites are complied with. It does not purport to preclude either pre-existing statutory or common law authority to admit business records, or the enactment or development of additional statutory or common law authority to do so. Should there be any doubt about this, then I would point to s. 35(5) of the Act, set out above, which makes clear that nothing in s. 35 affects the admissibility of any evidence that would be admissible apart from this section.

26 If judicial authority is needed for this proposition, then I note the long line of cases to the same effect in reference to the similar business record provision found in s. 30 of the Canada

Evidence Act. While the federal provision is broader than the Ontario provision, and differs from it in some respects, like s. 35 it provides a statutory mechanism for the introduction of business

records into evidence. Section 30(11) of the federal Act, like s. 35(5) of the provincial Act, although quite differently worded, makes clear that the section is in addition to, and not in derogation of other statutory and common law authority to admit business records. Despite s. 30(11), the argument has frequently been made, as it has been here, that the provision places a roadblock across other avenues of admissibility. The courts have uniformly rejected this argument.

27 The issue first arose as early as 1973, remembering that s. 30 came into force only in 1970, in R. v. Bloomfield (1973), 10 C.C.C. (2d) 398 (N.B.S.C., App. Div.). The trial judge in that case had excluded two documents tendered by the Crown in evidence on the basis that seven days notice as required by s. 30 of the Canada Evidence Act had not been given. One of the documents was a

motel registration card produced by the registration clerk that was signed by Bloomfield. The other was a customs invoice seized from the possession of a co-accused. The Court of appeal concluded

that the trial judge was in error.

28 Limerick J.A. stated, for the Court:

This section when passed enabled certain matters to be proven by the production

of records kept in the ordinary course of business or by sworn copies thereof

which previously could only be established by viva voce evidence. Seven days notice to the opposite party is required by the section before its provisions may

2 - 41

be utilized. This section is not intended to apply and does not apply where a document or record tendered in evidence is admissible under any other rule of evidence or statutory provision. Any document made out by a party to a civil or criminal proceeding and signed by him is, subject to certain exceptions, if relevant, admissible in evidence against him and was so admissible before the enactment of said s. 30; so also is a document found in the possession of a party, if relevant.

29 This argument arose again in R. v. Monkhouse (1987), 61 C.R. (3d) 343 (Alta. C.A.). In that case, counsel for the accused argued on appeal that a payroll manager of the appellant's employer should not have been permitted to give oral evidence of entries in the company's payroll records that had been extracted from more extensive payroll records without compliance with s. 30. The witness had no personal knowledge of the information in the records, and did not produce the originals. The appeal was dismissed.

30 Laycraft J.A. stated, for the Court:

Much of the argument presented on this appeal dealt with the admissibility of this evidence under Section 30 of the Canada Evidence Act. That section is not, however, mandatory or exclusive; evidence which is admissible under the common law rules may be accepted even though it does not meet the requirements of section 30.

31 Finally, if Ontario authority be needed, I refer to my own judgment in United States of

America v. Quintin (2000), 73 C.R.R. (2d) 237. In that case, I admitted a variety of business records into evidence as a principled exception to the hearsay rule, over the objection of counsel for the persons sought. I stated, at para. 75:

The persons sought take objection to my taking into consideration most of the government documents, bank documents, and business records included in the affidavit material, on the basis of non-compliance withs. 30 of the Canada

Evidence Act, the business record provision. Of course, failure to comply with s. 30 is not a bar to admissibility. Section 30 is permissive. There are many other ways that business records can be introduced, particularly in an extradition case,

including application of the new principled approach to hearsay, focusing on necessity and reliability.

32 Having regard the language of s. 35 of the Ontario Evidence Act, the policy underlying it and s. 27(1) of the Courts of Justice Act, and the cases interpreting these and similar provisions, I

conclude that the trial Judge did not err in law in admitting into evidence Mr. Robinson's oral and

documentary hearsay.

2. WAS THE EVIDENCE ADDUCED BY THE RESPONDENT CAPABLE OF

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ESTABLISHING THE LIABILITY OF THE APPELLANT?

33 In my view, the evidence adduced by the Respondent was easily capable of establishing the liability of the Appellant.

34 The Bill of Sale and the Conditional Sales Contract were easily capable of establishing that one Marlene Balchand signed those documents, was a co-purchaser of a motor vehicle from

Chancery Lane Motors for $12,051; that the purchasers paid a deposit of $1,000, and agreed to pay the remainder of the purchase price and associated costs by making fifty consecutive monthly payments of $354.55; that the vendor's rights under the contract were assigned to the Respondent; that the purchasers consented to the assignment of the vendor's rights to the Respondent; that the purchasers acknowledged receipt of notice of the assignment to the Respondent; that the purchasers acknowledged that their payments were required to be made to the Respondent; and that the purchasers also acknowledged that in the event of any default, at the vendor's option, the entire

indebtedness would become due.

The database filed in evidence was easily capable of establishing that the Appellant was the

Marlene Balchand in question. In addition, if confirmation is necessary, I note that in paragraph 5 of

her Defence filed in the Small Claims Court, Ms. Balchand admitted signing the Conditional Sales Contract, although she also raised various defences that she did not advance at trial.

35 The payment history of the loan was easily capable of establishing the alleged default, which

continued to the trial.

36 The letter to the Appellant dated December 2, 2004 was easily capable of establishing that a

demand had been made to her to pay the arrears.

37 In the absence of the Appellant disputing any of the above, or raising any other defence,

judgment against her was inevitable. There is no merit to this ground of appeal.

DISPOSITION

38 The appeal is dismissed. I have already awarded costs to the Respondent in the amount of

$3,500,

M.R. DAMBROT J.

* *. * *

Corrigendum

Released: April 17, 2008

[ 1] In paragraph one, "Marlene Balchard" is changed to "Marlene Balchand".

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[2] In paragraph 25, "s. 35 of the Canada Evidence Act" is changed to 11s. 35 of the Ontario

Evidence Act".

cp/e/qlgxc/qlpwb/qljxl/qlesm/qlbrl/qlcam/qljxl

Page IO

1 See Documentary Evidence in Canada, Ewart, (Toronto, Carswell Legal Publications, 1984).

2 Wigmore on Evidence, (Chadbourn Revision, Little Brown & Co., Boston, 1974).

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SUPREME COURT OF CANADA

CITATION: R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57 DATE: 20061214 DoCKET: 30857

BETWEEN:

Her Majesty the Queen Appellant

and Ramnarine Khelawon

Respondent -and-

Attorney General of British Columbia and Criminal Lawyen' Association (Ontario)

lnterveners

CORAM: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

REASONS FOR JUDGMENT:

(paras. 1 to 110) Charron J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ. concurring)

2 - 45

- 9 -

statement go to ultimate reliability only and cannot be considered by the trial judge in

ruling on its admissibility. The decision has generated much judicial commentary and

academic criticism on various grounds, including the difficulty of defining what

constitutes an "extrinsic" circumstance and the apparent inconsistency between this

holding in Starr and the Court's consideration of a semen stain on the declarant's

clothing in R. v. Khan, [1990] 2 S.C.R. 531, the declarant's motive to lie in R. v. Smith,

[1992] 2 S.C.R. 915, and most relevant to this case, the striking similarities between

statements in R. v. U. (F.J.), (1995] 3 S.C.R. 764.

2 As a general principle, all relevant evidence is admissible. The rule

excluding hearsay is a well-established exception to this general principle. While no

single rationale underlies its historical development, the central reason for the

presumptive exclusion of hearsay statements is the general inability to test their

reliability. Without the maker of the statement in court, it may be impossible to inquire

into that person's perception, memory, narration or sincerity. The statement itself may

not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go

undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to

enhance the accuracy of the court's findings of fact, not impede its truth-seeking

function. However, the extent to which hearsay evidence will present difficulties in

assessing its worth obviously varies with the context. In some circumstances, the

evidence presents minimal dangers and its exclusion, rather than its admission, would

impede accurate fact finding. Hence, over time a number of exceptions to the rule were

created by the courts. Just as traditional exceptions to the exclusionary rule were largely

crafted around those circumstances where the dangers of receiving the evidence were

sufficiently alleviated, so too must be founded the overarching principled exception to

hearsay. When it is necessary to resort to evidence in this form, a hearsay statement may

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3

- IO -

be admitted if, because of the way in which it came about, its contents are trustworthy,

or if circumstances permit the ultimate trier offact to sufficiently assess its worth. If the

proponent of the evidence cannot meet the twin criteria of necessity and reliability, the

general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this

preliminary assessment of the "threshold reliability" of the hearsay statement and leaves

the ultimate determination of its worth to the fact finder.

The distinction between threshold and ultimate reliability reflects the

important difference between admission and reliance. Admissibility is determined by

the trial judge based on the governing rules of evidence. Whether the evidence is relied

upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to

decide in the context of the entirety of the evidence. The failure to respect this

distinction would not only result in the undue prolongation of admissibility hearings, it

would distort the fact-finding process. In determining the question of threshold

reliability, the trial judge must be mindful that hearsay evidence is presumptively

inadmissible. The trial judge's function is to guard against the admission of hearsay

evidence which is unnecessary in the context of the issue to be decided, or the reliability

of which is neither readily apparent from the trustworthiness of its contents, nor capable

of being meaningfully tested by the ultimate trier of fact. In the context of a criminal

case, the accused's inability to test the evidence may impact on the fairness of the trial,

thereby giving the rule a constitutional dimension. Concerns over trial fairness not only

permeate the decision on admissibility, but also infonn the residual discretion of the trial

judge to exclude the evidence even if necessity and reliability can be shown. As in all

cases, the trial judge has the discretion to exclude admissible evidence where its

prejudicial effect is out of proportion to its probative value.

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- Blank Page -

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TAB 3

Types of Evidence that are Admissible


June 5, 2017


FOR PARALEGALS

Types of Evidence that are Admissible

Presented at: Evidence in Small Claims Court for Paralegals, hosted by the Law Society of Upper Canada

By: Tracey McGoey, Senior Paralegal, Civil Litigation SectionJune 5, 2017

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2

Outline

What is evidence?

Legislation – What does the legislation say?

Rules – What do the rules say?

Best Practices

Exceptions – What are the exceptions?

Jurisprudence

2

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3

What is evidence?

Evidence can be defined as that which may help prove your case at trial and can include:

documents, records (including audio or visual records), or written statements

oral testimony real evidence

3

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4

Legislation

Courts of Justice Act, R.S.O. 1990, Chapter C. 43, s. 27(1)

27 (1) Subject to subsections (3) and (4), the Small Claims Court may admit as evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious.

27(2) Subsection (1) applies whether or not the evidence is given or proven under oath or affirmation or admissible as evidence in any other court.

4

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5

Legislation Cont’d

27(3)Nothing is admissible in evidence at a hearing,(a) that would be inadmissible by reason of any privilege under the law of evidence; or(b) that is inadmissible by any Act.

27(4)Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

27(5) A copy of a document or any other thing may be admitted as evidence at a hearing if the presiding judge is satisfied as to its authenticity. R.S.O. 1990, c. C.43, s. 27.

5

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6

Relevance

…so long as the evidence is relevant to the subject-matter of the proceeding…

How do you determine relevance?

Who determines the relevance?

6

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7

Rules - Commencement of Proceedings

7.01 (1) An action shall be commenced by filing a plaintiff ’s claim (Form 7A) with the clerk, together with a copy of the claim for each defendant. O. Reg. 258/98, r. 7.01 (1).

(2) The following requirements apply to the claim:…

2. If the plaintiff ’s claim is based in whole or in part on a document, a copy of the document shall be attached to each copy of the claim, unless it is unavailable, in which case the claim shall state the reason why the document is not attached. O. Reg. 461/01, s. 5; O. Reg. 78/06, s. 9 (1); O. Reg. 56/08, s. 1; O. Reg. 230/13, s. 6.

7

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8

Rules – Settlement Conferences

13.03(2) At least 14 days before the date of the settlement conference, each party shall serve on every other party and file with the court,

(a) a copy of any document to be relied on at the trial, including an expert report, not attached to the party’s claim or defence; and

(b) a list of proposed witnesses (Form 13A) and of other persons with knowledge of the matters in dispute in the action. O. Reg. 78/06, s. 27.

8

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9

Rules - Settlement Conferences Cont’d

13.05 (1) A judge conducting a settlement conference may make any order relating to the conduct of the action that the court could make. O. Reg. 78/06, s. 27.

(2) Without limiting the generality of subrule (1), the judge may,(a) make an order

(vi) directing production of documents

9

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10

Rules – Evidence At Trial

18.01 At the trial of an undefended action, the plaintiff ’s case may be proved by affidavit, unless the trial judge orders otherwise. O. Reg. 258/98, r. 18.01.

18.02 (1) A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise. O. Reg. 78/06, s. 36 (1).

10

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11

Rules – Evidence At Trial Cont’d

(2) Subrule (1) applies to the following written statements and documents:

1. The signed written statement of any witness, including the written report of an expert, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person.

2. Any other document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a receipt, a bill, documentary evidence of loss of income or property damage, and a repair estimate. O. Reg. 258/98, r. 18.02 (2); O. Reg. 78/06, s. 36 (2).

11

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12

Rules – Evidence At Trial

(3) A party who serves on another party a written statement or document described in subrule (2) shall append to or include in the statement or document,

(a) the name, telephone number and address for service of the witness or author; and(b) if the witness or author is to give expert evidence, a summary of his or her qualifications. O. Reg. 78/06, s. 36 (3).

(4) A party who has been served with a written statement or document described in subrule (2) and wishes to cross-examine the witness or author may summon him or her as a witness under subrule 18.03 (1). O. Reg. 258/98, r. 18.02 (4).

12

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13

Expert Opinion Testimony

When?

What is required?

Threshold for Admissibility

13

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14

What does it all mean?

Producing documents to the other side does not automatically mean they are admissible, they still must be presented to the court and authenticated

A Parties failure to produce within rules is not always fatal to the documents admissibility, however the party objecting must make it easy for the court to reject the document

14

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15

Best practices

Communicate with opposing counsel regarding the evidence you intend to rely on

Communicate with opposing counsel regarding witnesses you intend to call

Prepare a brief of documents for use at trial • Include a table of contents• Tab the documents • Number the pages

15

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16

Exceptions

Hearsay

Probative

Character attacks

16

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17

Exceptions - Privilege

Some forms of privilege include:

SCPLitigation Legislation Ontario EACEA

17

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18

Final Words

Section 27(2) of the Courts of Justice Act leaves the final decision on the admissibility of evidence to the discretion of the Deputy Judge hearing the matter, make it easy for Judge to give you want you want, by being prepared and organized.

Also keep in mind that under Rule 2.02 the Deputy Judge as a general discretion to wait the application of any Small Claims Rule

18

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19

Jurisprudence

R. v. Bingley, 2017 SCC 12

Chanachowicz v. Winona Wood Limited, 2016 ONSC 160

Lakehead Aluminum v. Mauno Parkkar, 2014 ONSC 41674

Untinen v Dykstra, 2016 ONSC 4721

19

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20

Contact Information

Tracey McGoey, Senior Paralegal

Civil Litigation Section, National Litigation Sector Phone: (613) 670-6254e-mail: [email protected]

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TAB 4

Best Practices for Adducing Evidence from Your Own Witness


June 5, 2017


FOR PARALEGALS

BEST PRACTICES FOR ADDUCING EVIDENCE FROM YOUR OWN WITNESS aka Examination in Chief

Jacqueline King, Shibley Righton LLP

Introduction

This paper will focus on best practices for adducing evidence from your own witness at trial.

First, you, of course, need to fully understand the legal issues in your case. Then, consider what

facts you need to prove your case and then, what evidence you have to prove those facts.

You will need to understand the law of evidence. Cases in Small Claims Court are governed by

the Ontario Evidence Act1, and the Rules of the Small Claims Court.2 I highly recommend that

you familiarize yourself thoroughly with both acts. That knowledge is invaluable.

Generally, evidence must meet two requirements: it must be admissible, which means relevant

and not subject to any exclusion under rule of law or policy; and the trial judge must not have

exercised judicial discretion to exclude the evidence.3

The Purpose of the Examination-in-Chief

The examination-in-chief is the questioning of your own client. Although this seems to be a

simple thing, I find cross-examination much easier. Do not underestimate the difficulty of asking

non-leading questions.

During the examination-in-chief, you will:

• introduce your client to the court;

• introduce undisputed facts;

• put forward your client's view of the disputed facts; and

• lay down the foundation for the introduction of your exhibits.

1 RSO 1990, Chapter E 23. 2 O. Reg 258/98. 3 Sidney Lederman, Alan Bryant and Michelle Fuerst, The Law of Evidence in Canada (Markham: LexisNexis

Canada Inc, 2014) at 51.

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The purpose of evidence obtained at examination-in-chief is to:

• introduce your case and your witness to the court;

• weaken your opponent's case through your witness;

• strength or weaken the credibility of other witnesses by the credibility of your witness.4

Issues to Consider in Examination-in-Chief

Competence of Witnesses

The purpose of competency is to exclude at the beginning worthless testimony, on the ground

that the witness lacks the basic capacity to communicate evidence to the court.5 Generally, every

person is a competent witness to give evidence in a civil case and any competent witness is

compellable to come before the court to give evidence.6

Non-Leading Questions

As a general rule, a party that calls a witness may not ask leading questions. The most common

form of leading questions is one which suggests the answer.7 A less common form is a question

which assumes a fact in dispute.8

Exceptions to the General Rule

The rule against asking leading questions is not absolute. In certain circumstances, it is okay to

ask leading questions:

• Leading the witness on non-contentious or introductory matters (age, residence, work

history, etc.)

• Leading a hostile witness – a witness, called by counsel, who by demeanor or manner is

refusing to testify willingly. The trial judge must determine a witness is hostile before

you can ask leading questions.

4 Supra, note 3 at 1126. 5 R v D.A.I., 2012 SCC 5 at para 16. 6 Supra, note 3 at 869. 7 Supra, note 3 at 1127. 8 Supra, note 3 at 1127.

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• Leading a witness who could not otherwise testify coherently without the leading

questions.

• Identifying persons or things and drawing the attention of the witness to them.9

Try to avoid leading your own witness as it can make your witness seem less credible and their

testimony less reliable. It is important for you to explain to your witness that the judge wants to

hear their evidence. Sometimes, the witness will become too reliant on you to "lead" them

through their evidence. They should tell their story (minus non-relevant or overly detailed facts)

in their own words. You help them by the use of who, what, when, where, why and how. If you

get nervous, then just start your questions with one of these words and chances are you will not

be asking leading questions.

Opinion

Avoid asking your witness for their opinions or speculations on the evidence or events.

Generally, a witness may only testify to facts within their knowledge, observation and

experience. However, a lay witness will be permitted to give an opinion on matters that do not

require special knowledge.

Refreshing Recollection

The most common way to refresh or revive a witness' memory is by reference to a written

document. However, refreshing a forgetful witness' memory can be done with anything that

triggers the recollection.10 A witness who has no independent memory of the event can refer to a

written document that was prepared contemporaneously with the event. The four conditions of

admissibility in circumstances where the witness has no independent memory are:

1. a reliable record either prepared by the witness personally or reviewed by the witness for

accuracy;

2. timeliness - a record made or reviewed while the event was sufficiently fresh in the

witness' mind;

3. an absence of present recollection of the events; and

9 Supra, note 3 at 1129. 10 Supra, note 3 at 1143

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4. the witness can verify that he or she was being truthful at the time the statement was

recorded.11

Planning Your Examination-in-Chief

The goal of your examination-in-chief should be to draw out facts and evidence that you require

to prove or support your theory of the case. You need to consider what facts you need, why and

how you are going to introduce the evidence to prove those facts. You need to consider what

facts each witness can prove and what documentary evidence (if any) can be used to support that

testimony. *Be careful regarding the documentary evidence, if it turns out that is not admissible,

consider what other options you have for introducing that evidence.

Consider the following questions:

• Why am I calling this witness?

• Which part of the claim/issues will this witness address?

• How can this witness be used to weaken the claim of the other party?

• How does this witness support the theory of the case?

• Can this witness bolster or detract from the credibility of others who will testify?

• What is the most important thing this witness has to say?

• Are there collateral facts that make what this witness has to say more believable?

Make a checklist of the key facts and evidence required to support your theory of the case.

Consider what facts may be unnecessary or may have a negative impact on your case, including:

• unimportant details that may detract from your main point;

• facts that are likely to be successfully disputed such as testimony that is easily

contradicted by credible documentary evidence;

• facts that, despite their truth, are implausible and may affect the credibility of the witness;

• statements that are open to contradiction by your witness' prior statements;

11 R v Richardson, 2003 CanLII 3896 (ONCA) at para 24.

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• testimony that opens the door to questions on cross-examination that otherwise would not

be allowed. As an example, bringing up facts about the good character of your witness

that then allows evidence to be brought to discredit this testimony.

Organization and Structure of Examination-in-Chief

Make a chart for each witness with headings related to each issue/claim and the questions you

need to ask that witness on that issue with reference to any supporting documents. (*Also have a

separate chart regarding your documentary evidence and why and how that documentary

evidence is administered.) During the examination, keep a checklist of the evidence and facts

that you need to prove your theory and keep track of what you have and have not yet proven.

The placement and sequence of information from your witness can strengthen and clarify its

value. Start your examination strong and end strong. Critical information from your witness

should be obtained at the beginning and the end with less critical information provided in the

middle. Keep in mind, people tend to remember what they hear first and last.

Spend more time on the critical and important matters. The amount of time spent on an issue

signifies how important it is to the listener. Try not to dwell on less important details or you may

leave the trier of fact confused as to the relevance of the information.

Find ways to confirm your important points throughout the examination-in-chief, but do not be

needlessly repetitive or redundant.

Let your witness' examination flow and do not disrupt or interrupt your witness during their

testimony unless it is necessary. Don't leave it to the court to decipher relevance.

Always end with a fact that encapsulates your theory of the case or message for the trial. Make

sure the fact is admissible, simple, and memorable.

Documentary Evidence

Rule 18 of the Rules of the Small Claims Court governs evidence at trial.12 Rule 18.02 is

commonly used to admit documents in Small Claims Court. Always meet these timelines, you

12 Supra, note 2 at r 18.

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do not want to start a trial explaining why you failed to produce a document in the times

required. The court, however, does have discretion to order otherwise (but again try always to

start off on the best foot by having done everything within the required timelines). The rule also

requires that a party who relies on this rule, to append or include in the statement or document

the name, telephone number and address for service of the witness or author of the document. If

the witness or author is giving expert evidence then, in addition, a summary of the expert

witness' qualifications must be included. Provided the requirements of Rule 18.02 are followed,

the evidence should be admissible without the need to present the witness or author to testify in

person.13

Admission of evidence through other means is still possible such as through an in-person

witness.14 To bring a document into evidence outside of Rule 18.02, the document needs to be

authenticated. The trial judge needs to be satisfied that there is a sufficient basis to support the

identification of the exhibit, its continuity and its integrity.15 The Court wants to ensure

decisions are made on the basis of relevant and necessary documents in the proper course.

Authentication of Documents

Documents can be authenticated in a number of ways and usually requires proof of authorship or

origin.

Handwriting and signature

For example, a signature or handwriting on a document could be authenticated by calling a

witness who can recognize the signature based on past observations or on circumstantial

evidence, and/or

• calling a witness who can show sufficient familiarity or expertise of the handwriting

of the writer, such as a person who has seen the writer's signature many times and can

recognize the handwriting.

13 Justice Marvin A. Zuker and Sebastien Winny, Ontario Small Claims Court Practice, (Toronto: Thomson Reuters

Canada, 2017) at 820. 14 Supra, note 16 at 827. 15 Supra, note 16 at 827.

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Typed Documents/Printouts

The Rules of the Small Claims Court defines document to include data and information in

electronic form.16 These documents can be authenticated by circumstantial evidence including

such things as company letterhead, a seal, a stamp, or the use of the document. The authenticity

of the document may also be confirmed by circumstantial evidence.17 As an example, letters that

have been received in reply to earlier correspondence are accepted as being made by the sender.

Photographs or videotapes

Admissibility depends on:

• accuracy in representing the facts;

• fairness and absence of any intention to mislead; and

• verification on oath by a person capable of doing so.18

The person verifying the authenticity does not necessarily have to be the photographer or

videographer. Others who can verify the photograph or video may include eye-witnesses of the

event.19

Best Evidence Rule

Generally, the rule is that the content of a document needs to be proven by producing the

original, unless the original is lost, destroyed or unavailable. The rule requires a party relying on

the words used in the document to adduce evidence of its contents by producing the original

document as opposed to a copy.20

Hearsay

Hearsay is an out-of-court statement that is being relied upon for the truth of its contents. A

common example of hearsay is where a witness testifies as to the statements of someone else

16 Supra, note 2 at r 1.02 [document]. 17 Supra, note 16 at 821. 18 Supra, note 16 at 821. 19 Supra, note 16 at 821. 20 Supra, note 3 at 1257-58.

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who is not before the court.21 The concern of hearsay evidence is the inability to test the

reliability of that evidence.

Rule 18.02 is a statutory exception to the hearsay rule and permits a document to be admitted in

Small Claims Court as evidence for the truth of its contents.22 Provided the requirements of Rule

18.02 are followed, the party introducing the document does not need to call the authors of the

document or other in-person witness to authenticate or prove the document.

Conclusion

Preparation and organization are the keys to a successful trial experience. Understanding

your case, the facts and evidence to support your theory will go a long way in properly adducing

the evidence you require from your witness.

Please see the next page for a quick and handy checklist of Do's and Don'ts during examination-

in-chief of your own witness.

21 Supra, note 3 at 237. 22 Supra, note 16 at 827.

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Check List of Do's and Don'ts23

� Determine your goals: what are the facts you need to prove or disprove. Consider which

witness can provide this evidence during examination.

� Build a theory of your case: consider the evidence each witness is likely to give and ensure

your theory of the case is supported by their testimony. If it is not, revise your theory.

� The examination should flow easily: let your witness tell their story. Keep your questions

logical and easy to follow. Following the chronology of events is a common strategy.

� Set the stage first: set up the scene before your witness describes the action of the events.

� Go back and explain or clarify if needed: if your witness has missed a detail, then guide

the witness back for clarification or explanation. Do this especially for key evidence.

� Ask simple and uncomplicated questions: use natural language and keep your questions

short and simple.

� Ask open-ended questions: open-ended questions leaves the witness to fill in the details and

provide an explanation. Open-ended questions include: who, what, where, how, when and

why.

� Be an active listener: listening actively to the responses from your witness ensure you are

responding to their answers and to their behaviours.

� Keep a checklist of the evidence you need for your theory of the case: check off the

points on your checklist as you hear them and double check you have everything from your

witness before you complete their examination.

� Be mindful of the judge: if the judge is writing then give him or her time to finish before

moving on to the next question. Watch the judge for other helpful cues.

� Don't unnecessarily interrupt the witness: give the attention of the court to the witness. If

your witness is going off track, guide them back by asking them for details on the parts of

their story you need them to focus on.

� Don't ignore bad facts: dealing with bad facts during examination-in-chief gives your

witness an opportunity to explain them. If you ignore bad facts the court may draw an

adverse inference about why your witness did not testify about them.

23 Adapted from, Todd Robinson, "The Do's and Don'ts of Drafting Pleadings, Examination-In-Chief and Cross-

Examination, The "Art" of Cross-Examination", Small Claims Court Update 2010, Law Society of Upper Canada.

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Best Practices for Adducing Evidence from Your Own Witness

Jacqueline L. King, Shibley Righton LLP

Evidence in Small Claims Court for Paralegals, Law Society of Upper Canada

June 5, 2017

•Introduce undisputed facts

•Establish your client’s view of any disputed facts

•Lay the foundation for the introduction of exhibits

•Who created

•How obtained

PURPOSE OF THE EXAMINATION-IN-CHIEF

The purpose is to

•Build or support your party’s case

•Show any inconsistencies in your opponent’s case

•Strengthen the credibility of your witness

•Strengthen or weaken the credibility of other witnesses

PURPOSE OF THE EXAMINATION-IN-CHIEF

ISSUES TO CONSIDER IN EXAMINATION-IN-CHIEF

Competence

•Every person is a competent witness to give evidence in a civil case and any

competent witness is compellable

•Are there any issues re the competence of any witness?


Ask Non-Leading Questions

•A leading question is one that suggests the answer or that assumes a fact in

dispute

Exceptions to the General Rule

•Non-contentious or introductory matters

•Hostile witness

•Witness who could not otherwise testify coherently


Opinion

•Witness may only testify to facts within their knowledge, observation and

experience

•Expert opinion

Refreshing Recollection

•Reference to a written document or anything that triggers the recollection

•No independent memory but has a written document prepared

contemporaneously with the event

PLANNING YOUR EXAMINATION-IN-CHIEF

Ask yourself the following

•Why am I calling this witness?

•Which issues will this witness address?

•Does the evidence of this witness weaken the claim of the other party?

•How does this witness support the theory of the case?

•Can this witness bolster or detract from the credibility of others who may testify?

•What is the most important thing this witness has to say?

PLANNING YOUR EXAMINATION-IN-CHIEF

Unnecessary or Negative Facts

•unimportant details (watch out for too many – they detract)

•facts that are likely to be successfully disputed

•facts that, despite their truth, are implausible and may affect credibility

*statements that are open to contradiction by prior statements of the witness

•testimony that opens the door to questions on cross-examination that otherwise

would not be allowed

ORGANIZATION AND STRUCTURE

•Make a chart – Make a chart – For sure, make a chart!!

•Keep a checklist of the evidence and facts for your own purposes

•Consider the placement and sequence of information

•Start and end strong (essential)

•Spend time on the critical and important matters

•Get to the point

•Clinch it at the end

DOCUMENTARY EVIDENCE

Authentication of Documents

•Handwriting and Signature

•Typed Documents/Printouts

•Photographs or videotapes

Best Evidence Rule

•Produce the original, unless the original is lost, destroyed, or unavailable

DOCUMENTARY EVIDENCE

Hearsay

•Out-of-court statement that is being relied upon for the truth of its contents

QUESTIONS?

TAB 5

Cross Examination Tactics

Asfrah Syed-Emond Syed-Emond Lawyers

June 5, 2017


FOR PARALEGALS

Evidence in Small Claims Court for Paralegals

June 5, 2017

Cross Examination Tactics

Asfrah Syed-Emond

Syed-Emond Lawyers

Introduction

The purpose of a cross examination is to challenge the opponent’s version of the facts, and to

possibly illicit facts that will support your client’s case. It takes place immediately after the direct

examination of the witness. You have no opportunity to “practice” with the other side nor do

you know what the witness may say.

There are two reasons you want to cross-examine someone:

1. You want to have the witness say something that will help your case; you want to elicit

favourable testimony from the witness;

2. You want the witness to give testimony that may discredit testimony given by that very

witness while they were in direct examination.

There are different tactics or styles that you can utilise when conducting a cross-examination. At

the end of the day you have to find what your style is and what works for you.

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You need to select the target areas of your cross examination. A cross examination requires that

you be well prepared. Each question should have a purpose. You need to be organized, and ask

leading questions. The worst thing you can do in a cross is to ask the witness an open question

where you then give them an opportunity to provide an explanation. For example: Why did you

think the traffic light was green?

Finally, if the witness has not said anything that will damage your case or your version of the

facts, you may not want to cross-examine them. You need to be well prepared to know what you

have to prove to establish your case to make that decision-- to cross or not to cross?

Today, I will address the following issues:

1. Cross-examination preparation prior to the trial;

2. Preparation during the trial; and,

3. Formulating your questions.

Preparation prior to trial:

The best way to prepare for a cross examination is to know the facts of your case well. You then

need to think about “why” the other side is calling this particular witness and then select your

target areas of questions.

You can also prepare for cross-examination by knowing your witnesses well. You may want to

put their credibility at issue as a way to discredit their testimony in chief. Every witness puts their

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credibility at issue when they take the witness stand. Once you have received the witness list

from the other side, you may consider looking into the witnesses the other party is calling in

direct.

Your cross examination may be designed to “impeach” a witness by uncovering prior inconsistent

statements. When you discover a contradiction between something the witness said in a prior

statement and what they may have said during their direct examination, the time to address this

is in cross-examination. This will go the witnesses credibility and their reliability.

- “By showing bias, prejudice, interest, or corruption;

- By attacking the character of the witness through raising prior convictions, prior bad

acts, or poor reputation;

- By contradicting the witness through previous inconsistent statements;

- By challenging the witness’ capacity to observe, recall, and communicate accurately;

- By putting contrary evidence to the witness; and

- By showing that the witness’s evidence is contrary to common experience.”1

All of the above are useful tools to assess how to put into question a witnesses credibility and

reliability.

1 David Paciocco and Lee Stuesser, The Law of Evidence, (Toronto: Irwin Law, 1996) at

222.

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Pursuant to section 10 and 11 of the Canada Evidence Act2 one must lay a proper foundation

prior to introducing inconsistent statements:

Cross-examination as to previous statements

10 (1) On any trial a witness may be cross-examined as to previous statements that the witness made in writing, or that have been reduced to writing, or recorded on audio tape or

video tape or otherwise, relative to the subject-matter of the case, without the writing being shown to the witness or the witness being given the opportunity to listen to the audio tape or view the video tape or otherwise take cognizance of the statements, but, if it is intended to contradict the witness, the witness’ attention must, before the contradictory proof can be given, be called to those parts of the statement that are to be used for the purpose of so

contradicting the witness, and the judge, at any time during the trial, may require the production of the writing or tape or other medium for inspection, and thereupon make such

use of it for the purposes of the trial as the judge thinks fit.

Deposition of witness in criminal investigation

(2) A deposition of a witness, purporting to have been taken before a justice on the investigation of a criminal charge and to be signed by the witness and the justice, returned to and produced from the custody of the proper officer shall be presumed, in the absence of evidence to the contrary, to have been signed by the witness.

R.S., 1985, c. C-5, s. 10;

1994, c. 44, s. 86.

Cross-examination as to previous oral statements

11 Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.3

R.S., c. E-10, s. 11.

2 Canada Evidence Act, R.S.C., 1985, c. C-5 3 Canada Evidence Act, s. 10, 11, RSC 1985, c C-5, <http://canlii.ca/t/52hk6> retrieved on 2017-05-

14

5 - 4

Preparation during trial:

You need to be listening to what the witness is saying in their direct examination. You also need

to be listening during your cross—do not make the mistake of thinking about your next question.

It is imperative that you are actively listening to the testimony of the witness. While the direct

of a witness is occurring you should be taking notes especially in the “target” areas you are

interested in crossing on. You should also be observing the demeanour of the witness. Their

movements when answering certain questions—knowing if they have a “tell”.

Formulating your questions:

The manner in which one can succeed in a cross is to ensure you have the control. The moment

you give up the control to the witness you are losing your cross. The tactic you must employ to

control your witness is to utilize “leading questions”. You are generally not going to be permitted

to use leading questions in a direct; however, you can in cross.

Leading questions: you suggest the desired answer and if the questions are short and can be

answered with a “yes” or “no” you are even further ahead.

Your questions should be relevant to a fact in issue or to credibility. Your questions should not be

repetitive and should not be geared to harass the witness.4

4 Ed Ratushny, “Basic Problems in Examination and Cross-Examination” (1974) 52.2 Can.

Bar Rev. 209 at 233

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The best practice on how conduct a proper cross-examination is— by doing them!

Conclusion

Many individuals find cross-examination to be the most difficult part of their case. This is because they think that they must somehow "break down" the witness and force the witness to admit the other side is right. If your goals are less ambitious, you will find cross-examination useful. Cross-examination is not meant to insult or aggressively attack the witness. Do not think you can prove your case through cross-examination.

Cross-examination is best used to bring out information that the witness has which is important to help prove things you need to prove to win your case and to “test” the information they have provided during their direct examination. For example, take a look at our fact scenario. The Plaintiffs hired the Defendants to complete a bathroom renovation. The renovation was not completed properly and there are many issues since it was allegedly completed. What you need to prove as the Plaintiff is that the contractor failed to take reasonable steps to complete the renovations properly. On cross-examination you might get the contractor to admit that they did not take the proper steps to install the shower system properly. Perhaps they needed to have a certified installer for this very specific shower system.

Cross-examination is also used to try to weaken the other side's case by making the witnesses' evidence seem less believable, or by reducing the importance of the witnesses' evidence.

In conducting cross-examination, remember that you should never “argue” with the witness.

To close I will leave you with words from Professor Ed Ratushny, the purpose of cross-examination is:

“to weaken, qualify or destroy the case of the opponent; and to establish the party’s own case by means of his opponent’s witness.” 5

5 Ed Ratushny, “Basic Problems in Examination and Cross-Examination” (1974)

52.2 Can. Bar Rev. 209 at 232

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Cross-Examination of Plaintiff from fact pattern: Armstrong v. Your Reno Guys Inc.:

Q: Would you agree that drainage involves plumbing? YES / NO

Q: I understand that your brother-in-law completed the rough plumbing work by December 1,

2014? YES /NO

Q: Is your brother-in-law a licenced plumber? YES/NO

Q: if answers “yes” to above: “then why did he not see the alleged drainage issue?”

Q: if answers “no” to the above: leave it alone and move on- you have established that

work was completed by un-licenced workers and you can now conclude in your

submissions that the work was shoddy at best by the original workers, and not you.

Q: In your Email of Jan. 6, 2015 did you mention a drainage issue with the bathtub? YES /NO

Q: Is it not true that you sent an Email to the Defendants stating you had been using the shower

since at least Jan. 19, 2015? YES /NO

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TAB 6

Effective Use of Demonstrative Evidence in Small Claims Court Trials


Jenny Freitas, Law Clerk McLeish Orlando LLP

June 5, 2017


FOR PARALEGALS

Effective use of Demonstrative Evidence in Small Claims Court Trials

By Will Keele Jenny Freitas Law Society of Upper Canada

June 5, 2017

1) Introduction

As counsel, the more assistance you can provide to help the Judge to remember

and organize information, the more you are going to ensure a quality judgment.

Humans are very effective visual learners, and advocates who understand this and

make effective use of demonstrative evidence will obtain better results.1

The purpose of this paper is to help you use demonstrative evidence effectively in

Small Claims Court trials. The paper will explain what demonstrative evidence is,

and explain the difference between different types of demonstration evidence. It will

then address some of the reasons you may want to use demonstrative evidence.

The paper will then address the admissibility of demonstrative evidence, before

providing some simple tips for the effective use of demonstrative aids in Small

Claims Court trials.

2) What is Demonstrative Evidence Demonstrative evidence has been defined as “evidence used to explain, illustrate or

clarify other testimony or real evidence2. Alternatively it is defined as: “Evidence,

usually visual, presented to the trier of fact which is relevant to the matters in issue

in the absence of oral testimony or circumstantial evidence.”3

Demonstrative evidence can be further divided into real evidence (substantive

evidence) and illustrative aids.

Real evidence is non-testimonial evidence that “in its widest meaning includes any

evidence where the court acts as a witness, using its own senses to make

1 Damian Rogers, “Powers and Dangers of Demonstrative Evidence” (Autumn 2004) 23 Advocates’ Soc. J. at 14-20. 2 Bryan A. Garner, ed., Black’s Law Dictionary, 9th ed. (West Group, 2009); Ryan A. Murray, “Producing In House Demonstrative Aids on a Budget”, delivered at the OTLA 2008 Fall Conference, “Road to Trial: Successful Trial Strategies.” 3 Olah, John A. “The Art and Science of Advocacy (Toronto: Thomson Carswell, 1990) at 11-4

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observations and draw conclusions rather than relying on the testimony of a

witness.4 This evidence facilitates the drawing of conclusions. Real evidence can

include the actual object involved in the incident that gave rise to the lawsuit, for

example the defective chair that gave rise to a product liability suit against a

manufacturer.

Some other examples of real evidence include the following:

The specific weapon used in an assault.

Injuries to a witness’/party’s body

A photograph depicting damage to an automobile after a collision

A videotape of an assault.

An audio recording of a conversation or event.

In contrast, illustrative evidence helps to illustrate, explain, highlight or summarize

other evidence adduced at trial.5 Unlike real evidence, illustrative evidence has no

inherent evidentiary value. Rather, illustrative evidence serves to improve

understanding or memory retention and therefore assists the judge in making his or

her ultimate findings of fact.

In his seminal text On Trial, Geoffrey Adair explains: These “aids”…do not constitute evidence in the classic sense. The trier of fact is not free to draw independent conclusions from demonstrative aids but is only free to utilize same to better understand or remember the evidence of a witness from which the actual conclusions of fact will be drawn.6

Some examples of illustrative evidence include:

Attendance or payment charts, illustrating the timing of and types of

attendances/absences or the amounts and frequency of payments.

4 Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham, On:LexisNexis Canada, 2009) at p. 44. 5 McLeish, J., Oatley, R. The Oatley-McLeish Guide to Demonstrative Advocacy (Markham: Lexis Nexis Canada Inc. 2011) at pg.4. 6 Adair, G. On Trial; Advocacy Skills Law and Practice (Markham: Lexis Nexis Canada Inc., 2004) (2nd Edition) at pg. 26.

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Anatomical models or illustrations used by medical witnesses to illustrate

the nature of an injury and its effects on the plaintiff.

Surveys or maps.

Models or illustrations used by other experts such as engineers or

technicians to help the judge understand how a particular device functions

or operates.

Flowcharts illustrating the relationships of people or organizations

Scale Diagrams

Computer simulations or re-enactments of the events in question.

3) Why you want to use demonstrative evidence In his text, the Art and Science of Advocacy, author John Olah explains:

Demonstrative evidence is a very potent tool of advocacy. Its power is founded on a psychological phenomenon that allows the trier of fact…to retain more information when the information is presented pictorially in connection with oral evidence. Accordingly demonstrative evidence should be used at every reasonable opportunity.7

Demonstrative evidence is useful for a number of purposes. Some of the most

important benefits of using demonstrative evidence are as follows:

1) Improves memory retention.

2) Shows and demonstrates things far more effectively than they can be explained

orally.

3) Breaks up the monotony of oral evidence and submissions, and creates

excitement.8

There are a number of theories about what makes demonstrative evidence so

persuasive. Most commonly these theories address the ways that humans learn and

7 Olah, John A. “The Art and Science of Advocacy (Toronto: Thomson Carswell, 1990) at 8-19. 8 McLeish, John A. “The Use of Demonstrative Evidence in a Personal Injury Case” Special Lectures of the Law Society of Upper Canada (Toronto: Law Society of Upper Canada, 2000) at 89.

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remember, as well as the immediacy of experience. A brief description of these

theories is set out below.

i) How does it work

a. Learning theories:

There are three basic types of learners. Some people are visual learners. Some are

auditory learners, and some are kinaesthetic or tactile learners. Using demonstrative

evidence to present the information visually, orally and in some cases tactilely

increases the likelihood of effectively reaching all learners.

Aside from ensuring better retention of more information, the use of visual aids can

also ensure greater comprehension. Allowing the judge to both see and hear the

evidence will generally result in improvements in comprehension and understanding. 9

b. Memory retention theories A number of studies show that people remember things that they see better than

things that they hear.10 Someone who has information presented orally will retain 70

percent of it after three hours, and only 10 percent after 72 hours. In contrast, an

individual who is both told and shown a visual representation of the information, will

retain 65 percent of the information even after 72 hours.11 Other studies suggest that

people may immediately forget as much as two thirds of what they simply hear. The

importance of this is clear. It goes without saying that in making decisions, the trier

of fact cannot consider information that he or she does not remember.12 Finally,

some studies indicate that the greater the complexity of information, the lesser the

comprehension and memory retention. Therefore it is important for counsel to deliver

9 Cate, F.H. and Minow, N.N., “Communicating with Juries” (1993) 68 Ind. L.J. 1101 at 1114. 10 Nisbett, Richard & Ross, Lee, Human Inference: Strategies and Shortcomings of Social Judgment 47 (1980), Turley, Windle, Effective Use of Demonstrative Evidence – Capturing Attention and Clarifying Issues, Trial, Sept. 1989, at 62. 11 Weiss-McGrath “Using Graphics in Court: An Art in Itself”(1986) 22 Trial (ATLA Magazine) No. 177. 12 Boyll, Jeffery R., Psychological, Cognitive, Personality, and Interpersonal Factors in Jury Verdicts, 15 Law & Psychol. Rev. 163, 173 (1991)

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complex information as simply and succinctly and to use the most attention getting

method possible. Demonstrative evidence is uniquely suited to achieve this goal.13

c. Immediacy of experience

In his text McCormick on Evidence, the author opines that since demonstrative

evidence appeals directly to the senses of the trier of fact, this type of evidence

gives immediacy and lends reality to make it particularly persuasive. People who see

something become involved in an experience of the evidence, and remember it.

One goal of oral advocacy is to help the trier of fact form mental pictures or images.

Words alone convey ideas indirectly at best. In contrast, actual pictures are directly

seen by the deputy judge. Through the use of demonstrative aids the presenter gets

the advantage of greater control over the mental picture being developed. For

instance if the judge is asked to picture a roof, he or she will picture any roof that

comes to mind. Even if a counsel provides specific details in describing the roof, the

judge’s mental picture of that roof will be somewhat different; however a photo of a

grey shingled, 45 degree slope roof, with 2 holes in it will directly convey an exact

mental picture to the deputy judge without any need for further explanation.14

Proximity is a term that refers to how many mental steps the judge must take to

understand the information being presented. Information perceived visually is more

easily believed and understood and has a greater impact than the same information

derived from a verbal account. The reason is that visual information is direct. In

contrast, verbal information is indirect and abstract.15

13 Berkoff, Adam T., Computer Simulations in Litigation: Are Television Jurors Being Misled, 77 marq L. Rev 829, 845 (1994) 14 Galves, Fred, Where the Not-So-Wild Things Are: Computers in the Courtroom, The Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, Harvard Journal of law & Technology, Vol., No. 2, Winter 2000. 15 Kolber, Mark, Just Picture It: Advocacy and Computer-Generated Presentations. COLO. LAW., Dec. 1997, at 29, Feltovich Paul J. et al., The Reductive Bias and the Crisis of Text in the Law, 6 J. Contemp. Legal Issues 187.

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4) Admissibility of Demonstrative Evidence16 Specific types of demonstrative evidence will raise specific issues of admissibility.

Factors that may influence whether a photograph or summary chart is admissible are

different than those that will affect the admissibility of computer animation or simulation.

There are however general outlines for the admissibility of demonstrative evidence.

Demonstrative evidence is generally admissible when the following conditions are met:

1) Where it is relevant to the issues in dispute in the lawsuit,

2) Where there is verification of the accuracy of the demonstrative aid in

representing what it purports to represent,

3) Where the court may be satisfied that the use of the demonstrative aid is

reasonably necessary to help illustrate or explain other evidence, and

4) Where its prejudicial effect does not outweigh its probative value.17

These factors are briefly discussed below:

a) Relevance:

No evidence is admissible unless it is relevant.18 Relevance can be defined as the

relationship between a piece of evidence and a fact in issue in the case. It is assessed

as a matter of common sense and logic.19 In R. v. Truscott, a 2006 decision of Ontario’s

Court of Appeal, the court held:

Evidence is relevant if, as a matter of logic and human experience, it renders the existence or absence of a material fact in issue more or less likely…Evidence will be irrelevant either if it does not make the fact to which it is directed more or less likely, or if the fact to which the evidence is directed is not material to the proceedings.20

16 This section borrows liberally from Troy Lehman’s excellent paper, Demonstrative Evidence: The Law – Principles and Definitions, McLeish, J. Oatley, R, Oatley- McLeish Guide to Demonstrative Advocacy (LexisNexis: Toronto 2011) 17 Draper v. Jacklyn, [1970] S.C.R. 92 at p. 97, Adair, G. On Trial; Advocacy Skills Law and Practice (Markham: Lexis Nexis Canada Inc., 2004) (2nd Edition) at pg. 29. 18 Fuerst, M; Sanderson, M.A., Ontario Courtroom Procedure, 3d Ed. (Markham, ON: Lexis Nexis Canada Inc., 2012) 19 Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham, On:LexisNexis Canada, 2009) at 51. 20 [2006] O.J. No. 4171 (C.A.)

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In civil cases, the facts in issue are delineated by the pleadings. Any evidence that is

found to be relevant is prima facie admissible21

Aside from being relevant, demonstrative evidence must be accurate and fair in order to

be admissible.

b) Verification of Accuracy

For real evidence, accuracy and fairness amount to authenticity. Counsel must prove

that the evidence is really what it purports to be.22 For example, before a knife used in

an assault can be admitted into evidence, there must be evidence that the knife is the

one used in the assault, and that it has not been altered or modified in any way (this is

the concept of continuity).

Photographs and video evidence must be proven to be a fair and accurate depiction of

what they depict in order to be admitted into evidence. This usually necessitates oral

evidence from a witness establishing that the photograph or video accurately and fairly

depicts what it purports to show. Evidence will not be admitted if it is misleading, or

distorted. In R. v. Creemer and Cormier, the Nova Scotia Court of Appeal held:

[The] admissibility of photographs depends on (1) their accuracy in truly representing the fact; (2) their fairness and absence of any intention to mislead; (3) their verification on oath by a person capable to do so.23

It is not necessary that the person testifying as to the accuracy and fairness be the

photographer or videographer. All that is necessary is that the witness has actual, first-

hand knowledge concerning the subject matter of the video or photograph. In addition,

evidence may be found to be fair and accurate in the absence of oral testimony from a

witness, provided that there is evidence to show that it is fair, unbiased and reliable. For 21 Ibid. 22 Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham, On:LexisNexis Canada, 2009) at 45. 23 Creemer v. Cormier, [1967] N.S.J. No. 3 at para. 18.

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example in the 1995 Ontario Superior Court decision R. v. Lahay, Justice Tobias held

that automatic video surveillance evidence was admissible into evidence “so long as the

framework in which it was produced can be shown to be fair , unbiased and reliable.”24

Illustrative evidence must also be shown to be accurate and fair in order to be admitted

into evidence. For example, a chart of absences or financial remuneration must be

shown to be an accurate and fair summary of the oral or documentary evidence on

which it is based.25 This may be accomplished through oral testimony verifying the

accuracy of the information contained in the chart, by a witness familiar with its content.

If the illustrative aid is misleading or contradicts the records on which it is based it will

likely be held to be inadmissible.

c) Helpfulness of Illustrative Evidence A number of commentators have opined that in order to be admissible, illustrative

evidence must be shown to be helpful in illustrating or explaining other evidence. The

party tendering the illustrative evidence must “satisfy the court that the use of the

demonstrative aid is reasonable necessary to help illustrate or explain the evidence of a

live witness.

In his excellent paper, Demonstrative Evidence: The Law – Principles and Definitions,26

Troy Lehman argues that this criterion is easily met for most forms of illustrative

evidence. He cites the example of summary charts, including treatment charts or

chronologies as helpful summaries of voluminous medical records. In Calic v. Ontario,

Justice Hockin described the use of a treatment chronology as follows “counsel for Mr.

Calic usefully summarized the history by tracing Mr. Calic’s five year journey from one

specialist to another.”

24 [1995] O.J. No. 4299 at Para. 9 (Ont. Gen. Div) 25 Calic v. Ontario, [1996] O.J. No. 154 (Ont. Gen. Div) 26 Lehman, T, Demonstrative Evidence: The Law – Principles and Definitions, McLeish, J., Oatley, R. The Oatley-McLeish Guide to Demonstrative Advocacy (Markham: Lexis Nexis Canada Inc. 2011)

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In most cases illustrations and animations are very effective in simplifying and depicting

the complicated evidence of expert witnesses, while improving the efficiency of trials.

d) Prejudicial Effect is Not Outweighed by its Probative Value

In Small Claims Court, the deputy judge has discretion to exclude evidence if, in his or

her opinion, the evidence’s prejudicial effect outweighs its probative value. In Draper v.

Jacklyn, Justice Spence opined:

The occasions are frequent upon which a judge … is called upon to determine whether or not a piece of evidence technically admissible may be so prejudicial to the opposite side that any probative value is overcome by the possible prejudice and that therefore he should exclude the production of the particular piece of evidence….The matter is always one which is difficult for the trial judge and in itself essentially a decision in which the trial judge must exercise his own carefully considered personal discretion.27

This determination is a cost benefit analysis. Therefore where graphic or shocking

demonstrative evidence is of marginal relevance, it is more likely excluded. Despite this,

commentators have indicated that evidence is not frequently excluded on the basis of its

inflammatory nature in civil cases: One would expect that the circumstances in which a judge in a civil case would exclude evidence because of its inflammatory nature would be rare. People today, because of their exposure to television and motion pictures, can be expected to be much less sensitive to graphic displays of injuries than the average nineteenth or early twentieth century citizen.28

5) How to Introduce Demonstrative Evidence

The way in which demonstrative is presented varies depending on the type of the

evidence. Below are two examples:

a) Small photographs29

The steps involved in introducing small photographs as exhibits in court are as follows: 27 Draper v. Jacklyn, [1969 S.C.J. No. 70, at 96-97. 28 Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham, On:LexisNexis Canada, 2009) at 37. 29 T.A. Mauet et al., Fundamentals of Trial Techniques, Canadian edition (Toronto: Little, Brown & Co., 1984), at 149

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Step 1: Show the exhibit to the witness (assuming that you have already showed the exhibit to opposing counsel)

Counsel: Mr. Duckworth, I am handing you a photographs (walk over to the witness

and hand the photographs to him or place them in front of him) Step 2: Lay the foundation for the Exhibit Q: Mr. Duckworth, have you ever been at the intersection of Queen Street

East and Jones Avenue? A: Yes. Q: How many times have you been there? A: Hundreds of times Q: Are you familiar with the intersection as it looked on February 25, 2015? A: Yes, I am Q: Mr. Duckworth, please look at the photograph that I handed to you. Do

you recognize the scene in that photograph? A: Yes. Q: Can you tell me what the photograph depicts? A: The photograph shows the intersection of Queen Street East and Jones

Avenue, in Toronto, Ontario Q: Mr. Duckworth, do these photographs fairly and accurately portray the

scene, as it appeared on February 25, 2015? A: Yes they do. Step 3: Move for admission of the exhibit into evidence. Counsel: Your Honour, may these photographs be marked as exhibit 1? Deputy Judge: Any objection counsel? Opp. Counsel: States any objections Deputy Judge: Exhibit 1.

6 - 10

Note: If the witness in the box is not the last of a series of witnesses required to establish the necessary foundation for the exhibit, you may have the exhibit marked as an exhibit for identification. The usual practice is to use letters of the alphabet for such exhibit.

b) A large chart or graph30 Summary charts or timelines are very useful and cost effective pieces of demonstrative evidence. They may be used to describe a plaintiff’s treatment or employment history Step 1: Show the exhibit to the witness (assuming that you have already showed the

exhibit to opposing counsel) Q: Maya, I am showing you an attendance chart prepared by my office: Step 2: Lay the foundation for the exhibit. Q: Have you seen this attendance chart before? A: Yes. Q: Where? A: In your office. Q: When? A: 8 days ago. Q: Did you review it very carefully then? A: Yes. Q: Did you compare the dates on the attendance chart with the dates of

attendance contained in your employment records? A: Yes. Q: Is the attendance chart accurate? A: Yes.

30 McLeish, John A. “The Use of Demonstrative Evidence in a Personal Injury Case” Special Lectures of the Law Society of Upper Canada (Toronto: Law Society of Upper Canada, 2000) at 94.

6 - 11

Q: Does the attendance chart contain the dates of all of your absences from work before you were terminated?

A: Yes. Q: Will the attendance chart assist you in giving your evidence? A: Yes. Q: Would you be able to accurately remember all of the dates without the

chart? A: No. Step 3: Move for the admission of the chart into evidence Counsel: Your Honour, may these photographs be marked as exhibit 1? Deputy Judge: Any objection counsel? Opp. Counsel: States any objections Deputy Judge: Exhibit 1.

6) Some Tips for the Effective use of Demonstrative Evidence in Small Claims Court:

It is a good idea to give opposing counsel a chance to review any demonstrative

evidence you intend to use at trial well in advance of the trial date. In this way

counsel will have an opportunity to review the aid and advise if they have any

objections to the use of these materials at trial.31 Early review of illustrative aids

will eliminate arguments during the trial, in front of the deputy judge.

Rule 18.02 of the Rules of the Small Court32 provides that a document or written

statement or an audio or visual record that was served at least 30 days before

the trial date, shall be received in evidence unless the trial judge orders

otherwise. If you intend to use a demonstrative aid to illustrate the content or

31 Ryan A. Murray, “Producing In House Demonstrative Aids on a Budget”, delivered at the OTLA 2008 Fall Conference, “Road to Trial: Successful Trial Strategies.” 32 Small Claims Court Rules. O. Reg. 258/98

6 - 12

importance of any of these documents, it is a good idea to include the aid at the

time you forward these documents to opposing counsel, together with a letter

advising of your intent to use the demonstrative aid. This way there should be no

dispute that the aid accurately represents the records on which it is based.

Place a reasonable limit on the number of demonstrative aides employed in any

given trial. Do not operate on the theory that if one aid is good, then ten aides are

better. Using too many aids during a trial will reduce the effect of each of them. In

addition, if you use too many aids the judge may also think that your case is

superficial. 33

Use carefully prepared “professional looking” aids. A messy-looking, handwritten

chart on paper carries little to no weight. Blurry or poor quality photographs and

video kill the impact that the evidence would otherwise have.34

Make sure that copies of the visual material are either available to the judge or

that the materials is readily visible. The impact is lost when the trier of fact has to

work hard to see the aid.35

7) Conclusion

It is our hope that this paper has illustrated the many potential uses for demonstrative

evidence in Small Claims Court, and helped to clarify the requirements for its

admissibility.

Demonstrative evidence enhances counsel’s ability to communicate with the Deputy

Judge, helps to simplify complicated issues and makes the evidence more

understandable and memorable. Used effectively it will help you make an impression on

the Deputy Judge, and persuade her or him of the merits of your client’s case.

33 Adair, G. On Trial; Advocacy Skills Law and Practice (Markham: Lexis Nexis Canada Inc., 2004) (2nd Edition) at 33. 34 Ibid. 35 Ibid.

6 - 13

TAB 7

Principles of Professionalism for Advocates

Reproduced with Permission by The Advocates’ Society

June 5, 2017


FOR PARALEGALS

Principles ofProfessionalismforAdvocates

Principles ofCivility

forAdvocates

TABLE of CONTENTS

OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

PRINCIPLES of PROFESSIONALISM for

ADVOCATES

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

An Advocate's Duty to Society . . . . . . . . . . . . . . . . . . . . . . . . .5

An Advocate's Duty to the Profession . . . . . . . . . . . . . . . . . . .5

An Advocate's Duty to Clients and Witnesses . . . . . . . . . . . .5

An Advocate's Duty to the Court . . . . . . . . . . . . . . . . . . . . . . .6

An Advocate's Duty to Opposing Counsel . . . . . . . . . . . . . . .6

An Advocate's Duty to Ensure Access to Justice . . . . . . . . . .7

PRINCIPLES of CIVILITY for ADVOCATES

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Relations with Opposing Counsel

General Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Cooperating with Opposing Counsel . . . . . . . . . . . . . . . . . . . . 11

Communications with Opposing Counsel . . . . . . . . . . . . . . . . .11

Promises, Agreements, Undertakings and Trust

Conditions Given to Opposing Counsel . . . . . . . . . . . . . . . . . .11

Cooperating with Opposing Counsel on

Scheduling Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Agreement on Draft Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Conduct That Undermines Cooperation

among Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Conduct at Examinations for Discovery . . . . . . . . . . . . . . . . . .12

Comments Made about Opposing Counsel . . . . . . . . . . . . . . .13

Accommodating Requests from Opposing Counsel . . . . . . . . .13

Communications with Others

Communications with Other Parties and Witnesses . . . . . . . . .13

Communications with the Judiciary Outside of Court . . . . . . .14

Trial Conduct

Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

During Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Best Trial Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Counsel's Relations with the Judiciary

What Judges Can Expect from Advocates . . . . . . . . . . . . . . . .16

What Advocates Are Entitled to Expect of the Judiciary . . . . .17

Table of Contents

OVERVIEW

I commend The Advocates' Society for producing Principles of

Professionalism for Advocates and Principles of Civility for

Advocates. The guidelines contained in this booklet reflect the

experience and good judgment of senior members of the litigation

bar and the judiciary and should be mandatory reading for all

those who practise as advocates.

For as long as I can remember, lawyers have been talking about

the decline in civility and professionalism among members of the

bar. It is frequently said that in the past, lawyers were more pro-

fessional than they are today. They placed greater emphasis on

public service, idealism and the importance of treating every-

body, including their opponents, with courtesy and respect. The

concern these days is that the pressures created by the business

model of legal practice have overridden many of the values which

distinguish a profession from a business.

To its great credit, The Advocates' Society has implemented a

number of initiatives to address this concern. In 2000, it con-

vened a symposium on ways to promote civility. The symposium

led to the creation of what became a very popular booklet entitled

Principles of Civility for Advocates. This booklet has been dis-

tributed in Canada, the United States and other countries and has

been frequently referred to by courts.

In 2008, The Advocates' Society established the Institute for

Civility and Professionalism. The premise of the Institute is that

the fostering of civility and professionalism involves more than a

regulatory regime. Fundamentally it involves the development

and maintenance of a certain kind of culture in the legal profes-

sion. I am honoured that the Society asked me to be the Honorary

Chair of the Institute.

It is noteworthy that the Institute is an initiative of senior mem-

bers of the litigation bar. This is important because it is senior

lawyers who most directly shape the culture of the profession.

No matter how well young lawyers have been taught, if the val-

ues of professionalism are not reinforced in the firms where they

work, they will not take root.

The Advocates' Society believes that a culture where civility and

professionalism are respected and valued can be cultivated

through training and mentoring on an ongoing and persistent

basis. Accordingly, the objective of the Institute is to generate

and monitor opportunities for training and mentoring in civility

and professionalism. Through a separate and permanent Institute,

the Society expects these areas to receive further prominence as

well as focused and specialized attention.

In January 2009, the Institute held a symposium addressing the

principles of professionalism. Senior members of the bar and the

judiciary participated. The symposium was an important first step

in developing a set of principles on professionalism. Those prin-

ciples are intended to complement the principles on civility I

mentioned above. Taken together, they constitute the guidelines

set out in this booklet. They provide a sound, comprehensive

Overview 1 7 - 1

framework to guide all advocates in the manner in which they

conduct their practices.

In conclusion, I commend The Advocates' Society for publishing

this booklet. I am confident that it will make an important con-

tribution towards ensuring that we have the kind of culture in the

practice of litigation that is so important in preserving the honour

and respect that our profession deserves.

The Honourable Dennis R. O'Connor

Associate Chief Justice of Ontario

April 2009

Overview 27 - 2

PRINCIPLES of PROFESSIONALISM

for ADVOCATES

INTRODUCTION

The meaning of legal professionalism is often debated among

academics, practitioners and jurists. It is a difficult concept to

articulate and even more difficult to codify. At a very high level,

professionalism has been defined as an attitude or an approach

that will inform a lawyer in his or her day to day work. Its ele-

ments have been described to include scholarship, integrity, hon-

our, leadership, independence, pride, spirit, collegiality, service

and balanced commercialism. Professionalism is understood to

be at the heart of being an ethical lawyer, and the basis upon

which we uphold public confidence in the justice system and

meet our obligations to serve the public, defend the rule of law,

and promote true access to justice.

While our understanding and definitions of professionalism will

no doubt evolve over time, our challenge today is to effectively

promote and sustain the ethical ideals of professionalism within

the bar. Our approaches must be relevant and practical for both

new lawyers and more experienced ones. Ethical lawyering must

also be recognized as something wholly compatible with the real-

ities of practising law within an adversarial system. For it is our

shared recognition of values, and our duties to society, to the pro-

fession, to clients, to the court, and to opposing counsel, which

are the foundation of the legal profession.

I am very pleased to have the opportunity to introduce The

Advocates' Society's new publication, Principles of

Professionalism for Advocates. The leadership role that The

Advocates' Society is taking within the legal profession on these

issues is highly commendable, and will no doubt play a large role

in enhancing and sustaining professional responsibility within the

legal profession. The commitment and enthusiasm of the Society

is underscored by both the development of this booklet and the

creation of The Advocates' Society Institute for Civility and

Professionalism. This work is fundamental to the legal profession

and to the administration of justice -- both in the present and the

future.

The Honourable Warren K. Winkler

Chief Justice of Ontario

April 2009

Principles of Professionalism for Advocates 3 7 - 3

PREAMBLE

History discloses that what distinguishes a "profession" from a

trade or other calling is the taking of an oath. We did that when

we were called to the bar and, in so doing, we bound ourselves to

the conduct mandated by the Rules of Professional Conduct as

promulgated by our Law Society from time to time. Failure to do

so results in varying degrees of sanction including disbarment.

The Rules set the minimum expected of us and are regulatory in

nature.

The Principles of Civility for Advocates were published by The

Advocates' Society to provide a tool for advocates to guide their

conduct beyond what is provided in the Rules of Professional

Conduct. They have struck a chord with the members of the

bench and the bar not only in Ontario but also throughout Canada

and even in other jurisdictions around the world. Civility is

essential to the proper functioning of our judicial system and to

foster and maintain respect for the rule of law.

Civility, while critical, is still but one aspect of professionalism.

In presenting the Principles of Professionalism for Advocates in

conjunction with the Principles of Civility for Advocates, the

intent is to broaden the scope of guidance provided to advocates.

It is to take the collective knowledge of the leaders of the bench

and the bar and to distil it into a discrete set of principles which

we believe are the hallmarks of the exemplar advocate. These

principles are couched in the language of instruction, not compul-

sion. In that sense, they are aspirational in nature, intended to

serve as a guide for all who seek to achieve professionalism in

their role as an advocate.

Peter J. E. Cronyn

President, The Advocates' Society

April 2009

Principles of Professionalism for Advocates 47 - 4

The PRINCIPLES

An Advocate's Duty to Society

1. Advocates should support the development, sustainment, and

evolution of democratic principles and the rule of law in Canada

and elsewhere.

2. Advocates should promote the fair and effective administra-

tion of justice.

3. Advocates should promote diversity and equality within the

profession.

4. Advocates should be engaged in their community through

activities including philanthropy, volunteerism, education, and

public service.

An Advocate's Duty to the Profession

1. Advocates should participate in continuing legal education

programs.

2. Advocates should actively seek out and make time to mentor

junior colleagues in their workplace and in the profession at

large.

3. Advocates should promote and participate in self-governance

and self-regulation of the profession.

4. Advocates should enhance the public's regard for the legal

profession. They should not engage in activities that tend to bring

the profession into disrepute.

5. Advocates must, where possible, assist in creating opportuni-

ties for new advocates. They should offer quality articling pro-

grams to meet the demand of graduating law students and to

ensure that the public is provided with well-trained and qualified

Advocates.

An Advocate's Duty to Clients and Witnesses

1. Advocates should pursue the interests of their clients resolute-

ly, within the bounds of the law and the rules of professional con-

duct, and to the best of their abilities. Advocates must "raise fear-

lessly every issue, advance every argument, and ask every ques-

tion."1 At all times, however, they must represent their clients

responsibly and with civility and integrity. The duty of zealous

representation must be balanced with duties to the court, to

opposing counsel and to the administration of justice.

2. Advocates should be skilled, knowledgeable, capable and

competent within the area of law that they practise. They should

remain current regarding developments in the law relevant to

their practice.

3. Advocates must at all times advise their clients with honesty

and candour.

4. Advocates should not allow personal judgments as to the

morality of a client and the client's cause to impede their repre-

sentation of the client to the best of their abilities within the

boundaries of the law and the rules of professional conduct.


5. Advocates should refrain from acting on instructions from a

client that are in conflict with their duty to the court, opposing

counsel or others.

6. Advocates should continue to act for a client, unless there is

good cause to terminate the relationship, such as a breakdown in

communication or failure of the client to pay fees, and advocates

should only terminate the relationship on notice to the client.

7. Advocates should avoid conflicts of interest in advising and

representing clients and, where permitted by law to do so, shall

act or continue to act in a matter where there is a conflict of inter-

est only after adequate disclosure to, and with the consent of, the

affected clients.

8. Advocates should treat all witnesses with fairness, courtesy

and respect, and should not abuse, intimidate or harass a witness.

9. When seeking information from a witness, advocates should

avoid deceiving or otherwise misleading the witness and should

avoid asserting improper influence over the witness' recollection

of events._______________________________________________1. The Law Society of Upper Canada, Rules of Professional Conduct. R. 4.01(1)

An Advocate's Duty to the Court

1. Advocates should use tactics that are legal, honest and

respectful of courts and tribunals.

2. Advocates should act with integrity and professionalism,

maintaining their overarching responsibility to ensure civil con-

duct in accordance with the Principles of Civility for Advocates.

3. Advocates should educate clients and others about the court

processes and promote the public's confidence in the administra-

tion of justice.

4. Advocates should promote the efficient and effective opera-

tion of the judicial system. They should not seek adjournments

without proper reason and should cooperate with opposing coun-

sel in achieving the most expeditious and least costly resolution

of proceedings.

5. Advocates should not knowingly permit the giving of false

evidence or engage in any other conduct calculated to induce the

court to act under a misapprehension of the facts.

6. Advocates should ensure that the court is apprised of changes

in the law and important judicial authority on the legal questions

in at issue in a proceeding.

An Advocate's Duty to Opposing Counsel

1. The proper administration of justice requires the orderly and

civil conduct of proceedings. Advocates should, at all times, act

with civility in accordance with the Principles of Civility for

Advocates. They should engage with opposing counsel in a civil

manner even when faced with challenging issues, conflict and

disagreement.

2. Discussion about opposing counsel with others, including

clients and the court, is permitted. Reasoned criticism based on

Principles of Professionalism for Advocates 67 - 6

evidence of a lawyer's incompetence or unprofessional acts may

be made. Conversely, ill-considered or uninformed comments

about opposing counsel should not be made.

3. Advocates should extend professional courtesies to opposing

counsel. Such courtesies include extending assistance, to which

opposing counsel are not entitled by law, that does not prejudice

their own client.

4. Advocates must not attempt to gain a benefit for their client

solely due to the fact that a litigant is self-represented. Counsel

should cooperate with the court in ensuring that a self-represent-

ed litigant receives a fair hearing.

5. At trial, advocates are entitled to raise proper and legitimate

objections but should not take advantage of technical deficiencies

in a self-represented litigant's case which do not prejudice the

rights and interests of their client.

An Advocate's Duty to Ensure Access to Justice

1. Advocates should support or contribute to organizations, ini-

tiatives and other efforts on the part of the profession intended to

improve access to justice and make legal services available to

persons of limited means.

2. Advocates should provide legal services on a pro bono,

reduced fee or alternative basis for those unable to pay and who

would otherwise be deprived of adequate legal advice or repre-

sentation.

3. Advocates should act so as to decrease the costs of litigation,

including by adhering to the Principles of Civility for Advocates.

4. In their conduct of litigation and in their advice to clients,

advocates should have regard for the principle of proportionality.


PRINCIPLES of CIVILITY

for ADVOCATES

INTRODUCTION

I am pleased to have been invited to write an introduction to The

Advocates' Society Principles of Civility publication. The

Society is to be congratulated for the production of a document

with which every advocate should be familiar.

For decades, a significant segment of the public, often unfairly,

has viewed lawyers as difficult, contentious individuals. The

result is that lawyers and judges often become attractive politi-

cal targets, a process that can undermine the very foundations of

our democratic society which is, of course, an independent jus-

tice system that enjoys the confidence of the citizenry.

In my view, the level of civility at the bar relates directly to the

level of professionalism of the legal profession. The principles

of civility are therefore of great importance to all members of

the bar. The success of our greatest advocates has been charac-

terized by civility. Among many, I think of the late John J.

Robinette and the late G. Arthur Martin whose courtesy towards

fellow advocates, the judiciary and court staff played a major

role in their effectiveness as advocates.

It is also important to remember that the paths of lawyers may

cross and re-cross over and over again. Lawyers have long mem-

ories, particularly about the conduct of colleagues, and in my

experience there can be nothing more important than the reputa-

tion enjoyed by an advocate amongst his or her colleagues.

Judges are entitled to expect that counsel will treat the court and

each other with candour, fairness and courtesy. A failure to do so

usually will create a much heavier burden of persuasion on an

advocate which may well undermine the interests of his or her

client.

The concluding section of the Principles of Civility is entitled

"What Advocates are Entitled to Expect of the Judiciary." This

section is, of course, of particular interest to me as it will be to

all members of the judiciary. In my opinion, these Principles

represent very reasonable expectations on the part of the bar and

the public. Indeed, they accurately reflect the Principles of

Judicial Ethics, which were recently published by the Canadian

Judicial Council.

In conclusion, I strongly endorse and support the ideal that

"civility amongst those entrusted with the administration of jus-

tice is central to its effectiveness and to the public's confidence

in that system."

The Honourable R. Roy McMurtry

Chief Justice of Ontario

May 2001

Principles of Civility for Advocates 87 - 8

PREAMBLE

Since the initial publication of The Advocates' Society Principles

of Civility for Advocates, the issue of civility amongst counsel has

been a topic of increasing importance. Since the initial publica-

tion, several courts have addressed the issue of civility and the

responsibility placed on counsel when interacting with other

counsel and parties. In Queen v. John Bernard Felderhof, [2003]

O.J. 819, the Court of Appeal for Ontario commented on the

importance of civility:

"It is important that everyone, including the courts, encour-

age civility both inside and outside the courtroom.

Professionalism is not inconsistent with vigorous and forcible

advocacy on behalf of a client and is as important in the crim-

inal and quasi criminal context as in the civil context."

The growing awareness of civility as an important aspect of advo-

cacy has resulted in the Principles of Civility being relied upon by

courts when discussing the proper conduct of counsel both in and

outside of the courtroom. Indeed, in Baksh v. Sun Media

(Toronto) Corp. (2003), 63 O.R. (3d) 51, the court relied upon the

Principles of Civility and the Rules of Professional Conduct in

awarding costs on a substantial indemnity basis for a motion

where counsel's conduct was considered improper. In doing so,

the court said, "Counsel who appear before Ontario Courts are

expected to comply with the Rules of Professional Conduct, and

in my view should also adhere to the Principles of Civility, or risk

sanctions by the court."

In Penney v. Penney, [2006] O.J. No. 4802, unsubstantiated alle-

gations of misconduct and dishonesty, made by one advocate

against another, attracted costs being awarded directly against the

advocate making the allegations. In arriving at her decision,

Justice Pardu cited both the Rules of Professional Conduct pub-

lished by the Law Society and the Principles of Civility. The trend

appears to be that the Principles will be considered by the courts

in assessing the conduct of counsel which, in exceptional cases,

may result in increased cost awards.

Whether conduct contrary to the Principles of Civility that takes

place outside the courtroom is capable of judicial sanction is less

clear. In Close Up International Ltd. v. 1444943 Ontario

Ltd.,[2006] O.J. No. 4225, the court considered communication

between the parties outside of the court that was condescending

and personally disparaging of opposing counsel. While the court

indicated that there was no place for such comments, it did not

order sanctions since the court indicated that it was not the func-

tion of a judge or a master "to police counsel's unprofessional

behaviour out of court."

The Principles of Civility may be applicable, not only to lawyers

but also to anyone coming before the court. In Radonicich v.

Reamey, [2008] O.J. No. 2210, the court determined that the con-

duct of a self-represented litigant was inappropriate and advised

him to abide by the Principles of Civility.

In communicating on the Principles, the court stated:

Principles of Civility for Advocates 9 7 - 9

"As these principles take the form of guidelines rather than

rules, per se, I see no reason why self-represented litigants

should not be expected to conduct themselves in a similar

manner when dealing with counsel. These principles are real-

ly about mutual respect, something that all parties and coun-

sel who come before this court should be entitled to expect

from one another. Membership in the Law Society of Upper

Canada should not be a requisite for such an expectation."

At its core, it is this notion of respect that underlies the Principles

of Civility respect for the system of justice and the players in the

system. This is why civility is especially important for those of us

who practice before the courts. What we must show our commu-

nity is that we ourselves have enough confidence in the rule of

law and the administration of justice to accord a place of respect

to the competing view. In short, the Principles are based on some

of the most foundational of the values of our legal system.

Institute for Civility and Professionalism

April 2009


The PRINCIPLES

RELATIONS with OPPOSING COUNSEL

General Guidelines

1. Advocates should always be courteous and civil to counsel

engaged on the other side of the lawsuit or dispute. It is their

responsibility to require those under their supervision to conduct

themselves with courtesy and civility as well.

2. Ill feelings that may exist between clients, particularly during

litigation, should not influence advocates in their conduct and

demeanour toward opposing counsel.

3. Advocates should always be honest and truthful with oppos-

ing counsel.

4. Advocates should conduct themselves similarly towards lay

persons lawfully representing themselves or others.

Cooperating with Opposing Counsel

5. Advocates should avoid unnecessary motion practice or other

judicial intervention by negotiating and agreeing with opposing

counsel whenever practicable.

6. When advocates are about to send written or electronic com-

munication, or take a fresh step in a proceeding which may rea-

sonably be unexpected, they should provide opposing counsel

with some advance notice where to do so does not compromise a

client's interests.

Communications with Opposing Counsel

7. Advocates should respond promptly to correspondence and

communications, including electronic communications, from

opposing counsel.

Promises, Agreements, Undertakings and Trust

Conditions Given to Opposing Counsel

8. Advocates should fulfill or comply with all promises to, or

agreements with, opposing counsel, whether oral or in writing.

9. Advocates should not give any undertaking that, to their

knowledge or belief, cannot be fulfilled and should fulfill every

undertaking given. Undertakings should be confirmed in writing

and should be unambiguous in their terms. Undertakings should

also be fulfilled as promptly as circumstances permit.

10. If an advocate giving an undertaking does not intend to

accept personal responsibility, this should be stated clearly in the

undertaking itself. In the absence of such a statement, the person

to whom an undertaking is given is entitled to expect that the

advocate will honour it personally.

Cooperating with Opposing Counsel on Scheduling

Matters

11. Advocates should consult opposing counsel regarding sched-

uling matters in a genuine effort to avoid conflicts.


12. In doing so, advocates should attempt to accommodate the

calendar conflicts of opposing counsel previously scheduled in

good faith for hearings, examinations, meetings, conferences,

vacations, seminars or other functions.

13. Advocates should agree to reasonable requests for schedul-

ing changes, such as extensions of time, provided the client's

legitimate interests will not be materially and adversely affected.

14. Advocates should not attach unfair or extraneous conditions

to extensions of time. However, they are entitled to impose con-

ditions appropriate to preserve rights that an extension might oth-

erwise jeopardize. Advocates may also request reciprocal sched-

uling concessions but should not unreasonably insist on them.

15. Advocates should promptly notify opposing counsel when

hearings, examinations, meetings or conferences are to be can-

celled or postponed.

Agreement on Draft Orders

16. When a draft order is to be prepared to reflect a Court ruling,

advocates should draft an order that accurately and completely

reflects the Court's ruling. They should promptly prepare and sub-

mit a proposed order to opposing counsel and attempt to recon-

cile any differences before the draft order is presented to the

Court.

Conduct That Undermines Cooperation among

Advocates

17. Advocates should avoid sharp practice. They should not take

advantage of, or act without fair warning to opposing counsel,

upon slips, irregularities, mistakes or inadvertence.

18. Advocates should not falsely hold out the possibility of set-

tlement as a means of adjourning a discovery or delaying a trial.

19. Subject to the Rules of Practice, advocates should not cause

any default or dismissal to be entered without first notifying

opposing counsel, assuming the identity of opposing counsel is

known.

20. Advocates should not record conversations with opposing

counsel without consent of all persons involved in the conversa-

tion.

Conduct at Examinations for Discovery

21. Advocates, during examination for discovery, should at all

times conduct themselves as if a judge were present. This

includes avoiding inappropriate objections to questions, discour-

teous exchanges amongst counsel and excessive interruptions to

the examination process.

22. Advocates should not ask repetitive or argumentative ques-

tions or engage in making excessive or inappropriate self-serving

statements during examination for discovery.

23. The witness who is being examined should be treated with

appropriate respect and should not be exposed to discourteous

comments by opposing counsel or their clients.


24. Advocates should instruct their witnesses as to the appropri-

ate conduct on examination and the requirement for courtesy and

civility to opposing counsel and their clients.

25. Advocates should not engage in examinations for discovery

that are not necessary to elicit facts or preserve testimony but

rather have as their purpose the imposition of a financial burden

on the opposite party.

Comments Made about Opposing Counsel

26. Advocates should avoid ill-considered or uninformed criti-

cism of the competence, conduct, advice, appearance or charges

of other advocates; however, they should be prepared, when

requested, to advise and represent a client in a complaint involv-

ing another advocate.

27. Advocates should not attribute bad motives or improper con-

duct to opposing counsel, except when relevant to the issues of

the case and well-founded. If such improper conduct amounts to

a violation of applicable disciplinary rules, however, advocates

should report such conduct to the appropriate professional disci-

plinary authority.

28. Advocates should avoid disparaging personal remarks or

acrimony toward opposing counsel.

29. Advocates should not ascribe a position to opposing counsel

that they have not taken, or otherwise seek to create an unjustified

inference based on opposing counsel's statements or conduct.

Accommodating Requests from Opposing Counsel

30. Advocates, and not the client, have the sole discretion to

determine the accommodations to be granted to opposing counsel

in all matters not directly affecting the merits of the cause or prej-

udicing the client's rights. This includes, but is not limited to, rea-

sonable requests for extensions of time, adjournments, scheduling

of events, and admissions of facts. Advocates should not accede

to the client's demands that they act in a discourteous or uncoop-

erative manner toward opposing counsel.

31. Advocates should abstain from obstructing any examination

or court process.

32. Subject to applicable practice rules, advocates should give

opposing counsel, on reasonable request, an opportunity in

advance to inspect all evidence or all non-impeaching evidence.

COMMUNICATIONS with OTHERS

Communications with Other Parties and Witnesses

33. Advocates should not communicate upon, attempt to negoti-

ate, or compromise a matter directly with any party who is repre-

sented by counsel except through or with the consent of that

counsel.

34. Advocates may tell any witness that he or she does not have

any duty to submit to an interview or to answer questions posed

by opposing counsel, unless required to do so by judicial or legal

practice; however, advocates should not advise a witness to evade

or ignore service of a summons.


35. Advocates should always be courteous and civil in their com-

munications with witnesses.

Communications with the Judiciary Outside of Court

36. As a general principle, unless specifically provided in the

Rules of Practice, a Practice Direction or a Notice to the

Profession, advocates should not communicate directly with a

judge out of court about a pending case, unless invited or instruct-

ed to do so by the court.

37. Advocates should not contact a judge in regard to administra-

tive matters, unless otherwise invited or instructed by the judge.

Requests to schedule urgent matters should be made through the

court office to the scheduling coordinator or an administrative

judge. Other matters such as management, scheduling, etc. should

be arranged through the judge's assistant.

38. Prior to a hearing, when dealing with process and procedure,

advocates who wish to communicate with a judge should do so

through the judge's assistant and advise whether opposing counsel

has been notified and whether consent to the communication has

been obtained. The judge will then determine the appropriate man-

ner of receiving the communication and advise counsel.

Advocates should respond promptly to a request from opposing

counsel for permission to communicate with the court or the judge.

39. Advocates should not contact a presiding judge about the

case during the course of a hearing unless invited to do so.

40. Unless invited or permitted by the judiciary, correspondence,

e-mail or voicemail between advocates should not be copied to

the court.

41. Telephone conferences that include a judge are court pro-

ceedings and, while less formal, are subject to the same principles

of civility as any other Court proceeding.

42. Advocates and judges should be able to expect from each

other that all their relations will be governed by courtesy and

respect. While advocates and judges who know each other out-

side of the proceedings may be cordial in their relations when in

court or chambers, neither should exhibit a level of informality

which could give rise to an appearance of special consideration.

TRIAL CONDUCT

Trial Preparation

43. Advocates should not attempt to handle a trial or matter that

they are not by experience or training competent to do. Nor

should they attempt to handle a trial or matter without preparation

appropriate to the circumstances.

44. Advocates should cooperate with other counsel in the timely

preparation of a trial brief of documents to facilitate the manage-

ment of documentary evidence at trial by the court, witnesses and

counsel.

45. Advocates should cooperate in the timely exchange with

opposing counsel of any required witness lists and witness “will-

say” statements.


46. If adjournment is sought, advocates should provide as much

notice as possible to the court and other counsel, together with the

reason the adjournment is requested.

47. Advocates should avoid hostile and intemperate communica-

tion amongst themselves at all times, particularly close to trial

when stress levels are high. Such communication will only dete-

riorate further during the trial and adversely affect the administra-

tion of justice in the case.

During Trial

48. Advocates should introduce themselves to the court staff at

the opening of trial, if not already known to them. The court staff

should be treated with appropriate courtesy and respect at all

times.

49. When addressed by the judge in the courtroom, advocates

should rise. When one advocate is speaking, the other(s) should

sit down until called upon. Advocates should never remain with

their back turned when the judge is speaking.

50. During trial, advocates should not allude to any fact or mat-

ter which is not relevant or with respect to which no admissible

evidence will be advanced.

51. Advocates should not engage in acrimonious exchanges with

opposing counsel or otherwise engage in undignified or discour-

teous conduct that is degrading to their profession and to the

court.

52. During trial, advocates should not make any accusation of

impropriety against opposing counsel unless such accusation is

well-founded and without first giving reasonable notice so that

opposing counsel has an adequate opportunity to respond.

53. Objections, requests and observations during trial should

always be addressed to the court, not to other advocates.

54. Objections during trial are properly made as follows:

(1) Advocates rise and calmly state, "Your Honour, I have an

objection.";

(2) When advocates rise to make an objection or to address the

judge, other advocates should be seated until the judge asks for a

response. Under no circumstances should two or more advocates

be addressing the court at the same time;

(3) The basis for the objection should be briefly and clearly stat-

ed. Following a clear statement of the objection, advocates should

present argument in support of it and then sit down;

(4) Advocates opposing the objection shall in turn, or as direct-

ed by the judge, rise and clearly state their position. They will

then make their argument, if any, in support and sit down; and

(5) Usually, advocates who made the objection will then be

given an opportunity to reply. The reply should address only

those points raised by opposing counsel and avoid repetitious re-

argument of the issues.

55. When the court has made a ruling on a matter, advocates

should in no way attempt to re-argue the point or attempt to cir-


cumvent the effect of the ruling by other means.

56. In the absence of a jury, a question to a witness by counsel

should not be interrupted before the question is completed for the

purposes of objection or otherwise, unless the question is patent-

ly inappropriate.

Evidence

57. Advocates should never attempt to get before the court evi-

dence which is improper. If advocates intend to lead evidence

about which there may be some question of admissibility, then

they should alert opposing counsel and the court of that intention.

58. Advocates cannot condone the use of perjured evidence and,

if they become aware of perjury at any time, they must immedi-

ately seek the client's consent to bring it to the attention of the

court. Failing that, advocates must withdraw. Nothing is more

antithetical to the role of counsel than to advance the client's case

before the court, directly or indirectly, on the basis of perjured evi-

dence.

59. Advocates, or any member of their firm, should not give evi-

dence relating to any contentious issue in a trial.

Best Trial Practices

60. In trials where they are acting as counsel, advocates should

not take part in any demonstrations or experiments in which their

own person is involved except to illustrate what has already been

admitted in evidence.

61. Advocates should be considerate of time constraints which

they have agreed to or which have been imposed by the court.

62. Advocates should not communicate with a judge following a

hearing and during deliberation unless specifically invited or

directed to do so. A request for consideration of additional factual

or legal material should be brought by motion on notice to oppos-

ing counsel.

Any additional legal authority may occasionally be brought to the

attention of the judge and opposing counsel at the same time but

without further comment by counsel.

If there is a request to make further submissions, the judge will

determine whether further submissions are justified.

63. Advocates who are successful in a case should shake the hand

of their opponent if it is offered. They should offer theirs if it is

not. Advocates who lose the case should not whine. However

painful, advocates should offer their hand to their successful

opponent. If the case is reserved and they have lost, they should

call their opponent with their congratulations.

COUNSEL’S RELATIONS with THE JUDICIARY

What Judges Can Expect from Advocates

64. Judges are entitled to expect that advocates will treat the court

with candour, fairness and courtesy.

65. Judges are entitled to expect that advocates appearing are, by


training and experience, competent to handle the matter before

the court.

66. Notwithstanding that the parties are engaged in an adversar-

ial process, judges are entitled to expect that advocates will assist

the court in doing justice to the case.

67. Judges are entitled to expect advocates to assist in maintain-

ing the dignity and decorum of the courtroom and their profession

and to avoid disorder and disruption.

68. Judges are entitled to expect advocates to be punctual, appro-

priately attired and adequately prepared in all matters before the

courts.

69. Judges may expect advocates to properly instruct their

clients as to behaviour in the court room, and any court-related

proceedings. Advocates are expected to take what steps are nec-

essary to dissuade clients and witnesses from causing disorder or

disruption in the courtroom.

70. Judges are entitled to expect that advocates, in their public

statements, will not engage in personal attacks on the judiciary or

unfairly criticize judicial decisions.

What Advocates Are Entitled to Expect of the Judiciary

71 Advocates are entitled to expect judges to treat everyone

before the courts with appropriate courtesy.

72. Advocates are entitled to expect that judges understand that

while settlement is always desirable, there are some cases that

require judicial resolution, and that in balancing interests, neither

advocates nor the parties should be unduly urged to settle in such

cases.

73. Advocates are entitled to expect judges to maintain firm con-

trol of court proceedings and ensure that they are conducted in an

orderly, efficient and civil manner by counsel and others engaged

in the process.

74. Advocates are entitled to expect that judges will not engage

in unjustified reprimands of counsel, insulting and improper

remarks about litigants and witnesses, statements evidencing pre-

judgment and intemperate and impatient behaviour.

75. Advocates are entitled to expect judges, to the extent consis-

tent with the efficient conduct of litigation and other demands on

the court, to be considerate of the schedules of counsel, parties

and witnesses when scheduling hearings, meetings or confer-

ences.

76. Advocates are entitled to expect judges to be punctual in con-

vening all trials, hearings, meetings and conferences. If judges are

delayed, they should notify counsel when possible.

77. Advocates are entitled to expect judges to endeavour to per-

form all judicial duties, including the delivery of reserved judg-

ments, with reasonable promptness.

78. Advocates are entitled to expect judges to use their best

efforts to ensure that court personnel under their direction act

civilly towards counsel, parties and witnesses.


2009 PRINCIPLES of PROFESSIONALISM

COMMITTEE

Alan H. Mark, Co-chair

Peter J. E. Cronyn, Co-chair

Caroline Abela

Thomas Arndt

Robert Bell

Sylvia Corthorn

Reena Goyal

Peter Henein

Peter Lukasiewicz

William C. McDowell

Linda M. Plumpton

Daniel Schwartz

Usman M. Sheikh

Tracy L. Wynne

The Principles of Civility for Advocates were initially created in

2001 by a committee of The Advocates' Society. The Principles

were updated in 2009 by members of the Society's "Institute for

Civility and Professionalism."

2001 PRINCIPLES of CIVILITY COMMITTEE

J. Bruce Carr-Harris, Co-chair

Philippa G. Samworth, Co-chair

The Honourable Justice Colin L. Campbell

Ian T. Dantzer

Ronald E. Dimock

John C. Murray

John M. Rosen

Ronald G. Slaght, Q.C.

Rino A. Stradiotto, Q.C., LSM

Elliott A. Zeitz

INSTITUTE for CIVILITY and

PROFESSIONALISM

Honorary Chair:

The Honourable Dennis O'Connor

Associate Chief Justice of Ontario

John E. Callaghan

Peter J.E. Cronyn

Michael Eizenga

Alan H. Mark

Kimberly T. Morris

Ronald G. Slaght, Q.C.

Bonnie A. Tough

Acknowledgements 187 - 18

TAB 7a

Statement of Principles on Self-Represented Litigants and Accused Persons

Adopted by the Canadian Judicial Council September 2016

Reproduced with Permission

June 5, 2017


FOR PARALEGALS

Statement of Principleson Self-represented Litigants and Accused Persons

Adopted by the Canadian Judicial CouncilSeptember 2006

CANADIAN JUDICIAL COUNCILSTATEMENT OF PRINCIPLES

ON SELF-REPRESENTED LITIGANTS AND ACCUSED PERSONS*

PREAMBLE

Whereas the system of criminal and civil justice in Canada is predicated on the expectation ofequal access to justice, including procedural justice, and equal treatment under the law for allpersons;

Whereas the achievement of these expectations depends on awareness and understanding ofboth procedural and substantive law;

Whereas access to justice is facilitated by the availability of representation to all parties, and itis therefore desirable that each person seeking access to the court should be represented bycounsel;

Whereas those persons who do remain unrepresented by counsel both face and present specialchallenges with respect to the court system;

Therefore, judges, court administrators, members of the Bar, legal aid organizations, andgovernment funding agencies each have responsibility to ensure that self-represented persons areprovided with fair access and equal treatment by the court; and

Therefore, it is desirable to provide a statement of principles for the guidance of such persons inthe administration of justice in relation to self-represented persons.

*Notes:

1. Throughout this document, the term “self-represented” is used to describe persons who appear withoutrepresentation. The use of this term is not meant to suggest inferences about the reasons the individual is withoutrepresentation, nor the quality of their self-representation, and recognizes that some individuals prefer to representthemselves.

2. The Statements, Principles and Commentaries are advisory in nature and are not intended to be a code of conduct.

7a - 1

A. PROMOTING RIGHTS OF ACCESS

STATEMENT:

Judges, the courts and other participants in the justice system have a responsibility topromote opportunities for all persons to understand and meaningfully present their case,regardless of representation.

PRINCIPLES:

1. Access to justice for self-represented persons requires all aspects of the court process tobe, as much as possible, open, transparent, clearly defined, simple, convenient andaccommodating.

2. The court process should, to the extent possible, be supplemented by processes thatenhance accessibility, informality, and timeliness of case resolution. These processesmay include case management, alternative dispute resolution (ADR) procedures, andinformal settlement conferences presided over by a judge.

3. Information, assistance and self-help support required by self-represented persons should bemade available through the various means by which self-represented persons normally seekinformation, including for example: pamphlets, telephone inquiries, courthouse inquiries,legal clinics, and internet searches and inquiries.

4. In view of the value of legal advice and representation, judges, court administrators and otherparticipants in the legal system should:(a) inform any self-represented parties of the potential consequences and responsibilities

of proceeding without a lawyer;(b) refer self-represented persons to available sources of representation, including those

available from Legal Aid plans, pro bono assistance and community and otherservices; and

(c) refer self-represented persons to other appropriate sources of information, education,advice and assistance.

7a - 2

1 Hann, Robert et al. A Study of Unrepresented Accused in Nine Canadian Courts. Ottawa: Department of Justice, 2003.

Page 3

COMMENTARY:

1. Informed opinion and research suggests that the numbers of self-represented persons in thecourts are increasing. However, the average person may be overwhelmed by the simplest ofcourt procedures.

2. Self-represented persons are generally uninformed about their rights and about theconsequences of choosing the options available to them; they may find court procedurescomplex, confusing and intimidating; and they may not have the knowledge or skills toparticipate actively and effectively in their own litigation.1

3. Many self-represented persons have limited literacy skills, and many speak Canada’s officiallanguages as a second language, if at all. As a result, many self-represented persons tend toaccess information about the courts through means other than the written word. For thisreason, it is essential that information be provided using other means, including videos andpictures. Further, having an official available to answer questions posed by self-representedpersons should, to the extent possible, supplement pre-packaged materials.

4. Given these factors, it is important that judges, court administrators and others facilitate, to theextent possible, access to justice for self-represented persons.

5. Providing the required services for self-represented persons is also necessary to enhance thecourts’ ability to function in a timely and efficient manner.

7a - 3

B. PROMOTING EQUAL JUSTICE

STATEMENT:

Judges, the courts and other participants in the justice system have a responsibility to promoteaccess to the justice system for all persons on an equal basis, regardless of representation.

PRINCIPLES:

1. Judges and court administrators should do whatever is possible to provide a fair and impartialprocess and prevent an unfair disadvantage to self-represented persons.

2. Self-represented persons should not be denied relief on the basis of a minor or easily rectifieddeficiency in their case.

3. Where appropriate, a judge should consider engaging in such case management activities asare required to protect the rights and interests of self-represented persons. Such casemanagement should begin as early in the court process as possible.

4. When one or both parties are proceeding without representation, non-prejudicial and engagedcase and courtroom management may be needed to protect the litigants’ equal right to beheard. Depending on the circumstances and nature of the case, the presiding judge may: (a) explain the process;(b) inquire whether both parties understand the process and the procedure;(c) make referrals to agencies able to assist the litigant in the preparation of the case;(d) provide information about the law and evidentiary requirements; (e) modify the traditional order of taking evidence; and (f) question witnesses.

7a - 4

2 [1997] 3 S.C.R. 624 per LaForest, J. for the court at 667.

Page 5

COMMENTARY:

1. It is consistent with the requirements of judicial neutrality and impartiality for a judge toengage in such affirmative and non-prejudicial steps as described in Principles 3 and 4. Acareful explanation of the purpose of this type of management will minimize any risk of aperception of biased behaviour.

2. Judges must exercise diligence in ensuring that the law is applied in an even-handed way toall, regardless of representation. The Council’s statement of Ethical Principles for Judges(1998) has already established the principle of equality in principles governing judicialconduct. That document states that, “Judges should conduct themselves and proceedingsbefore them so as to ensure equality according to law.”

3. However, it is clear that treating all persons alike does not necessarily result in equal justice. The Ethical Principles for Judges also cites Eldridge v. British Columbia (Attorney General)2

on a judge’s duty to “rectify and prevent” discriminatory effects against particular groups.

4. Self-represented persons, like all other litigants, are subject to the provisions whereby courtsmaintain control of their proceedings and procedures. In the same manner as with otherlitigants, self-represented persons may be treated as vexatious or abusive litigants where theadministration of justice requires it. The ability of judges to promote access may be affectedby the actions of self-represented litigants themselves.

7a - 5

C. RESPONSIBILITIES OF THE PARTICIPANTS IN THE JUSTICE SYSTEM

STATEMENT:

All participants are accountable for understanding and fulfilling their roles in achieving thegoals of equal access to justice, including procedural fairness.

PRINCIPLES:

For Both the Judiciary and Court Administrators

1. Judges and court administrators should meet the needs of self-represented persons forinformation, referral, simplicity, and assistance.

2. Judges and court administrators should develop forms, rules and procedures, which areunderstandable to and easily accessed by self-represented persons.

3. To the extent possible, judges and court administrators should develop packages for self-represented persons and standardized court forms.

4. Judges and court administrators have no obligation to assist a self-represented person who isdisrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort toprepare their own case.

7a - 6

For the Judiciary

1. Judges have a responsibility to inquire whether self-represented persons are aware of theirprocedural options, and to direct them to available information if they are not. Depending onthe circumstances and nature of the case, judges may explain the relevant law in the case andits implications, before the self-represented person makes critical choices.

2. In appropriate circumstances, judges should consider providing self-represented persons withinformation to assist them in understanding and asserting their rights, or to raise argumentsbefore the court.

3. Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder thelegal interests of self-represented persons.

4. The judiciary should engage in dialogues with legal professional associations, courtadministrators, government and legal aid organizations in an effort to design and provide forprograms to assist self-represented persons.

7a - 7

For Court Administrators

1. Court administrators should seek to provide self-represented persons with the assistancenecessary to initiate or respond to a case and to navigate the court system.

2. In particular, court administrators should be given sufficient resources to be able to: (a) provide, on request, all public information contained in dockets or calendars, case

files, indexes and existing reports;(b) provide, on request, access to or a recitation of relevant common, routinely employed

rules, court procedures, and fees and costs;(c) provide, on request, information about where to find applicable laws and rules(d) identify and provide, on request, applicable forms and written instructions;(e) answer questions about how to complete forms, but not about how answers should be

phrased;(f) define, on request, terms commonly used in court processes;(g) provide, on request, phone numbers for Legal Aid, lawyer referral services, local

panels, or other assistance services, such as Internet resources, known to court staff;and

(h) provide, to the extent possible, and in compliance with applicable law, appropriateaids and services for individuals with disabilities.

3. Court administrators shall not provide legal advice.

4. Court administrators should educate court personnel regarding the importance of publicaccess to the courts and should provide training to court personnel as to how they shouldassist self-represented persons.

5. Court administrators should allocate the necessary resources to allow court personnel toprovide meaningful assistance.

7a - 8

For Self-Represented Persons

1. Self-represented persons are expected to familiarize themselves with the relevant legalpractices and procedures pertaining to their case.

2. Self-represented persons are expected to prepare their own case.

3. Self-represented persons are required to be respectful of the court process and the officialswithin it. Vexatious litigants will not be permitted to abuse the process.

For the Bar

1. Members of the Bar are expected to participate in designing and delivering legal aid and probono representation to persons who would otherwise be self-represented, as well as otherprograms for short-term, partial and unbundled legal advice and assistance as may be deemeduseful for the self-represented persons in the courts of which they are officers.

2. Members of the Bar are expected to be respectful of self-represented persons and to adjusttheir behaviour accordingly when dealing with self-represented persons, in accordance withtheir professional ethical obligations. For example, members of the Bar should, to the extentpossible, avoid the use of complex legal language. Members of the Bar may be guided by theCanadian Bar Association’s Code of Professional Conduct and the codes of each jurisdiction(see Guiding Principle XIX (8))and references therein.

7a - 9

For Others

1. Government departments with overall responsibility for court administration should provideLegal Aid plans with sufficient resources to provide a proper range of required services forfinancially eligible persons, including: education, short-term information and advice, andrepresentation.

2. In addition to providing representation, Legal Aid organizations should be encouraged tocreate flexible options and models for addressing the challenges of self-represented persons,including programs providing education and short-term information and advice.

3. Providers of judicial education should develop educational programs for judges and courtadministrators on broad-based methods of assisting and managing the cases of self-represented persons.

4. Government agencies with overall responsibility for court administration should providecourts with the resources and assistance necessary to train court administrators and to providethe funding necessary for them to provide meaningful, broad-based assistance to self-represented persons, including awareness and communications training.

5. Government agencies with overall responsibility for court administration should providefunding for self-help programs for self-represented persons, as well as for programs ofassistance to self-represented persons, which falls short of representation.

7a - 10

COMMENTARY:

1. The adoption of these principles in individual courts should be guided, as much as possible,by statistical information about self-represented persons and their cases in each particularcourt jurisdiction.

2. The design of programs to assist self-represented persons should be a collaborative effortamong the judiciary, the courts, the Bar, Legal Aid providers, the public, and relevantgovernmental agencies.

3. A key requirement is that court personnel understand the distinction between legalinformation and legal advice, which they are forbidden from providing. Legal advicewould include, among other things, advising someone on whether or how to best pursue acase, and explaining the law (as opposed to the process, or distributing information onhow to access the law). Research suggests that many court officials may beuncomfortable with providing assistance to self-represented persons for reasons thatinclude uncertainty about how far they may go in answering questions from self-represented persons. Training of court personnel helps them to give meaningfulassistance without giving legal advice. Training packages may include such elements asmulti-step “protocols” for court personnel and scripts for answering frequently askedquestions.

4. Education packages for judges may also include multi-step “protocols” which mayinclude possible scripts for commonly experienced situations. Suggested language forjudges typically covers the need to explain the process, the elements and potentialconsequences, the burden of presenting evidence, the types of evidence which may bepresented, the rules governing non-lawyers assisting self-represented persons, and so on.

5. Self-help support for self-represented persons may include such elements as convenientlyaccessible (e.g., online) forms; “virtual libraries” containing Rules of Court, relevant law,and guidelines to the judiciary in issuing key types of orders or rulings; directions tocourthouses; summaries of key areas of law; e-filing; clearinghouses for access to legalservices; how-to pamphlets on how to prepare and present a case; and the like.

6. Scheduling should take into account the special challenges and needs of self-representedpersons.

7a - 11

TAB 7b

Dealing with the Difficult Client

Reproduced with Permission

June 5, 2017


FOR PARALEGALS


Carole Curtis, B.A., LL.B., Barristers & Solicitors, 260 Richmond St. W., Suite 506, TORONTO, Ont. M5V 1W5 416.340.1850 x 222 fax 416.340.2432 [email protected]

_________________________________________________________________ 2 Dealing with the Difficult Client Carole Curtis


Carole Curtis

1. Introduction 2. Why Should the Lawyer be Concerned about the Difficult Client? 3. The Basic Three Steps of your Involvement with the Difficult Client a. Whether or not to Act for the Difficult Client b. How to deal with the Difficult Client during the Retainer: 5 Tips to Stay

Sane and Stay in Practice i. Understand your role ii. Protect Yourself Throughout iii. Be Calm, Be Patient, Be Clear iv. Include your Staff in the Plan for the Client v. The Lawyer’s Job in Managing Expectations c. Know When to Fold – Ending your relationship with the Difficult Client 4. Categories of Difficult Clients a. Angry/Hostile b. Vengeful/with a mission c. Over-Involved/Obsessive d. Dependant e. Secretive/Deceitful/Dishonest f. Depressed g. Mentally Ill h. The Difficult Client with the Difficult Case i. The Client who is Unwilling to Accept/Follow/Believe any of the lawyer’s

Advice

7b - 2


Dealing with the Difficult Client Carole Curtis

October 2003

1. Introduction Lawyers often act for or deal with clients who are difficult. Dealing with a difficult client is one of the most challenging parts of legal practice and requires care, attention and planning. This analysis assumes that you have decided to act for this client and that you have identified the client as a difficult client. Difficult is, of course, a relative term, that is, who is seen as a difficult client may be a function of the area of law you practice in, or the other clients you act for. Often clients are seen as difficult in comparison to the other clients in the lawyer’s practice. Also, there’s no doubt that the personal traits of the lawyer affect the lawyer’s ability to deal with difficult clients. Some of us are just more tolerant than others. Some lawyers have a rescuer fantasy, which may increase the number of difficult clients they represent, and may affect the way in which they represent the difficult client. As well, some lawyers have decision-making authority about the clients they represent, and as a result, have control over which clients they act for. Obviously, this allows a lawyer to act for fewer difficult clients, or even perhaps no difficult clients. However, that is not the case for most lawyers. 2. Why should you be concerned about the Difficult Client? The difficult client is a very hard customer to satisfy. They can be frustrating, demanding, even upsetting. They can ignore your advice. They can treat you badly, or (even worse) treat your staff badly. They can be unhappy with the progress of the case, no matter how hard you have worked or how good the results are. In short they can be unreasonable. The difficult client is more likely to do the three things that distress lawyers most:

• The difficult client is more likely to not pay the lawyer. • The difficult client is more likely to complain to the Law Society about the lawyer. • The difficult client is more likely to sue the lawyer for negligence.

It is important, in dealing with the difficult client, to protect yourself at all times, and to protect yourself at the same time that you are trying to serve your client.

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3. The Basic Three Steps of your Involvement with the Difficult Client

a. Whether or not to Act for the Difficult Client

Lawyers can, under certain circumstances, refuse to act for a particular client. This is less difficult for lawyers who practice in large urban centres, where the client can usually find another lawyer, and is less difficult for lawyers who restrict their practice to certain areas of law. With time, the lawyer can tell in the first interview if the client is going to be a difficult client (this is known as trusting your instincts). Often, the lawyer can even tell on the telephone that the client is likely to be a difficult client. This possibility is an added incentive for making your own appointments with new clients (rather than allowing the secretary to make your appointments), so that you have the opportunity to speak to every new client yourself on the telephone before they come in to see you. You might also consider not even offering a consultation to a client you assess as a difficult client in the initial telephone contact. These are some questions to ask early in your contact with the client that will help you to identify a client who may be a difficult client:

• Am I the first lawyer dealing with this particular problem for you? • How many lawyers have you consulted or retained about this problem? • Why did you leave your previous lawyer(s)? • Who are your previous lawyers? • Can I talk to your previous lawyer(s)? • What stage is this problem at (particularly if the problem is in litigation)? • What are your expectations about the resolution of this problem?

• What are your expectations about time to conclude? • What are your expectations about result? • What are your expectations about cost?

b. How to deal with the Difficult Client during the Retainer: 5 Tips to Stay Sane and Stay in Practice

i. Understand your role

Your role as lawyer is usually pretty straightforward, but may appear to be less clear with a difficult client. Your role is to analyze a given situation and offer a solution to the problem presented, or a means of achieving the goal the client has presented. Sometimes, there are several possible solutions or means, all of which should be offered to the client. Don’t forget

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that “do nothing” is always a possible solution (although that solution may have outcomes that are unacceptable to the client). The lawyer’s role then is to advise on the consequences of the different courses of action. It is the client’s job to make decisions about which course of action to follow, not the lawyer’s. After all, it is the client’s life, or the client’s business, or the client’s estate, or the client’s litigation. Some categories of difficult clients (dependant clients, for example) are often totally unwilling to make decisions about their legal issues and want the lawyer to do that. DO NOT DO IT. Let some other influential person in their life help the client with the decision. Your job is to help the client understand the choices.

ii. Protect Yourself Throughout

Document everything you possibly can, including telephone calls, voice mail messages and e-mail messages. The verb “document” means “to record in a document; to provide with citations or references to support statements made”.1 Confirm the client’s instructions to you in writing, and confirm your instructions to the client in writing. It is also necessary to include, in writing, the possible consequences of various courses of action the client may be contemplating. If you deal with this client or their work electronically, save messages and instructions in your usual way as part of the permanent record of the file (which may be electronic or on paper). The difficult client has a way of turning on the lawyer more often and with more damaging consequences than other clients. Documenting (in this context) means recording sufficient details to assist you in a future disagreement. The record you make is not of any use if there are insufficient details to assist you. This means recording at least the following:

• the client’s name, • the file name, • who the contact was with, • the date of the contact, • the nature of the contact (telephone call, meeting, voice mail, e-mail, etc.), • how long the contact took, • the details of the contact (who said what, including what the lawyer said), and • any instructions given (by the client or by the lawyer) during the contact.

1 Katherine Barber, ed., The Canadian Oxford Dictionary, Toronto: Oxford University Press. 1998. p. 409.

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Practice management software programs can make this task less cumbersome and more reliable than scraps of paper the lawyer scribbles on. It may also be wise to discuss the advice you give this client with a colleague, including discussing the fears you have about the client. In notes of meetings or conversations with the client, be sure to record the information and advice you gave the client, not only the information the client gave you. Where there is a dispute between lawyer and client, this area may, in fact, be the biggest area of disagreement, and is also among the least documented. In litigation between the lawyer and the client, where there is disagreement about the information provided or the legal advice given to the client and that advice is not documented, courts have often preferred the evidence of the client on this issue. Practice management software is undoubtedly the most powerful tool for keeping track of all the work that has to be done on a legal matter. The two most widely used practice management products – Amicus Attorney (www.amicusattorney.com) and TimeMatters (www.timematters.com) – are powerful law-office specific tools that allow you to collect and organize information around a single matter. These “practice management systems” contain, in one database, almost all the information you need to handle files and run a law practice. They provide functionality that was often found in separate, software programs, including time and billing accounting, automated document generation, document management. When used properly, a practice management software unifies all the data about a client, potential client or matter into a single point of reference. You can instantly and easily see, in one place, every letter, e-mail, appointment, to do and so on.

iii. Be Calm, Be Patient, Be Clear

Do not let the difficult client turn you into the difficult lawyer, or the unhappy lawyer, or the depressed lawyer (or worse, the yelling lawyer, the drinking lawyer or the swearing lawyer). It will require more patience than usual to deal with this client. If you find you are becoming the difficult lawyer, perhaps it is time to transfer the file to another lawyer. Be explicit, and be very clear with the client, about everything. The more information given to the client in writing, the less likely there will be misunderstandings. It is also advisable to give the client this information early on in the retainer. Included are examples of information given to clients early on, to help avoid conflict in the retainer (see schedules attached, Administrative Information for New Clients and Billing information for New Clients, which clients are asked to read in the reception area before they meet with lawyers in this law firm).

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Be clear with the client about the expectations you have of the client regarding the client’s treatment of you and treatment of your staff. Be sure the client understands whom to deal with on which issues (for example, who to call to get certain information, when they need to speak to the lawyer, when they can deal with staff). Many difficult clients want to deal only with lawyers, which is expensive, not very efficient and not often necessary (see Managing Expectations, below).

iv. Include your Staff in the Plan for the Client

Make sure the staff understands the risks of acting for a difficult client, so they can behave in ways that minimize those risks. Usually, the staff will easily be able to identify the difficult client. The staff may have identified this client as a difficult client before the lawyer. Make sure the staff is dealing with this client the same way that the lawyer is, especially in terms of documenting contacts, instructions or information. Also, difficult clients are often much more difficult with the staff then they are with the lawyers. Trust your staff and believe them when they describe the client’s behaviour. Deal directly and promptly with the client about bad or inappropriate treatment of the staff, to ensure that the client understands what the staff’s role is in their retainer, and more importantly, to ensure that the behaviour is not repeated. . Never let the difficult client treat your staff poorly or abusively. No client is more important than your staff. Institute a zero tolerance policy on abusive behaviour towards staff.

v. The Lawyer’s Job is Managing Expectations

Often clients are difficult for lawyers to deal with, at least in part, because they have unrealistic expectations about the services you will provide, or the outcomes you can achieve for them. Some clients’ expectations or goals are totally outside the realm of what legal services could ever achieve. It is important to identify, as early as possible, what the client’s expectations are in retaining a lawyer to deal with this particular issue. Consider asking the client to reduce their expectations to writing, or at least, have a frank, early discussion with the client about their expectations. Clients’ unrealistic expectations take many forms, but fall into the following general categories:

• expectations about service; • expectations about time to conclude; • expectations about result; • expectations about cost.

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Many difficult clients have very high service expectations. If the client has service expectations which are impossible to meet (e.g., phone calls always returned by the lawyer within 15 minutes, or performing all of the work for free) be clear from the outset that you cannot provide that level of service or that kind of service, and that perhaps the client should find a lawyer who can (good luck to them). If the client has service expectations which are unrealistic, or very expensive (dealing only with the lawyer, or having all work done only by the most senior lawyer) be clear with the client as to whether or not you can meet that expectation, or whether another kind of service will be provided. It is especially important to bill clients with high service expectations frequently and regularly, so they can understand the cost of those expectations. Clients who are unlikely to be successful in achieving their goals need to be told that clearly and explicitly from the start of the retainer, or at the earliest possible moment in the retainer. It is far more important to be honest with the client who cannot achieve their goal, than it is with the client who can. Clients are far more interested in honest and clear information about the cost of legal services that at any time in the past. The introduction of technology to the billing process has also changed clients’ expectations and their tolerance. The difficult client is also a client who is likely to be unhappy about fees. Again, it is advantageous to ensure this client is billed frequently and regularly, and is provided with as much detail as possible.

b. Know When to Fold – Ending your relationship with the Difficult Client

It is not possible to satisfy all clients. In some lawyer-client relationships, there comes a time when the client no longer has confidence in the lawyer’s advice or strategy, and that is the time to suggest that the client find another lawyer. With the difficult client, this may occur due to the client’s unhappiness with the results. Know when to leave the file. If you cannot make the client satisfied with the progress of the work you are doing, or with the service you are giving, it may be time to let another lawyer try. If you are transferring an active file, you need to ensure that the client is not disadvantaged, and that all material needed to allow the client to move forward with the matter is released (even if the client owes the lawyer money).

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4. Categories of Difficult Clients

a. Angry/Hostile

This client is unhappy before they retain a lawyer, and will continue to be unhappy. They usually cannot get at the person who is making them unhappy (the other side of the case), in order to tell them about it, but they can get to their own lawyer. As a result, often the angry/hostile clients will visit this anger on their own lawyer (and on the staff). This is known, in psychological circles, as transference. This is very unpleasant for the recipient of this anger, and is not an appropriate basis for a professional relationship. If you could help this client reach the stage where they are not angry, the client may no longer be a difficult client. However, it may not be possible to get the client to the stage where they are not angry. Besides, that is the job of a therapist. And in certain of these situations, recommending the client see a therapist is the right course. But it is possible to get the client to understand that the lawyer is not the proper place for the outlet of this anger, that the lawyer works for the client and that the lawyer will not tolerate that treatment. Be clear about this the first time the client expresses that anger to you, or you will not easily be able to prevent it in the future. This client requires a clear firm hand from the start. Be clear with the client about what level of expressed anger is acceptable for you (it may be “none”). Be clear about the treatment of your staff. This client seems to particularly visit their anger on those weaker (your staff). If you tolerate this client’s outbursts, they will continue, and likely increase. You cannot change the fact that they are angry or hostile, but you can require that they not visit that behaviour on you or on your staff. Remind this client that this is a business relationship and that you work for them.

b. Vengeful/with a Mission

This client is a variant of the angry/hostile client. This client has come to you to accomplish a specific purpose, which purpose may have very little to do with the legal issues you were consulted about. They may actually be angry/hostile, but may not show this behaviour at all to the lawyer. The client is often focused on this purpose and quite tenacious. They have a strong personal sense of justice (and injustice) and will want to feel that your work for them has produced justice. They are also result-oriented in a way that may skew your ability to help them. If the lawyer is unable to achieve the specific result the client seeks, there will be trouble. Often, they look for a lawyer who will share their definition of justice and the feeling that they have been wronged. This is a dangerous path for a lawyer to follow, even if you agree

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that the client has been wronged. Lawyers should not be personally invested in the outcome of a client’s case. Yet the vengeful/with a mission client will specifically seek a lawyer who is not indifferent about the outcome. They want a lawyer who “believes” in their cause. Be very cautious in even agreeing to act for this client. This retainer is fraught with problems. Some vengeful/with a mission clients want to take steps that are problematic for the lawyer, highly inappropriate or even illegal. Some vengeful/with a mission clients are also secretive/deceitful/dishonest clients (see below). Remember that lawyers can be taken advantage of by unscrupulous clients. This is another retainer in which it is advisable to reduce to writing all instructions given (from both sides). Also, although this client wants “justice”, they are often unwilling to pay for the kind of service required to satisfy their definition of justice. Be sure to bill this client regularly and frequently. c. Over-Involved/Obsessed This client is related to the vengeful/with a mission client. This client may be focussing all their time and energies on the legal matter you are helping them with, often to the exclusion of all other matters in their lives. They are often needy, dependant and want a lot of attention. They want to see and read everything possible about their case. They are obsessed with collecting the paper their case produces, and often have binders or file folders full of material about their case. Ensure that they get copies of everything possible regarding their legal matter. The lawyer might also provide them with the legal research (the actual cases) if there is research done for their matter. This client may do their own research, as well. The over-involved/obsessed client may be extremely well organized and have all the material regarding their case in an easy to access system. Or, they may be disorganized and the material may be virtually inaccessible. The over-involved/obsessive client will often provide copious written material to the lawyer, with the expectation that the lawyer will read it all. If an unreasonable (or impossible) amount of material is provided, try to get the client to identify what portion of it is essential for the lawyer to read (either by suggesting you can read a fixed percentage of it (40% of it, say) or you can spend a fixed amount of time (for example, 1 hour) reading it). Also, try to get the client to organize the material in whatever format is helpful to you (order of importance, chronological order, pleadings separate from correspondence, lawyers’ letters separate from other correspondence). Remind the client that they pay for the time taken by the lawyer to organize material that is not organized, so it is in their interest to organize it first. Also, the over-involved/obsessive client likes it when the lawyer gives them homework related to the case, as it helps them to feel connected to the work that the lawyer is doing.

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Like other difficult clients, the over-involved/obsessed client should be billed regularly and frequently, so that they have realistic expectations about the cost of their matter and the affect that their particular style of dealing with it has on that cost.

c. Dependant

This client has spent much of their life being dependent on others, in one form or another, and intends to continue that level of dependency with the lawyer. In part, this client is unwilling to take responsibility for their own lives and for their own decisions. This client will have surrounded themselves with others who are quite willing to be the decision-maker for them, and as a result, may have become even more dependant, and nearly incapable of making their own decisions. Often the client merely transfers this dependency from someone else to the lawyer. This is not the right place for the lawyer to be. The lawyer’s role is not to be the decision-maker, but rather to be the advisor about the choices available to the client. The dependant client will steadfastly refuse to make a decision, insisting that the lawyer do it. It may suit some lawyers to be the decision-maker for the client, but it is a path fraught with problems and is not a path the lawyer should follow. When the results of the decision do not please the client, the lawyer will be blamed. Lawyers becoming the decision-maker for a dependant client is a no win situation. Encourage the client to involve a trusted advisor (other than the lawyer) in the process. Encourage the dependant client to come to meetings with you accompanied by the trusted advisor. Let the advisor be the person the client depends on. If that person helps the client to reach decisions then the lawyer is better protected and better able to perform the proper role. The dependant client will be dependant throughout the retainer, and often difficult to advise and keep focused. This client requires a fair bit of patience on the part of the lawyer. Also this client requires that much of the lawyer’s dealings with the client, including advice, be reduced to writing so that the client can consider the recommendations in an unhurried atmosphere and in a context where they can consult other trusted advisors. It is also good practice to confirm this client’s instructions in writing.

d. Secretive/Deceitful/Dishonest

This client’s behaviour may run through a spectrum of behaviour, in which the client may exhibit only one aspect of the behaviour, or may move through the various phases. Secretive behaviour may be that which is that is merely suspicious (but unproven). The results of

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deceitful behaviour may be reparable. However, dishonest behaviour may require the lawyer to end the retainer. Often the lawyer will not identify the behaviour or the severity of this behaviour until the client has moved fully into the dishonest category. The client who is only secretive may have misunderstood the importance of openness and honesty in the lawyer-client relationship. Or, this client may have something to hide. The lawyer’s level of concern about secretive behaviour will vary directly with the nature of the retainer. But the lawyer should never allow the client’s inclination towards secrecy to prevent the lawyer from asking all the questions needed to properly do the work. If the client has actually been deceitful or dishonest with the lawyer, this is a good reason to end the retainer. Once the lawyer learns of the deceit or dishonesty, it is unlikely the lawyer can feel confident in the future with that client. The outcome of dishonesty on the part of the client is an easier circumstance to handle than the secretive or deceitful client. It may be that the lawyer can continue to act for the secretive or deceitful client. But the lawyer needs to be very careful about being involved under circumstances where you cannot be confident that the client is telling you everything you need to know in order to properly do your job. Lawyers have run into difficulty when they have been taken advantage of by unscrupulous clients. f. Depressed The client who is depressed is not merely someone who is sad or unhappy; this is someone with clinical depression who has become withdrawn, passive, lethargic, unable to engage, perhaps even paralyzed in their day-to-day lives. Clinical depression can lead to an inability to perform even the most normal of tasks (e.g., returning phone calls). This client will be difficult because they may not be able to engage with the legal process sufficiently to properly instruct a lawyer. This is most problematic for the client who is involved in litigation, and who must respond to court documents in a time frame. However, the depressed client can also be a problem for lawyers in situations that do not involve litigation. Similar to the angry/hostile client, the best step is to try to get the client some professional help so that they can move away from being depressed, and become better able to instruct their lawyer. If you could help this client reach the stage where they are not depressed, the client may no longer be a difficult client. However, it may not be possible to get the client to the stage where they are not depressed. And clearly, this is the job of a therapist. If this client will not get help and wants to continue to be your client, you must document carefully the recommendations and advice you give the client. Put your advice in writing, and ask the client for clear written instructions. If you cannot get written instructions from the client, confirm the client’s instructions to you in writing. If you cannot get any instructions, you may need to close the file, telling the client, in writing, that you will not take any further

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steps on their behalf and that you will close the file in 30 days, absent specific instructions to proceed. It is advisable to be specific with the client about the consequences of this step, if there are consequences for the client.

g. Mentally Ill

The client who may be mentally ill is a particular challenge for the lawyer. Do not confuse a mental illness with the ability to instruct counsel. There are clients with mental illness who are capable of instructing lawyers. The lawyer must be satisfied that the client can properly instruct counsel. But the test for taking those instructions must be broad enough to ensure that clients are not denied access to lawyers merely because they are difficult, change their positions, or are hard to follow. This client may be less predictable than other clients and may change their instructions often, even regularly. As a result, the lawyer should confirm those instructions in writing and should ensure the instructions are fresh and still valid before acting on those instructions. h. The Difficult Client with the Difficult Case The difficult client with the difficult case is usually also the client who has totally unrealistic expectations about their case. Those unrealistic expectations may be about the outcome of the case, but this client often has unrealistic expectations that touch every aspect of the case, including the cost, the length of time involved, the importance of their case, and the kind of service the lawyer can provide. This client needs to hear, right from the first meeting, what the likely outcome will be. It is always advisable, also, to put bad news in writing, particularly to this client. This client may also need to hear that information repeatedly.

h. The Client who is Unwilling to Accept/Follow/Believe the Lawyer’s Advice

To some extent, almost all clients fall into this category. In fact, clients often come to lawyers to determine the consequences of actions they have already taken or paths they have already decided to take. Many clients are just unwilling to follow or accept the advice their lawyers give. Sometimes this makes them difficult clients, and sometimes it does not. Be clear with these clients about exactly what your advice is. Reduce it to writing, including, where possible, the likely outcome of following the advice and the outcome of rejecting the advice. If they choose not to follow it, at least they do so knowing the consequences. There are lawyers who will refuse to act, or to continue to act for the client who does not follow their advice. This seems too rigid a position to adopt as a general rule. The better

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path is to use your judgment about that kind of decision, reserving the decision to end the retainer for client who rejects or ignores advice that has consequences that are very serious. Lawyers may see their role as assisting the client with their legal problem, no matter what decisions the client makes about the conduct of that problem. After all, it is the client who will have to live with the consequences (not the lawyer). Carole Curtis, B.A., LL.B., Barristers & Solicitors, 260 Richmond St. W., Suite 506, TORONTO, Ont. M5V 1W5 416.340.1850 x 222 fax 416.340.2432 [email protected] October 2003

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