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  • Civil Procedure accounts for 19 out of 654 casebriefs.

Style of causeRatio

1465778 Ontario Inc. v 1122077 Ontario Ltd., [2006] OJ No 4248 (ONCA)

Pro bono counsel can get costs awarded in their favour and have costs awarded against them

Barlow v Citadel General Assurance Company, 2008 CanLII 3215 (ON SC)

Premiums are no longer available for lawyers who take cases on contingency basis (Walker v Ritchie).
Take into account unnecessary actions by successful party when calculating costs

Black v. Canada (Prime Minister), 54 OR (3d) 215

If Parliament has left a gap in its grant of statutory jurisdiction to the Federal Court, then superior courts have this residual power over fed matters

Clark Agri Service Inc v 705680 Ontario Ltd, (1996) 2 CPC (4th) 78

R.49.04(3) – where offer to settle specifies a time for acceptance and it not accepted or withdrawn w/in that time – offer expires.

Any offer, regardless of r.49 or common law, is premised on idea that there is no material change of the thing sought to be settled over

Copland v Commodore Business Machines Ltd. (1985) 52 OR(2d) 586 (SC)

The requisite level of material fact disclosure in a pleading is directly related to the nature of the allegations being made.

If immaterial facts make way into pleading, other party can move to strike them out

Danyluk v Ainsworth Technologies Inc, 2001 SCC 44

“Issue” - a material fact or element that may be part of a broader claim but that was distinctly put in issue AND necessarily had to be determined in the prior proceeding (ex validity of signature).

Court has discretion to deny the application of issue estoppel – more likely to use the discretion with previous admin decisions rather than court decisions.

Dawson v Rexcraft. Storage & Warehouse Inc. (1998), 164 DLR (4th) 257, 20 RPR (3d) 545 (Ont CA)

Only strike out if “plain and obvious” claim cannot succeed

Lee v Globe and Mail (2001), 6 CPC (5th) 354. (Ont SCJ)

Don’t strike something out unless it is plain and obvious that it wont proceed

Test for abuse of process (high threshold) – for when you can use this counterclaim
**P in bringing action is using court for collateral and improper purpose
**Point to overt things P has done to carry out that improper purpose, separate and apart form just bringing proceeding
***This is typically the stumbling part of the test

M (K) v M (H), [1992] 3 SCR 6

Test – would a hypothetical reasonable person in the shoes of the P been acting sensibly in commencing an action earlier or should the person have waited until being able to appreciate that a wrong or wrongs have occasioned significant harm to her well-being.

M.(K.) v M.(H.), [1992] 3 SCR 6

Test – would a hypothetical reasonable person in the shoes of the P been acting sensibly in commencing an action earlier or should the person have waited until being able to appreciate that a wrong or wrongs have occasioned significant harm to her wellbeing

Muscutt v Courcelles (2002), 60 OR (3d) 20 (CA)

Flexible and Fact-Specific test for establishing jurisdiction of the court:
1. Connection between the forum and Ps claim
2. Connection between forum and D
3. Unfairness to D in assuming jurisdiction
4. Unfairness to P in not assuming jurisdiction
5. Involvement of other parties to the suit
6. Courts willingness to recognize and enforce an extra-prov judgment rendered on the same jurisdictional basis
7. Whether the cases in interprov or international in nature
8. Comity and the standards of jurisdiction, recognition, and enforcement prevailing elsewhere

Novak v Bond, [1999] 1 SCR 808

Delay beyond prescribed limitation period is only justifiable if the indiv Ps interests and circumstances are so pressing that a reasonable person would conclude that the P could not reasonably bring an action at the time his or bare legal rights crystallized.

Restrictive subjective/objective approach for s.6(4)(b).

Patrus v Rosset, [2003] Ont SCJ 47

Mandatory mediation is the parties responsibility – parties must make sure that the mediation happens as required.

Peixeiro v Haberman, [1997] 3 SCR 549

Time ran from time he knew or could have reasonably known he had a serious permanent injury (act in this case said could only sue if you had a permanent and serious injury)

R v Caron, 2011 SCC 5

Test for interim costs: 3 factors, with a caution at the end:
1. Ensure the litigant cannot pay for the case and no other realistic options exist for bringing the issue to trial – ex all other funding options exhausted
**Demonstrate person is impecunious
2. The claim prima facie has merit
**This case Crown argument - brought up similar con challenges - BUT court says those decisions were not determinative for C
3. Case is of public importance
**An unresolved issue that transcends indiv interests
***In this case it is in interests of all Albertans bc it could jeopardize the constitutionality of all statutes in AB
(Caution) Must be sufficiently special
**This is in the eye of the beholder
**Leaving this flexible may be bc court doesn’t want to confine the courts discretion