LAW 469.002 Civil Procedure Week 2: Theoretical Perspectives

1. LAW 469.002 Civil Procedure Week 2: Theoretical Perspectives 1 Gavin Cameron January 10, 2019

2. Introduction 2 • “Civil litigation is an institutional arrangement for using state power to bring a recalcitrant reality closer to our chosen ideals … We train our students in the tougher arts so that they may help secure all that the law promises, not because we want them to become gladiators or because we take a special pleasure in combat” [emphasis added] • Owen Fiss in Walker p. 828

3. Introduction (cont.) 3 • Takeaways • Dispute resolution mechanisms • Values underlying procedural rules • Conditions necessary for fair procedure

4. Introduction (cont.) 4 • Cojocaru v. British Columbia Women’s Hospital • Conditions necessary for fair procedure • The adversary system • Sir Jack Jacob, “The Fabric of English Civil Justice” • The rule of law and unconventional rules of procedure • British Columbia v. Imperial Tobacco • Judicial independence, the rule of law and unconventional rules of procedure

5. Introduction (cont.) 5 • BC Code and ethical rules in B.C. • Ethics in the adversary system • Murphy v. Dodd • Tremblay v. Daigle • Meek v. Fleming

6. Introduction (cont.) 6 • Different ethical perspectives • Fiss’ critique of settlement • Duncan Kennedy, “The Responsibility of Lawyers for the Justice of Their Causes” • Ethics in the adversary system revisited • Maples v. Thomas

7. Takeaways 7 • Procedure affects legitimacy and acceptance of judicial decisions, even unfavourable ones, which is essential to the maintenance of the rule of law • There is no universally fair or right procedure; the necessary procedure varies with the interests at stake • Procedural questions are not independent of outcome; procedures that do not produce fair outcomes will eventually be discredited

8. Takeaways (cont.) 8 The rules and procedural law reflects particular balances to be struck between important values; in each case, be alive to the policy that animates the particular rule Know the values underlying the rules Know the conditions necessary for fair procedure and why they are necessary

9. Takeaways (cont.) 9 Understand and reflect on the ways that the cases illustrate the ways the adversary system operates and its limitations Be familiar with the structure of the BC Code and the commonly engaged ethical rules highlighted

10. Dispute resolution mechanisms 10 Coin toss (e.g. NFL game) Rock, paper scissors Champions (the movie “Troy”) I cut, you choose (akin to shotgun clause) Ouiji board Auction (distributive issues) Default rules

11. Dispute resolution mechanisms (cont.) 11 • Key point: procedure should be: • Rational • Proportional to the issue to be decided • See SCCR 1-3(2) • Calculated to produce a correct outcome

12. Values underlying procedural rules 12 Correctness Speed Cost Certainty Finality

13. Values underlying procedural rules (cont.) 13 Consistency Efficiency Privacy Transparency Simplicity Equality

14. Values underlying procedural rules (cont.) 14 • Also: • Fairness • Proportionality • Intelligibility and clarity • Accessibility

15. Conditions necessary for fair procedure 15 • Judicial independence • Natural justice • Notice, right to participate, audi alteram partem, open court principle, duty to give reasons • Mechanisms to ensure correctness • Judicial review

16. Conditions necessary for fair procedure (cont.) 16 • Rule of law macro • Law is supreme, the executive respects the law and judicial decisions, judicial decisions are enforced • Rule of law micro • Courts follow set rules of procedure, not totally ad hoc • Finality rules • Res judicata, issue estoppel, double jeopardy • Procedures which produce results most often consistent with the underlying merits of the dispute

17. Conditions necessary for fair procedure (cont.) 17 • We take these for granted, but consider a court system, e.g. in some developing countries where: • Judges have no security of tenure and can be fired or replaced or are not independent of the executive • Trials are held in secret • Trials are decided without regard to the evidence, or by those who did not hear it • Executive does not obey or enforce judicial decisions • Araya v. Nevsun Resources Ltd., 2017 BCCA 402

18. Cojocaru v. British Columbia Women’s Hospital 18 • “Troubling” judicial copying of plaintiff’s written submissions at trial in a compromised baby medical malpractice action • 368 paragraph judgment; 321 paragraphs copied from plaintiff’s submissions • Issue was whether extensive, unattributed incorporation of one party’s position indicated the trial judge did not put his mind to the issues and decide them impartially

19. Cojocaru (cont.) 19 • The function of reasons • Advising parties and public of basis for decision • Basis for appellate review • Appeal, however, is from the order, not the reasons

20. Cojocaru (cont.) 20 • Judicial decisions attract a presumption of judicial integrity and impartiality • Rebuttable by intrinsic or extrinsic evidence • Intrinsic evidence is found in reasons themselves • E.g. Unintelligible reasons • Extrinsic evidence is external to reasons • E.g. Deciding case before hearing submissions • Evidence demonstrating a reasonable apprehension of bias

21. Cojocaru (cont.) 21 Test is whether a reasonable person, fully informed, would conclude the judge failed to come to grips with the issues and make an impartial and independent decision

22. Cojocaru (cont.) 22 • Court concluded presumption not displaced • “Borrowed prose” does not on its own show judge did not turn his mind to the issues • Judgment writing is not an exercise in originality • Judge departed from the plaintiff’s position in important respects, demonstrating independence and impartiality

23. Cojocaru (cont.) 23 • That did not end the matter • Errors the defendants framed as procedural unfairness, including absence of causation analysis, went to substance • Usual appellate questions of error of law or palpable and overriding error of fact • Appeal allowed against all but one defendant • $4 million damages award not disturbed

24. Sir Jack Jacob and some observations about the adversary system 24 • English civil justice system characterised by party prosecution, party autonomy and court as “umpire” • Party prosecution • Parties control how to frame case, what evidence to present, pace and enforcing compliance with rules • Party autonomy • Parties and not court control selection and initiation of cases, discontinuance and settlement

25. Sir Jack Jacob (cont.) 25 • Role of court: “umpire” • Judges sit not to discover truth but to answer “how’s that” • English judges “play the umpire rather than the inquisitor” • Court • Cannot appoint expert • Has no power or duty to promote settlement • Relies on advocates to cite the law and does not normally do own research

26. Sir Jack Jacob (cont.) 26 • Real question about the currency of this view • The court: • Can appoint own expert (R. 11-5) • Has explicit powers to promote settlement • Ordering parties to attend settlement conference (R. 9-2; R. 5-3(1)(o)) • Enforcing party-initiated mandatory mediations • (Notice to Mediate Regulation) • Awarding enhanced costs for unreasonable refusal to settle (R. 9-1(5)) • Will do research and can identify other issues but must be fair to parties (Saadati v. Moorhead, 2015 BCCA 393) • Has a duty to ensure the fairness of the trial process, independent of positions taken by counsel

27. Sir Jack Jacob (cont.) 27 • The “martial theme” • “In litigation as in war” • Counsel may • “take advantage of any weaknesses or mistakes of the opposite party” • Within the limits of professional propriety, employ surprise and technicalities “as weapons in the conduct of litigation”

28. Sir Jack Jacob (cont.) 28 • The “martial theme” is not the modern view either • The system’s failures and excesses often arise from unrestrained adversarial zeal • Murphy v. Dodd (failure to make full disclosure on without notice application) • Meek v. Fleming (misleading court at trial) • Grossman v. Toronto General Hospital (document discovery) • The system is, in a sense, in the hands of the lawyers. The opportunity for stonewalling and improper concealment is there. Some solicitors grasp it. They will make only such production as can be forced from them. That is bad practice. It can work real injustice. It causes delay and expense while the other side struggles to see that which they had a right to see from the first… The worst consequence is that the strategy is sometimes successful, giving its perpetrators a disreputable advantage. The practice must be condemned. If it were widespread it would undermine the trial system. • Vancouver Community College v. Phillips Barratt (experts)

29. Sir Jack Jacob (cont.) 29 • While system is adversarial, trend is decidedly away from surprise and ambush and toward full disclosure • We should not encourage or glorify the martial theme • CLE, A Litigator’s Arsenal?

30. Sir Jack Jacob (cont.) 30 • Fiss on the “martial theme” • “We train our students in the tougher arts so that they may help secure all that the law promises, not because we want them to become gladiators or because we take special pleasure in combat”.

31. British Columbia v. Imperial Tobacco 31 • Challenge to Tobacco Damages and Health Care Costs Recovery Act (B.C.) • Act created cause of action and altered rules of procedure of general application • Manufacturers argued • Judicial independence violated • Act violated the rule of law • “Judicial independence can abide unconventional rules of civil procedure and evidence” (per Major J.)

32. Imperial Tobacco (cont.) 32 • Questions to consider • Is the result as clear as Major J. makes it? • At what point does the state’s creation of special rules of procedure to benefit itself become so unfair as to be unconstitutional? • According to Major J., this is just like Air Canada and Authorson, where legislation was designed to target and defeat (and did) specific claims • Maybe you don’t like all three decisions?

33. 1. Sources of Ethical Obligations 33 • B.C. Code • Law Society Rules • Canadian Bar Association's Code of Professional Conduct • Advisory only • Statutes • Common Law • SCCR, SCRF, Practice Directions

34. 2. Code of Professional Conduct for British Columbia (“B.C. Code”) 34 Adopted by Benchers of Law Society of B.C. Based on model code of conduct recommended by Federation of Law Societies Law Society Rules, 2015 also relevant and binding

35. 3. B.C. Code: Application and Enforcement 35 Applies to practice of law in B.C. Enforced by Discipline Committee of Law Society

36. 4. B.C. Code: Structure 36 • Canons of legal ethics • Specific rules with commentary • Key themes: • Integrity • Fair dealing • Avoidance of conflicts • Courtesy • Competence

37. 5. Canons of Legal Ethics 37 • Statement of general principles that underlie Rules in B.C. Code 2.1 Canons of Legal Ethics … A lawyer is a minister of justice, an officer of the courts, a client’s advocate and a member of an ancient, honourable and learned profession. In these several capacities, it is a lawyer’s duty to promote the interests of the state, serve the cause of justice, maintain the authority and dignity of the courts, be faithful to clients, be candid and courteous in relations with other lawyers and demonstrate personal integrity.

38. 6. Canons of Legal Ethics (cont.) 38 • Duties owed to: • The State • Courts and Tribunals • Clients 2.1-3(a) A lawyer should obtain sufficient knowledge of the relevant facts and give adequate consideration to the applicable law before advising a client, and give an open and undisguised opinion of the merits and probable results of the client’s cause. The lawyer should be wary of bold and confident assurances to the client, especially where the lawyer’s employment may depend on such assurances. The lawyer should bear in mind that seldom are all the law and facts on the client’s side, and that audi alteram partem (hear the other side) is a safe rule to follow.

39. 6. Canons of Legal Ethics (cont.) 39 (c) Whenever the dispute will admit of fair settlement the client should be advised to avoid or to end the litigation. (e) A lawyer should endeavour by all fair and honourable means to obtain for a client the benefit of any and every remedy and defence that is authorized by law. The lawyer must, however, steadfastly bear in mind that this great trust is to be performed within and not without the bounds of the law. The office of the lawyer does not permit, much less demand, for any client, violation of law or any manner of fraud or chicanery. No client has a right to demand that the lawyer be illiberal or do anything repugnant to the lawyer’s own sense of honour and propriety.

40. 6. Canons of Legal Ethics (cont.) 40 (k) A lawyer who appears as an advocate should not submit the lawyer’s own affidavit to or testify before a court or tribunal except as to purely formal or uncontroverted matters, such as the attestation or custody of a document, unless it is necessary in the interests of justice. If the lawyer is a necessary witness with respect to other matters, the conduct of the case should be entrusted to other counsel.

41. 6. Canons of Legal Ethics (cont.) 41 • Other lawyers 2.1-4(a) A lawyer’s conduct toward other lawyers should be characterized by courtesy and good faith. Any ill feeling that may exist between clients or lawyers, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. Personal remarks or references between lawyers should be scrupulously avoided, as should quarrels between lawyers that cause delay and promote unseemly wrangling.

42. 6. Canons of Legal Ethics (cont.) 42 (c) A lawyer should avoid all sharp practice and should take no paltry advantage when an opponent has made a slip or overlooked some technical matter. A lawyer should accede to reasonable requests that do not prejudice the rights of the client or the interests of justice. • Oneself

43. 7. Relations with clients 43 3.2-1 A lawyer has a duty to provide courteous, thorough and prompt service to clients. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient and civil. 3.2-2 When advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter. 3.2-4 A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.

44. 7. Relations with clients 44 3.3-2.1 A lawyer who is required, under federal or provincial legislation, to produce a document or provide information that is or may be privileged must, unless the client waives the privilege, claim solicitor-client privilege in respect of the document. 3.4-1 A lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code.

45. 8. Lawyer as Advocate 45 5.1-1 When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect. 5.1-2 When acting as an advocate, a lawyer must not: (a) abuse the process of the tribunal by instituting or prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring the other party; (b) knowingly assist or permit a client to do anything that the lawyer considers to be dishonest or dishonourable;

46. 8. Lawyer as Advocate 46 (f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument or the provisions of a statute or like authority; (g) knowingly assert as fact that which cannot reasonably be supported by the evidence or taken on judicial notice by the tribunal; (h) make suggestions to a witness recklessly or knowing them to be false; (i) deliberately refrain from informing a tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by another party;

47. 8. Lawyer as Advocate 47 (j) improperly dissuade a witness from giving evidence or advise a witness to be absent; (o) needlessly inconvenience a witness; 5.1-5 A lawyer must be courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings.

48. 9. Dealings with Witnesses/Self Represented Parties 48 • 5.3 Subject to the rules on communication with a represented party set out in rules 7.2-4 to 7.2-8, a lawyer may seek information from any potential witness, whether under subpoena or not, but the lawyer must disclose the lawyer’s interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way. • 7.2-9 When a lawyer deals on a client’s behalf with an unrepresented person, the lawyer must: • (a) urge the unrepresented person to obtain independent legal representation; • (b) take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer; and • (c) make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client.

49. 9. Dealings with Witnesses 49 5.4-2 (d) during examination for discovery, the lawyer may discuss the evidence given or to be given by the witness on the following basis: (i) where a discovery is to last no longer than a day, counsel for the witness should refrain from having any discussion with the witness during this time. (ii) where a discovery is scheduled for longer than one day, counsel is permitted to discuss with his or her witness all issues relating to the case, including evidence that is given or to be given, at the conclusion of the discovery each day. However, prior to any such discussion taking place, counsel should advise the other side of his or her intention to do so.

50. 9. Dealings with Witnesses 50 (iii) counsel for the witness should not seek an adjournment during the examination to specifically discuss the evidence that was given by the witness. Such discussion should either wait until the end of the day adjournment or until just before re-examination at the conclusion of the cross-examination.