Pleadings and parties

UBC LAW 270B-003Civil Procedure: Nathanson/Crerar

Pleadings

• Two meanings of the word “pleadings”

1. all court documents

• e.g. affidavits, etc.

• “pleadings file”

2. key court documents that set out facts and issues to be decided in litigation, drafted and filed at the beginning

• e.g. Notice of Civil Claim, Response, Counterclaim

• Focus will be on this definition

Kinds of defences

Medieval terms:

• “traverse the pleading” – deny or refusal to admit

• confession & avoidance – true, but not complete story; introduces new facts that undermine the claim

• demurrer – even before assuming the facts to be true, the claim is bad in law

Functions of pleadings

1. Narrow and define issues2. Fair notice to the other side3. Inform court of the issues and set the limits of the action

– Control scope of relevance and scope of litigation– Discovery: cannot demand documents in an area that was not

plead– Trial: almost impossible to add an issue or defence, to fit

evidence, after the fact

4. Provide a permanent record of the issues in the action5. Advocate pleader’s case to opposing party and the court6. Practical: discipline and focus on drafter

Function of pleadings

Pleadings practically and tactically crucial:• Judges pick up pleadings first: which does each side say?

o a point often overlooked: dry, meandering, unpersuasive pleadings

• Ont CA: “it is fundamental to the litigation that lawsuits be decided within the boundaries of pleadings”o four corners and parameters of a piece of litigation: define issues

o control scope of relevance and scope of litigation

o DISCOVERY: determined by pleadings» if not pleaded, no right to demand documents in that area or ask

questions

o TRIAL: almost impossible to add an issue or defence, to fit evidence, after the fact. Must be pleaded.

Sahyoun v. Ho

• Useful overview of pleadings:[16] The new Rules alter the structure in which pleadings are to be prepared. The core object of a notice of civil claim, however, remains the same. …

If a statement of claim (or, under the current Rules, a notice of civil claim) is to serve the ultimate function of pleadings, namely, the clear definition of the issues of fact and law to be determined by the court, the material facts of each cause of action relied upon should be stated with certainty and precision, and in their natural order, so as to disclose the three elements essential to every cause of action, namely, the plaintiff’s right or title; the defendant’s wrongful act violating that right or title; and the consequent damage, whether nominal or substantial. The material facts should be stated succinctly and the particulars should follow and should be identified as such...

Sahyoun v. Ho

[17] These requirements serve two foundational purposes: efficiency and fairness. These purposes align with Rule 1-3 which confirms that “the object of [the] Supreme Court Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.”

[18] I emphasize efficiency because a proper notice of civil claim enables a defendant to identify the claim he or she must address and meet. The response filed by a defendant, together with the notice of civil claim and further particulars, if any, will confine the ambit of examinations for discovery and of the issues addressed at the trial itself. Proper pleadings limit the prospect of delay or adjournments. They allow parties to focus their resources on those matters that are of import and to ignore those that are not. They facilitate effective case management and the role of the trier of fact.

Definitions and fundamentals

• Rule 3-1(2)(a): Contents of notice of civil claim:

A notice of civil claim must do the following: set out a concise statement of the material facts giving rise to the claim

• Rule 3-7(1): Pleading must not contain evidence:

A pleading must not contain the evidence by which the facts alleged in it are to be proved

Material facts

• Material = essential; necessary to make out cause of action or defence

• Start with legal theory the basic elements that need to be proved e.g.1 material elements of negligent misrepresentation:

a) duty of care based on special relationship;

b) representation was untrue, inaccurate or misleading;

c) representer acted negligently;

d) representee must have relied reasonably on representation;

e) reliance must have been detrimental, in that damages suffered.

Material facts

• e.g.2 contract claim: a) contract made (when, who, how, etc.);

b) contract breached (when, who, how, etc.);

c) damages resulted (when, who, how, etc.)

• Defendant responds by agreeing or (most likely) disputing the facts set out by the plaintiff

• Where there is a dispute over material facts, the court must decide– i.e. facts that when decided, will have legal

consequences on one or more parties

Jones v. Donaghey

Decided under new Rules:

• Plaintiff = infant placed in foster care of defendant

• Alleged that defendant negligent and breached duty of care to infant plaintiff in assaulting the plaintiff

• Defendant denied

Jones v. Donaghey

• Plaintiff alleged that 20+ years ago, the defendant had received counselling for anger management

• Trial court had ordered defendant to attend psychiatric examination pursuant to Rule 7-6 on the basis that evidence of her mental condition is “potentially…relevant” to an issue or issue in the case

• Smith J.A. of BCCA disagreed, allowed the appeal, and set aside the order

Jones v. Donaghey

• [7]The function of pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus to arrive at certain clear issues on which both parties desire a judicial decision. …

[8] … An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favour of the defendant will in itself be a defence.

Jones v. Donaghey

• [9] Accordingly, an “issue” is a disputed fact the resolution of which will, without more, have legal consequences as between the parties to the dispute

[10] … Such facts are referred to as “material facts” in Danyluk v. Ainsworth Technologies Inc. at para. 54:

… A cause of action has traditionally been defined as comprising of every fact which it would be necessary for the plaintiff to prove, if disputed, in order to support his or her right to the judgment of the court … Establishing each such fact (sometimes referred to as material facts) constitutes a precondition to success.

Jones v. Donaghey

• The issue raised between the plaintiff and Ms. Donaghey is whether Ms. Donaghey breached her duty of care to the plaintiff in any one or more of the specified ways.

• None of the pleaded allegations put Ms. Donaghey’s mental condition at issue

• Contrast with a personal injury claim where the plaintiff alleges a brain injury (in the pleadings). The defendants put that allegation in issue (in the pleadings) by denying that the plaintiff has suffered injuries as alleged: a (material) issue.

How to draft pleadings

• Plead all material facts necessary to establish causes of action pleaded or else you will risk strike application

• Ensure that there is a factual and good faith basis for the pleading

• Note technical rules for defamation and some other claims

• Not only facts: sometimes must also plead law (e.g. limitation periods, res ipsa loquitur, statues, etc…)

Style

• All statements which need not be proved should be omitted– the “so what” rule: if not material, don’t put it in

– Use legal knowledge and common sense

• Strunk and White– Short, concise statements

– No passive voice

– No adjectives

• Strategic considerations: how much to put in

Advancing alternative positions

• Rule 3-7(6) & (7): Alternative Pleadings

– Can make alternative pleadings provided they are not inconsistent with one another

• It costs nothing to put alternative pleadings at the start; is expensive to amend during trial when evidence turns out to be different

• Cannot put forward directly contradictory or inconsistent pleadings (Rule 3-7(6))

Murrell v. SFU

• Wrongful dismissal claim: ex-employee lost at trial and appealed

• Court unhappy with statement of claim and statement of defence

• Pleadings did not properly disclose case regarding justification for dismissal

• Pleadings should have provided a sound framework for the judge’s reasons, but, here, it was difficult to discern findings of fact

• Para. 24: criticized as “prolix, obfuscatory and mealy-mouthed”

• Para. 25: “not a case in which the merits should be decided despite defective pleadings”

Whiten v. Pilot (SCC)

• Plaintiff explicitly requested punitive damages in prayer for relief, but did not plead material facts in support

• Notice and opportunity to respond requires a specific pleading of the material facts

• pleading “time honoured objectives” inadequate because here, pleadings are conclusory rather than explanatory”

• However no surprise or prejudice, and Pilot should have sought particulars

Lax Kw’alaams Indian Band v. Canada

• Claim of aboriginal right to commercial harvesting of fish within traditional waters

• Significant shift in focus and object of claim

– Plaintiff band asserted broad aboriginal right to commercial harvesting and sale of all fish

– Towards end of trial, shifted claim to “lesser aboriginal rights” to sufficient fish

Lax Kw’alaams Indian Band v. Canada

• Band argued before court could characterize a claimed aboriginal right, it must first hear evidence and make findings about pre-contract practices: like a “commission of inquiry”

• SCC rejected that argument

– Illogical: pleadings determine issues at trial

– Contrary to case authority: plaintiff must first characterize its claim

– Contrary to purpose of pleadings (para. 43)

Ethical/practical points

• Should not be frivolous, vexatious or an abuse• If they are, Rule 9-5 provide summary means for

striking• Definition of abuse of process (CFRAR v. CFJ)

– Do not sue for collateral purposes– Do not include things in pleadings for collateral

purposes– Risk special costs

• Must be good faith basis before you plead– Cannot dream it out of thin air– But you don’t have to have full evidence

New rules vs. old rules: pleadings

• General concepts unchanged

• Notice of civil claim: 3 parts

– Facts

– Relief sought

– Legal basis

• Response

– Structured similarly and designed to be directly responsive to Notice of Civil Claim

– Arguably less scope for framing and storytelling

• Structure of facts first, legal conclusions later

• Rule 3-3(2)(a)(ii): requirement to provide own version of any fact that is denied may encourage “atomistic” approach to pleading

New rules vs. old rules: pleadings

Demanding documents referred to in pleadings: no longer a right under Rules, there but you should still demand

Amendment of pleadings

• Rule 6-1 – Amendment of Pleadings: 1 free amendment– Response to error or change in perceived facts– Can be made at any stage, even at trial or after: Murrell

• Discretionary order

– 1 free amendment before case planning conference or service of notice of trial, whichever is earlier

– Absent irremediable prejudice, difficult to oppose– Should amend in response to where other party amends– Court can order amendments on terms to address any prejudice

• e.g. preserve limitation period defences, costs, adjournment, etc…

– Note that adding parties is different than making an amendment

• Always need an order to add parties

Particulars purpose

1. Inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved

2. Prevent the other side from being taken by surprise at trial

3. Enable the other side to know what evidence they ought to be prepared with and prepare for trial

4. Limit the generality of pleadings5. Limit and decide the issues to be tried, and as to

which discovery is required6. Tie the hands of the party so that s/he cannot without

leave go into any matters not included

Particulars

• Rules 3-7(18) – (24): Particulars

• Discretionary order

• Different approach compared with pleadings proportionality is important: are particulars really important in this case

• Distance between material facts and evidence

• Timing issue: before or after examination for discovery? Before or after document production?

Particulars: GWL v. WR Grace

• Civil procedure based on asbestos claims

• Particulars may be within document (Notice of Civil Claim, Response to Civil Claim), or in a separate document as a result of a demand 3-7(22) and (23)

• Some particulars required upfront (3-7(18) and 3-7(21))– Rule 3-7(18): When particulars necessary

If the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, or if particulars may be necessary, full particulars, with dates and items if applicable, must be stated in the pleading

– Contract: what, where, who made terms, whether express or implied

Particulars

• Rule 3-7(24): Demand for particulars not a stay of proceedings– deadline for Response to Civil Claim still continues to

tick

• Strategy: standard demand; discourage frivolous claims

• Strategic problem with demanding particulars: can backfire– Forces the other party to be organized

– Allows for endless amendments

Striking pleadings

• Rule 9-5(1): Scandalous, frivolous or vexatious matters: can strike based ona) No claim or defenceb) Unnecessary, scandalous, frivolous or vexatiousc) Prejudice or embarrass fair trial or hearingd) Abuse of process

• Key cases determined on demurrer/strike: Foss v. Harbottle, Donoghue v. Stevenson, Hercules Management

• Cheslatta v. BC– Chelsatta sought declaration that band had aboriginal right to

fish, but did not assert any actual or threatened violation of right

– BCSC and BCCA struck

Test for striking pleadings

• Is it “plain and obvious” that the pleadings violate (a), (b), (c), or (d)

– “plain and obvious” = “no reasonable cause of action”

– Court will treat allegation of fact as true

Striking pleadings cont…

• Make allowance for poor drafting and possibility for amendment

• Striking pleadings is reserved for radical and incurable defects

• Court will read pleadings as generously as possible– if could succeed, plaintiff should not be driven for

judgment seat

• Complexity, novelty, and strength of defence should not block claim

• Tantamount to an abuse of process

Practical considerations

• Can it be fixed?

• Very high test: “absolutely beyond doubt”; “absolutely and almost incontestably bad”

• Can simply go back and amend: strike it down: not killing the action

• A successful strike application won’t usually defeat an action. It will just delay usual leave to amend granted

CFAR v. Canadian Jewish Congress

• Director sued for conspiracy

• fails to plead 2 people;

• fails to plead unlawful conduct, agreement, etc…

• 2 reasons for case: security for costs & striking

• plaintiff CFAR = odd political group

• defamation claim against Jewish group for linking it to hate groups

• application to strike 2 paras (9 and 10) of statement of claim of CFAR under R. 19(24) as discovering no reasonable claim; frivolous and embarrassing; or an abuse (also section for costs)

CFAR v. Canadian Jewish Congress

• Para 10 (p. 126) struck because it disclosed no reasonable claim; alternatively, it was unnecessary and scandalous

• Para 9 (p. 126) not struck; could establish malice in sense of collateral purpose: malice very important in defamation claim

• This was an example of reading pleadings generously; attention at persuasion gone overboard

• Interaction between new guiding principle of proportionality and application to strike

CFAR v. Canadian Jewish Congress cont…• [36] With respect to the concept of proportionality, I observe that the

amount involved in this proceeding is substantial, the issues in dispute would appear to be of considerable importance not only to the parties, which is inevitable, but to a number of other universities and colleges in British Columbia and across Canada, and the proceeding is at least sufficiently complex to render a summary trial impracticable.

• [37] But setting that aside, I am unable to accept that a pleading that is not susceptible of being struck out on the grounds enumerated in Rule 9-5 may nevertheless be successfully attacked as disproportionate within the contemplation of Rule 1-3. If an amendment pleads an additional defence that is known to law and relevant to the claim, then it should be allowed to stand no matter how little is at stake, how unimportant the issues, or how straightforward the claim. Proportionality is intended to enhance, and should never inhibit or curtail, the determination of a proceeding on its merits

National Leasing

• 1. This is an application by the defendant by counterclaim to dismiss the counterclaim on the ground that it discloses no reasonable claim.

• 9. If Mr. Shandler genuinely believes he has a defence against the plaintiff’s claim, I would respectfully suggest that, without sacrificing his friendship with Mr. Naudi, he might seek advice from someone whose theories of pleadings and grammar are rather more attuned to traditional usage. It is certainly thought-provoking to consider the “de” in “defendant” as a negation of a root word “fendant”, and “plaintiff” as a verb. (If the OED is watching, Mr. Naudi said it first, not I.) But the judges and masters of the Supreme Court of British Columbia are required to be somewhat conservative, if not downright pedantic, when it comes to pleadings. Our scribble/scribble-procedures are not inflexible, but they do require that counterclaims disclose a comprehensible, arguable cause of action, and I am afraid that this one does not.

Joly v. Pelletier

• 2. Mr. Joly’s claims in these two actions, and in several others not currently before me, all centre on his firm assertion that he is not a human being; rather a martian. As I understand them, the nature of his complaints against the numerous defendants who include a number of doctors, medical facilities and government agencies is that they have conspired with the American government in its attempts to eliminate him and have otherwise taken various steps to interfere with his ability to establish himself and live freely as a martian.

• 3. As indicated, there are two actions before me. At the beginning of the hearing Mr. Joly advised me that he has recently commenced a third action against, among others, the Central Intelligence Agency, President Clinton and the Honourable Anne McClellan for interfering with his D.N.A. test results that prove that he is, in fact, not human.

Joly v. Pelletier cont…

• 1. In my opinion there are at lease two reasons why the two Statements of Claim in question ought to be struck and the actions dismissed:– 1. Neither pleading discloses a cause of action. While conspiracy to do

harm to someone is the basis of many actions in this Court there is a fundamental flaw in the position of Mr. Joly. Rule 1.03 defines plaintiff as “a person who commences an action”. The New Shorter Oxford English Dictionary defines person as “an individual human being”. Section 29 of the Interpretation Act provides that a person includes a corporation. It follows that if the plaintiff is not a person in that he is neither a human being nor a corporation, he cannot be a plaintiff as contemplated by the Rules of Civil Procedure. The entire basis of Mr. Joly’s actions is that he is a martian, not a human being. There is certainly no suggestion that he is a corporation. I conclude therefore, that Mr. Joly, on his pleading as drafted, has no status before the Court.

Joly v. Pelletier cont…

– 2. In respect to the motions brought under rule 25.11 I am of the view that the test has been passed in the circumstances of this case. In other words, I am satisfied that the claims are frivolous and vexatious and constitute an abuse of the process of this Court. In addition to the fact that the tort of conspiracy has not been remotely properly pleaded, no damages have been claimed and many of the defendants are not even legal entities capable of being sued. More importantly, with all respect to Mr. Joly and his perception of reality, these actions are patently ridiculous and should not be allowed to continue as they utilize scarce public resources not to mention the time and money of the numerous defendants who have been forced to defend these actions.

Parties

• Who to sue? How many to name?

– Too many: unwieldy; lots of discoveries; costs risks

– Too few: miss key party

• Corporation and individual director?

– Foss v. Harbottle

– Ethical? Vexatious?

• John Doe

– Norwich Pharmaceutical Bill of Discovery

– compel defendant to identify true perpetrator

Parties

• Rule 6-2(7): Adding, removing or substituting parties by order:(7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10),

(a) order that a person cease to be party if that person is not, or has ceased to be, a proper or necessary party,

(b) order that a person be added or substituted as a party if

(i) that person ought to have been joined as a party, or

(ii) that person's participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated on, and

Parties

(c) order that a person be added as a party if there may exist, between the person and any party to the proceeding, a question or issue relating to or connected with

(i) any relief claimed in the proceeding, or

(ii) the subject matter of the proceeding that, in the opinion of the court, it would be just and convenient to determine as between the person and that party.

• Rule 6-2(10): Consent required:(10) A person must not be added or substituted as a plaintiff or

petitioner without the person's consent.

Parties

– Low threshold; issue between the parties

• Why? Because can always draft new claim and join

– Discretionary; just and convenient

– Rules 6-2(7) and 6-2(10): three situations, three tests

• If you satisfy any one, you can add party

Case planning conference

Part 5 – Case Planning (Rules 5-1 – 5-4)1. Like a case management conference process and order, but broader and more powerful

– XFD location• e-discovery• experts• size and scope of litigation include other claims vs. other parties• mode of trial (18A, severance, etc.)• trial length (v. key)

2. Party-initiated (or court may order)3. Beforehand, parties file case plan proposals (plaintiff first) (Form 20)4. Required elements include

a) document discoveryb) examination for discoveryc) dispute resolution proceduresd) experte) witness listsf) trial type, length and scheduling

5. CPC before judge or master6. Once you get to CPC, court has wide powers to make orders including on its own motion (R

5-3)

Case planning conference cont…

7. Consequences– Better be prepared and think well ahead– Does this drive too much cost and preparation to each in case, before

discovery process? Or does it afford resolution opposing for each resolution? And creativity?

– “Horses for Courses”: good possession of earlier, less costly resolution of simpler cases or one issue cases; risk of doing, too much, to each in complex cases not yet fully revealed

– Risk regarding judges or masters making implied case planning, decisions without context, evidence (no affidavits allowed) and without having to live with consequences like a case management conference judgment does

– How will it be applied?• How forceful will court result be each on or if counsel unprepared?• How flexible on amendments:

– Good practice, like case management conferences: meet and confer