Friday, January 13, 2017

Discovery of a Non-Party

Discovery of a Non-Party

Discovery of a non-party is fairly common in the Uniter States.  So under the U.S. Federal Rules of Civil Procedure, Rule 30: 
A party may, by oral questions, depose any person, including a party, without leave of court ... .
In Ontario, of course, examination for dsicovery of non-parties is limited as recently described in Mancinelli v Royal Bank, 2017 ONSC 87.
Broadly stated, an order for discovery of a non-party is an exceptional order; such an order should be made only in exceptional circumstances: Morse Shoe (Canada) Ltd. v. Zellers Inc., 1997 CanLII 1573 (ON CA), [1997] O.J. No. 1524 (C.A.) at para. 19.  Non-parties are not generally subject to the discovery: Reichmann v. Vered, [1998] O.J. No. 3751 (C.A.) at para. 8; Kerr v. McLeod, [2002] O.J. No. 788  (Div. Ct.) at para. 2.  That said, when a non-party has information not otherwise available and fairness requires it, discovery can be available:  Rule 31.10.
The rule for the production of documents from a non-party requires that the information sought is relevant to a "material issue" in the action. This test of relevancy is higher than the "any matter in issue" standard for obtaining production from a party to the action: Lowe v. Motolanez (1996), 1996 CanLII 37 (ON CA), 30 O.R. (3d) 408 (C.A.) at p. 413; Tribax Management Ltd. v. Laswind Investment Ltd., [2006] O.J. No. 3439 (S.C.J.) at para. 5.
Disclosure and production of a document from a non-party will be provided as a matter of fairness and necessity. The court determines whether it would be unfair to require the moving party to proceed to trial without a document in the possession of a non-party, and balances that against the interests of the non-party, which include concerns about privacy, inconvenience, and exposure to liability: Lowe v. Motolanez, supra; Tetefsky v. General Motors Corp., supra at paras. 41-42; Fairview Donut Inc. v. TDL Group Corp., 2011 ONSC 247 (CanLII) at paras. 10-11. Although production can be ordered from a non-party, it is not routinely sought and the threshold for granting it is high: Olendzki v. W.A. Baker Trucking Ltd., [2006] O.J. No. 256 (S.C.J.).
In determining whether to allow dsicovery of a non-party the Court will consider (Mancinelli, supra):
"[47]            In making the determination whether to permit third party discovery of documents, the court may consider the following factors: (1) the importance of the document to the issues in the litigation; (2) whether production at the discovery stage as opposed to production at trial is necessary to avoid unfairness to the moving party; (3) whether the examination of the opposing party with respect to the issues to which the documents are relevant would be adequate to obtain the information in the document; (4) the availability of the document or its information from another source that is accessible to the moving party; (5) the relationship of the non-party from whom production is sought to the litigation and the parties to the litigation; and (6) the position of the non-party with respect to production: Morse Shoe (Canada) Ltd. v. Zellers Inc., supra; Ontario (Attorney General) v. Ballard Estate (1994), 26 O.R. (3d) 189 (C.A.); McGillivary v. Toronto Police Services Board, 2014 ONSC 865 (CanLII), 2014 ONSC 865 (Master); Durling v. Sunrise Propane Energy Group Inc., [2008] O.J. No. 5031 (Master); Chiarella v. Simon, [2007] O.J. No. 8 (S.C.J.); Colville-Reeves v. Gray, [2003] O.J. No. 1304 (Master); Boucher (Litigation Guardian of) v. Charles, 2013 ONSC 3120 (CanLII), 2013 ONSC 3120 (Master).

[48]           The test under rule 31.10 for the examination of a non-party involves four components, all of which must be established for there to be an examination of a non-party; namely: (1) there is reason to believe that the non-party has information relevant to a material issue; (2) the examining party has been unable to obtain the information from the examined party or from the non-party; (3) it would be unfair to the examining party to proceed to trial without the examination of the non-party; and (4) the examination will not unduly delay the commencement of the trial of the action, entail unreasonable expense for other parties, or result in unfairness to the person the moving party seeks to examine: Rothwell v. Raes, [1986] O.J. No. 2495 (Div. Ct.); Famous Players Development Corp. v. Central Capital Corp. (1991), 1991 CanLII 7202 (ON SC), 6 O.R. (3d) 765 (Div. Ct.); Din v. Melady, 2010 ONSC 4865 (CanLII), 2010 ONSC 4865 (Master); McDermid Paper Converters Ltd. v. McDermid, 2010 ONSC 5404 (CanLII); Manga Hotels (Toronto) Inc. v. GE Canada Equipment Financing G.P., 2014 ONSC 2699 (CanLII). To satisfy the test under rule 31.10, the party requesting an order to examine a non-party for discovery must show that the party who was examined for discovery refused or constructively refused to provide the information sought from the non-party: Famous Players Development Corp. v. Central Capital Corp., supra."

As can be seen discovery of non-parties remains limited in Ontario

Tuesday, January 10, 2017

Think before you post!

An employee who tweeted her boss was a racist got fired; that firing was (probably) legally justified. 


As between an employer and employer there are two central obligations:


• trust and confidence; and


• good faith.


If something comes up at work – say a racist comment by your boss -- you have an obligation to try to resolve it directly with your employer.  Going online and complaining is not acting in good faith.  Even if what you say is true that may not be enough to save your job.


The obligations of trust and confidence (probably) gives an employer grounds to dismiss if there are derogatory online postings.


Think before you post!




Friday, December 16, 2016

Civil Contempt

Greenberg v. Nowack, 2016 ONCA 949:


[25]        The test for civil contempt was articulated by the Supreme Court in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 33-35:

1.    The order alleged to have been breached must state clearly and unequivocally what should and should not be done;

2.    The party alleged to have breached the order must have had actual knowledge of it; and

3.    The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels.

[26]        Each element of civil contempt must be proven beyond a reasonable doubt: Carey v. Laiken, at para. 32. A judge has discretion to decline to make a contempt finding where the three-part test has been met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order: Carey v. Laiken, at para. 37.

[27]        In this case, at para. 48 of his reasons, the motion judge described the three-part as follows: first, whether the order clearly and unequivocally states what should and should not be done; second, whether the alleged contemnor disobeyed the order deliberately and wilfully; and third, whether the contempt was proven beyond a reasonable doubt. This is inconsistent with how the test is described in Carey v. Laiken. The question is not whether the alleged contemnor wilfully and deliberately disobeyed the relevant order. Rather, what is required is an intentional act or omission that breaches the order. "The required intention relates to the act itself, not to the disobedience; in other words, the intention to disobey, in the sense of desiring or knowingly choosing to disobey the order, is not an essential element of civil contempt": Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf, 4th ed. (Toronto: Canada Law Book, 2015), at para. 6.190 (citations omitted). Requiring the alleged contemnor to have intentionally disobeyed a court order would result in too high a threshold: Carey v. Laiken, at para. 38.




Friday, December 9, 2016

Rectification in the Supreme Court of Canada

Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56:


Rectification is an equitable remedy designed to correct errors in the recording of terms in written legal instruments. It is limited to cases where a written instrument has incorrectly recorded the parties' antecedent agreement. In other words, rectification is not available where the basis for seeking it is that one or both of the parties wish to amend not the instrument recording their agreement, but the agreement itself.


Where the error is said to result from a mistake common to both or all parties to the agreement, rectification of the instrument is available upon the court being satisfied that there was a prior agreement whose terms are definite and ascertainable; that the agreement was still in effect at the time the instrument was executed; that the instrument fails to accurately record the agreement; and that the instrument, if rectified, would carry out the parties' prior agreement.


 It falls to a party seeking rectification to show not only the putative error in the instrument, but also the way in which the instrument should be rectified in order to correctly record what the parties intended to do. The applicable standard of proof to be applied to evidence adduced in support of a grant of rectification is the balance of probabilities. A court will typically require evidence exhibiting a high degree of clarity, persuasiveness and cogency before substituting the terms of a written instrument with those said to form the parties' true intended course of action. On rectification, both equity and the civil law are ad idem, despite each legal system arriving at it by different paths — the former being concerned with correcting the document, and the latter focusing on its interpretation. This convergence is undoubtedly desirable.





Thursday, December 8, 2016

Justice of the Peace

Many people think a Justice of the Peace is someone who performs marriages and that performing marriages is the main work of a justice of the peace.  This is an understandable belief because in the United States many Justices of the Peace are, in effect, secular clergy whose main job is to conduct marriages;  since much of our television and movies come from America the image of a Justice of the Peace being focussed on marriages has become ingrained in Canadian thinking.

In fact, while a Justice of the Peace in Canada can perform a marriage that is quite unusual and performing marriages is certainly not the major role of a justice of the peace.

The history of justices of the peace is ancient.  In 1195, King Richard the Lionheart appointed some of his knights to preserve the peace in unruly areas. They were responsible to the King for ensuring that the law was upheld and were known as "keepers of the peace".  By the 1300s the idea of a protector of the peace evolved beyond someone who could keep the peace with a sword and became a more judicial office.  So an English law of 1327 had referred to "good and lawful men" to be appointed in every county in the land to "guard the peace"; justice of the peace as a term comes a little later, from 1361, and, amazingly, their role has been more or less the same since then, almost 700 years later.  A modern justice of the peace in Rankin Inlet would being doing most of the same things a justice of the peace would be doing in Stratford, England, in say 1400!

Justices of the Peace are major participants in the justice system and act as judicial officers, in effect judges, on many matters of very great importance.  For example, a justice of the peace is likely to be the person deciding, if you get arrested and the RCMPolice do not release you right away, whether you will be released on bail or whether you will have to spend your time in jail until your trial.  Justices of the Peace decide on whether a search warrant is to issue to search your home or business.  Justices of the Peace act as the judge in many of the less serious criminal and regulatory cases and they have some jurisdiction in family law matters.  As you can see, a justice of the peace is a very important person.

Justices of the Peace are usually lay people, working and living in the community where they sit; they often carry out these duties on a part-time basis.  As lay people living in the community a Justice of the Peace has a good sense of what is going on locally and can make informed decisions about the best way to ensure justice is done in the community.  

Although they are similar to judges, justices of the peace are not judges and so they are called by a slightly different name in Court.  A judge is called "Your Honour" while a justice of the peace is called "Your Worship".  Regardless, both deserve respect in court! 

Of the Law Societies of Upper Canada and Nunavut 

Monday, December 5, 2016

Resist Arrest

No one likes to be arrested.  Sometimes people use strong language in response to being arrested.  Some people are very rude on being arrested.  While imprudent (you should always be polite when dealing with the police) such conduct is not criminal in itself.  Remember, even if you are really upset at being arrested the police are just doing their job and they deserve respect and not insults!  But again, being rude is not criminal.

What is criminal is resisting arrest.  The Criminal Code provides:

129. Every one who

(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,

… is guilty of

(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(e) an offence punishable on summary conviction.


Put in a nutshell, "resistance" involves applying force to a police officer, or doing something which requires force or energy which prevents or interferes with the officer's arrest.  Mere non-cooperation does not amount to the offence.  

For example, in a case from the 1970s a man was arrested but refused to accompany the police. As a result, the police lifted the accused up under each arm and carried him to the police truck. The accused did not exert any direct physical force on the police; despite that he was charged with resist arrest.  The trial judge stated:

[T]he word resist is more properly descriptive of acts of opposition to the efforts of the officer demonstrated by direct activity of a physical sort on the part of the accused. He must be shown to have employed some degree of force. In other words, the conduct of the accused must amount to more than what has in the past been referred to as passive resistance, that is, resistance without some degree of force or violence, regardless of how minimal, before it can be said that the accused has committed the offence of resisting. His conduct, without such positive resistance, may very well amount to obstruction of the officer, but it does not, in my opinion, amount to resistance under the section.

The offence of resisting a peace officer requires more than being uncooperative: it requires active physical resistance. 

Does this mean that on being arrested it makes sense to go limp and force the police to carry you to jail? 


Even if non-cooperation does not amount to a criminal act it makes sense to cooperate with the police regardless of whether you are, or are not, guilty.  If you are innocent, then cooperation is proper and appropriate and if you are guilty being difficult just makes things worse.  Note, however, that cooperation does not mean you should answer questions from the police until you have spoken to a lawyer and received some advice over what you should or more likely should not say.