Civil Procedure – C. David Freedman: Estates, Trusts & Guardianship Law

As you know, litigation is a formal process leading to the determination of one or more issues in dispute by a court. The rules which govern the procedures to be followed are sometimes particular to one statute or type of proceeding, but in most private law proceedings it is the general model of procedural law which governs. The general model of procedural law arises from a combination of sources of law – statute, regulation, equity, and the common law. Our study of the rules of civil procedure will be in relation to Ontario’s main trial court, the Superior Court of Justice, and the rules which govern civil proceedings in that court. Please note that the model of procedural law is quite extensive, and we will not attempt anything like a comprehensive treatment. By the end of the course you should know how to bring a simple matter to conclusion from the time the client steps in the door until the final appeal is determined.

In addition to substantive doctrine, we will also consider how to practice law in this area competently. There are four reasons for inquiring into such matters. First, effective representation is essential to ensure access to justice. Successful litigation practice requires an understanding of the substantive law at issue, procedures for bringing the matter into court, the law of evidence, techniques of advocacy, common sense, and all the intangible skills that are required to play a very elaborate and expensive game (at someone else’s expense). Second, some of the doctrines that are part of procedural law have significance even for those in a solicitor’s or transactional practice (for example, legal professional privilege and the law of limitations). Third, there is self-interest. The 2023 Annual Report of the Lawyers’ Professional Indemnity Company (LAWPRO) indicates that litigation retainers produce the second most common area for claims against lawyers for professional negligence. Many of these claims can be avoided through proper management of litigation files and a recognition that some issues require active management. Last, putting our studies in a practical context will assist you in dealing with the admission exams that you must pass in ordered to become licensed by the Law Society of Ontario.

Classes: Tuesdays & Thursdays, 11:30 a.m. – 1:00 p.m. (Dunning 11)

What materials are required for this course?

Primary Materials: there is no casebook to purchase. On the final examination, I will assume that you have access to the materials assigned whether in digital form or in hardcopy (the choice is yours). The following statutes and regulations will be referred to commonly as we make our way through the materials:

The Courts of Justice Act

Rules of Civil Procedure

The Limitations Act 2002

Secondary Materials: if you wish, you may purchase a textbook for reference, but you are not required to do so. The best of the lot for our purposes is Morden & Perell, The Law of Civil Procedure in Ontario, 5^th Edition ($145 to purchase the student edition; online for free via Lexis Advance Quicklaw). There is also an online reference work available through CanLII, Civil Procedure and Practice in Ontario, 2nd Edition. There are many other reference works available to you in the library and online at no charge.

How to approach the reading?

I’m not particularly fond of the casebooks that are available (and they are very expensive) and would prefer to assign case reports. Many of the cases assigned deal exclusively with a procedural point and are short; others are trial or appeal decisions that deal with many issues, only some of which are procedural. For those longer and more involved judgments, please just stick to the relevant procedural law (and usually the underlying facts are not all that important). In the lecture notes that I will post (either shortly before or after classes), I will often set out some of the relevant passages in a given case; that said, please don’t rely on my lecture notes as a substitute for reading the assigned materials.

Will lectures be recorded?

No, but I will post lecture notes for all substantive classes.

If you become ill or experience some extenuating circumstance, please contact me and I would be pleased to meet with you to discuss the materials.

Assessment: 100% three-hour open-book final examination.

TOPICS & READING LIST – WINTER TERM 2025

Please note that we may pause our progress through the materials from time to time to discuss problems questions.

Overview. No reading.

I. INTRODUCTION

1. What options exist to resolve private disputes?

“Dispute Resolution Reference Guide” in Canada’s System of Justice (Department of Justice, 2006)

2. What are the Rules of Civil Procedure?

Rules 1.04(1), 1.04(1.1)

3. What are “proceedings” under the Rules of Civil Procedure?

Rules 14.02, 14.05

Flowcharts summarizing the processes under the Rules of Civil Procedure

4. What role do lawyers play in litigation?

Law Society of Upper Canada, Rules of Professional Conduct

Law Society of Ontario v. McCallum, 2024 ONLSTH 29 (OLSTHD)

II. WHO PAYS FOR THE LITIGATION?

1. Fees and Assessments

Assessments

LSO, “Complaints about legal fees”

2. “The Costs Rules”

Courts of Justice Act, Section 131

Rules 49 , 57.01

Law Society of Ontario Sample Long Form Litigation Cost Estimate (for explaining anticipated litigation fees to clients in a given matter)

Sample Costs Submissions & Bill of Costs

Barl o w v Citadel General Assurance C o ., 2008 CanLII 3215 (Ont. S.C.J.)

Davies v . Claringt o n (Municipality ), 2009 ONCA 722 (Ont. C.A.)

How to predict costs

3. Champerty, Maintenance, and Some Associated Issues

McIntyre Estate v. Ontario (Attorney General), 2002 CanLII 45046 (Ont. S.C.J.)

Pettey v. Avis Car Inc., 1993 CanLII 939 (Ont. Gen. Div.)

III. PARTICIPATION IN THE LITIGATION: PARTIES, STANDING, AND INTERVENORS

1. Participation as of Right: Standing

Carroll v. Toronto-Dominion Bank, 2021 ONCA 38 at paras. 30-43 (Ont. C.A.)

2. Participation by a Party under a “Disability”

Rules of Professional Conduct, Rule 3.2-9

Rules 1.03(1) (“disability”) and 7

Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38 (S.C.C.)

Lochner v Callanan, 2016 ONSC 1705 (Ont. S.C.J.)

3. Participation with Leave of the Court: Intervenors

Rule 13

Halpern v . T o r o nt o (City ) Clerk , 2000 CanLII 29029 (Ont. Div. Ct.)

Gligorevic v. McMaster, 2010 ONSC 3842 (Ont. S.C.J.)

IV. LIMITATIONS: TIME LIMITS ON COMMENCING PROCEEDINGS

Limitations Act, 2002, S.O. 2002, c. 24

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

McConnell v. Huxtable, 2014 ONCA 86 (Ont. C.A.)

Collins v. Cortez, 2014 ONCA 685 (Ont. C.A.)

Brown v. Baum, 2016 ONCA 325 (Ont. C.A.)

Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44 (Ont. C.A.)

In your reading, pay attention to how a limitation period runs, how some grounds for recovery are not subject of any limitations, and identify the doctrines of discoverability and fraudulent concealment.

V. JURISDICTION

Background / reference reading (not required): Angela Swan, “Freedom from the Conflict of Laws Is in Your Grasp” (2020), 51 Advoc. Q. 21

CJA, Section 11(2)

Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (S.C.C.)

Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 (S.C.C.)

Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862 (Ont. C.A.)

Kalra v. Bhatia, 2024 ONSC 3565 (S.C.J.)

VI. PREVENTING RELITIGATION OF ISSUES AND CAUSES: RES JUDICATA

Background / reference reading (not required): Paul M. Perell, “Res Judicata and Abuse of Process” (2001), 24 Advocates’ Quarterly 189.

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Danyluk v . Ainsw o rth Techn o l o gies Inc ., 2001 SCC 44 (S.C.C.)

T o r o nt o (City ) v . C .U .P .E ., Local 79, 2003 SCC 63 (S.C.C.)