Legal Process Farrow 2008

8/2/2019 Legal Process Farrow 2008

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LEGAL PROCESS

INTRODUCTION

Distinction b/w process & substance does not work as well in cases of- Access of justice- Nonsuit- Conflict of laws- Limitation periods

CompareRules of Professional Conduct:

R. 4.01(1) (commentary) The lawyer has a duty to the client to raise fearlessly every issue,advance every argument, and ask every question, however distasteful, which the lawyer thinks

will help the clients case and to endeavour to obtain for the client the benefit of every remedyand defence authorized by law

R. 4.01(2) (b) (supp.)When acting as an advocate, a lawyer shall not knowingly assist or permitthe client to do anything that the lawyer considers to be dishonest or dishonourable (duty tocourt)

Purpose of Civil Justice System

- Behaviour modification (ADR)- Conflict resolution- Lawyers business

- Truth/justice seeking- Maintaining/creating relationships

Basic Steps in Civil Process (see Claim Flowchart, chart at casebook pp. 102-103)1. Preliminary Issues timing (limitation periods), parties (multi?), costs2. Pleadings Purpose (form skeleton of the case, framing of dispute, andcommunication with the other side), include (statement of claim, statement of defence etc.)3. Process Management and DR includes (case management R. 21, 27; ADR)4. Discovery formal evidence gather process, types (written and oral discovery),purpose (evidence gathering, theory testing)5. Trial and Appeals adversarial, conclusion of process

Basic constitutional structure of DR process

1. Const. Act, 1867, s. 92(14) each province makes its own rules of civil procedure2. Courts of Justice Act(&Regs) dictates procedure in ON3. Const. Act, 1867, s. 101 Fed gov can create fed crts


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4. Const. Act, 1867, s. 96 Fed gov appoints fed judges and all superior crt judges acrossprovinces (ensure uniformity, ensures that no regional interest dominates), inferior crt judgesappointed locally.

Basic levels of Canadian courts (see Court Diagram)

Const. Act, 1867, ss. 92(14) & 101 (casebook, p. 24)

Ontario system

Const. Act, 1867, ss. 92(14) & 101 (casebook, p. 24)Courts of Justice Act, 1990

Crt of ON 2 branches: Superior Crt of Justice (Fed judges) & ON Crt of Justice (Prov judges)Superior Crt of J

Formal Division:- Family Crt (in some jurisdictions)- Divisional Crt (internal crt of appeal, doesnt exist in all jurisdictions)

- Small CC- Masters DR officers appointed by prov make final/intermediate decisions, dealw/ motions mostly- Deals with crim matters as well

Informal Division:- Commercial List in TO corporate cases decided by judges w/ expertise incommercial matters

Crt of Appeal ON appeals as of right and as of leave

Const. Act, 1867, s. 101 provides for SCC

Federal courts

Const. Act, 1867, ss. 91 & 92 fed jurisdiction- Deal with IP matters as well- Trial Div, Appeal Div, Tax Crt, Military Crt

Administrative tribunals

- Deals with admin law- Appeals from Fed tribunals go to Fed Crt- Appeals from Prov tribunals go to Crt of ON

ADR separate, now in crt process b/c ofmandatory mediation

How would you advise your client?

- Does the law offer a remedy, which area of law (Ks, Torts etc.)- Legal Issues

Parties (P, D, multiple or single, possible consolidation of claims)

Where to bring the case? (which jurisdiction, which crt)

How is the case going to be framed? (pleadings, evidence docs and witnesses)


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Costs

Limitation periods

Advice re remedies- Non-legal Issues what the client wants from the case, ADR?

What factors do you need to consider for potential litigation?

Limitations, Choice of Process,Res Judicata

Limitation Periods

Limitations Act, ss. 3-7, 10-11, 14-16, 19-22Role tells us that theres a time limit in which to bring an actionPolicy

- Fairness for D (evidentiary concerns fading memories, maliciousprosecution)- Certainty (closure for parties, admin of justice)

- Economic efficiency (parties can arrange affairs, public money)- Landscape familiar to parties

Limitations Act(see Lim Act)- S. 4 basic lim period (2yrs) ?s of what is a claim, when do you become aware of cause

of action, continuous or single act- S. 5 discovery conjunctive and reasonableness test- Exceptions s. 6 (minors), s. 7 (incapable persons established by evidence), s. 10 (assault

and sexual assault)- S. 14 puts other side on notice so that you can avail lim period may use notice of claim

rather than starting litigation, b/c injuries may manifest later (personal injury cases) D

may use this to bring motion to strike claim- S. 15 final deadline for all claims (excluding exceptions) 15yrs- S. 16 certain claims exempts- S. 11 if ADR used 2yr period put on pause if it falls thru, clock restarts- S. 22 cant K out of Act- S. 21 cant add parties to existing case simply to extend lim period

Exception fors. 15 allows claim if someone did it willfully

Choice of Process

How to start a case in ON?

Rules of Civil Procedure- What process? R. 14 originating process (Defns)- R. 14.02 every proceeding is an action unless stated otherwise in act start w/statement of claim used for contested facts- R. 14.03 (3) if using notice of claim (which stops running of lim period) have 30days to file statement of claim- R. 14.05 exception to 14.02 application no contested facts- R. 14.08 statement of claim served w/n 6mo after it is issued (limitation period)


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2 other processes:- R. 76 simplified proceedings for cases w/n $50K (?s is it real justice, does itghetto-ize small cases)- Courts of Justice Actss. 22-23 small claims if less than $10K

Advising client- Lim periods- What process to use action v application

Case against trustee by beneficiary re will proceed by application

Constitutional challenge proceed by action

Res Judicata

- thing or matter settled by judgment (Blacks Law Dictionary)- Cant bring same action twice

- Threshold have you sued the person on these facts before?- Form of estoppel equitable principle

Cause of action estoppel cant bring the whole cause of action

Issue estoppel cant bring issue in case already decided- Danyluk: best foot forward / only entitled to one bite at the cherry provides closure

to parties- difference b/w res judicata and stare decisis (abide by decided cases -Blacks Law

Dictionary)

Capacity & Standing; Parties & Joinder

Capacity

- who can litigate/ be a party to the proceeding?- most individuals have capacity adults, legal persons (partnerships & sole proprietorships

r. 8, and corporations)- certain individuals dont have capacity parties under disability (r. 7) disability includes

minors, mental incompetents, absentees (r. 1.03 (1)) all require litigation guardian (r. 7)

Standing

- person should have sufficiently close connection to harm to bring claim (does the personhave a right or remedy in law)

- 2 typesPrivate interest standing direct interest in proceedingPublic interest standing

Canadian Counsel of Churches

Refugees affected byImmigration Act counsel brought charter litigation ontheir behalf b/c couldnt represent themselves

AG brought motion (r. 21 determination of issue before trial) to strike claimon basis of lack of standing


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Example of gatekeeper function (access to justice)

Factors considered competing interests, scarce judicial resources (efficiency),avoid busybodies getting involved, avoid insulation of gov action, existence ofprivate actors capable of challenging litigation

3 step test serious issue raised as to invalidity of legislation, genuine interest,

better (reasonable & effective) way to resolve issue Case fell thru at last stage

- Public interest standing v Intervenor status

Intervenor has interest in outcome & unique expertise (enlighten crt on publicinterest consequences)

2 types (r.13)Party (r. 13.01) on motion test (r. 13.01(1)a-c) interest in subject matter ofproceeding, will be adversely affected, ? of law/fact in common w/ one of theparties, negative affects of delay and prejudice due to intervention (r. 13.01 (2))Non-party (r. 13.02) friend of court helps by way of argument 2 sub-types

On motion traditional intervenor eg. Canadian Civil Liberties Association

Thru invitation of judge amicus curiae

Parties

- R. 14.06 parties named in title of proceedings

Joinder (compare class actions)- R. 5 getting together all the ppl involved in case- Court of Justice Acts. 138 avoids multiple claims, efficiency, cost effectiveness- Crt has broad power- 2 types

Joinder of Claims (r. 5.01)

Party asserts more than one cause of action in pleading Stevens (BC) K and bad faith claims in one pleading crt said claims shouldnt

be joined (but in ON would have been joined)Joinder of Parties (r. 5.02)

1/more P can sue 1/more D in same proceeding (have to be represented by samelawyer

Sayle- trailer forced into ditch by negligent driving- proceeding against driver, owner of car, tow owner who negligently towedit out of ditch- application by tow owner to force P to elect one D

- crt allowed P to proceed against all 3

Pryshlack

- P vendor sued D purchaser (for failure to complete transaction) and Pslawyer (for breach of K/negligence)- Motion by Ps lawyer for order striking out pleading or staying action ongrounds that pleadings disclose no cause of action- Crt dismissed action against Ps lawyer w/o prejudice to bringing it againb/c need some common factual or legal ground to join


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- R. 5.03 all the ppl needed to enable proper adjudication of the case should be joined asparties

Pleadings: Purpose, Form, Content, Adequacy, Variance, etc.

Pleadings

- R. 25 collection of allegations & positions of parties- Imp b/c putting best foot fwd- R. 25.01 docs in pleading statement of claim, statement of defence, reply, counterclaim,

crossclaim, 3rd party claim- Purpose of pleadings

Define issues b/w parties, frames playing field

Notice

Record wrt lim periods, res judicata etc

Defines strategy Persuade judge/other party (to settle)

- Form of pleadings (r. 25.02)

Separate paras

(R. 14.06 title of proceedings, parties), crt record no., lawyer,language

- Statement of Claim Contents (Form 14A)

R. 14.08 delivery w/n 6mo of issuance

R. 14.06 identify parties

Nature of claim

R. 25.06 (1) have only material facts R. 25.06 (2) do not plead law

R. 25.06 (9) state relief sought (Whiten)

R. 25.06 (3) condition precedent need not be plead

R. 25.06 (4) inconsistent pleadings allowed whenpleading in alternative

- Statement of Defence Contents

R. 18.01 delivery w/n 20 days of getting statement of claim if in ON, 40days for CAN or US, 60 days elsewhere

Require material facts

4 elements:

Admissions (R. 27.07 (1)) admit things that you agree w/ - otherwise will getstung w/ costsDenials (R. 27.07 (2))No knowledge of certain factsAffirmative defence (R. 27.07 (4)) launch your side of the case

- Reply

R. 25.08 reply if proving diff version of case from D if not covered in SoClaim

R. 25.09 if reply given deemed to admit all points not refuted


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- Service (r. 25.03) who is served & personal service (and exceptions)- Timing for delivery (r. 25.04) refers back to rules about when SoClaimand SoDefence needs to be delivered- Closing pleadings (r. 25.05) when all pleadings are in

Pleading Issues- If pleadings not clear 3 options

Let them hang themselves at trialWhiten SCC case about burnt house insurance co. makes arson case P didnthave material facts relating to punitive damages crt might have kicked out case orallowed for amendments if insurance co. would have raised it earlier, but not fair atthis stage

Motion for Particulars (r. 25.10)Copland motion by P to dismiss case and in alternative gain details of case notenough details from D therefore unable to respond allowed to get particulars

R. 21 motion for dismissal b/c no cause of action disclosed

Adequacy

- Requirement pleadings must disclose cause of action- Notice aspect of pleadings parties are limited at trial to whattheyve pleaded (subject to amendment power (r. 26)MacDonald- Options if pleadings are inadequate:

Demand notice for particulars (r.25.10)

Amendment

Motion to strike pleading (r. 25.11)R. 21 determination of issues before trial

Amendment

- R. 26.01 general power of crt toamend subject to ?s of prejudice that could not be compensated by costsMacDonald

P building contractor suing lawyer for negligence b/c didntfile insurance claim w/n lim period client precluded from lawsuit

Lawyer says P wouldnt have won anyway

Crt says purpose of pleading is to outline issues, evidencerequired

Imp for pleadings to contain all material facts so that other

party not taken by surprise need details

D lawyer cannot use this defence w/o amendment

Amendment is w/n crts discretionary power only use it dojustice b/w parties and should not prejudice Ps case

Amendment allowed on terms P allowed right of reply andcosts against D


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- R. 26.02 can amend w/o leave if pleadings not closed, w/ consent of all parties, w/ leave of court- R. 26.06 Amendment at trial- May not be allowed to add someoneafter expiration of lim period ? of incompensable prejudice (Limitations Acts. 21)

Motion to Strike Pleading

- r. 21.01 (1) (b) party can bring a motion to strike pleading- r. 25.11 crt may strike out if it prejudices/delays trial, is frivolous,is an abuse of process- Copland

R. 25.06 (1) requires a levelof material facts if this level not reached, remedy is not motion for particulars butmotion to strike out pleadings

- Dawson

Motion to strike test for r. 21, distinguishes b/w r. 20 & 21

- Jane Doe Sexual assault victim brought claim against police for failing to prevent her rape

Novel cause of action

D wanted to dismiss it b/c disclosed no cause of action

Crt didnt allow dismissal

Counterclaims, Third-party claims, Cross-claims, Consolidation

r. 5.02 Joinder of parties

? of Efficiency- Courts of Justice Acts. 138 avoiding multiplicity of proceedings- R. 1.04(1) rules construed to secure justice, expediency, cost-effectiveness- Limitations Acts. 21 not allowed to add someone just to extendlim period- Compare class actions

See Muli-party Diagram

Counterclaims (r. 27)

- D becomes P by counterclaim & P becomes D by counterclaim- R. 27.01 - D brings claim against P, D may join any other person who may be party to

counterclaim- R. 27.02 included in the statement of defence- Lid Brokerage

P sues Ds for for damages

D applies for leave to bring counterclaim against P and 7 other ppl who are notparties


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No leave to counterclaim is required, but b/c lim period passed need leave(Limitations Acts. 21)

Requirement to allow counterclaim doesnt have to be directly related to case, butsomewhat related so main counterclaim can be made out

- Teledata

Counterclaim is not meant to just shoot a missile back at P or complaining againstPs claim

Third Party Claims (r. 29)- Claim against a 3rd party- R. 29.01 may be brought against any person not party to action & whosliable to D for part of Ps claim, independent claim that relates to Ps claim, who should bebound by decision in the Ps claim- P cant obtain judgment directly from 3rd party exception compulsorycounterclaim- Policy

Daniel P Ks with D to buy widgets & w/ 3 rd party to install widgets widget blows up P

sues D D sues 3rd party P moves to strike out 3rd party claim trial judge allowsit

Appeal judge says 3rd party claim imp here b/c P elected not to sue 3rd party whomight have reasonably been responsible for some damage

Carswell

Ps property flooded b/c of blasting ops in adjacent property sues insurance co. insurance co. brings 3rd party claim against city

Crt allowed adding 3rd party b/c same claim b/w all 3, D has right to discoveryagainst city w/h would not occur but for 3rd party claim, and insurance co. can only

get $ from city if D loses to P.Hannah

P damages due to blasting ops in adjacent property sues insurance co.

D brings pre-trial motion to adjourn trial and have P add blasting co. as D

Crt held that Ps right to choose D

Insurance co. could have brought in blasting co. as 3rd party but chose not to do so

Avoid multiplicity of actions

Prejudice to P if trial adjourned just 4 days before commencement (unfair and notin best interests of admin of justice)

- Negligence Act tortfeasors jointly and severally liable to P P should add

all Ds b/c otherwise if P sues D1 & D1 sues D2 (3rd party claim) and D2 loses, P getsnothing from D1.

r. 29.11 fourth party and subsequent claims 3rd party can bring claim against fourth party notalready part of 3rd party claim

Cross-claims (r. 28)- Claim among co-Ds eg. P sues D1 and D2, D1 in turn sues D2


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- Negligence Act

Consolidation (r. 6)- Crt has power to consolidate cases if they could have been joined but werent- R. 6.01 even if not appropriate to consolidate crt can order that cases tried together or

consecutively

CLASS PROCEEDINGS

See Class Proceeding Diagram

Purpose of Class Proceedings

- Access to justice- Judicial economy- Behaviour modification

Western Canadian Shopping Centres Class actions better than multiplicity of individual suits b/c of the 3 reasons above

Hollick

Is there an identifiable class, whether claims raise common issues, to what extentshould class rep be allowed to adduce evidence in support of certification

Bottom line would class action be the preferable means of resolution (judicialeconomy, access to justice, behaviour modification)

Joinder of Parties v Class Actions

- No max no. of parties in either - Which to proceed under? see which of the options promotes the 3 principles

in class action doesnt then proceed under joinder

Class Proceedings

- Allows for efficient running of claim that would otherwise take up too many resources- Class Proceedings Actshould be construed generously Hollick- WCSC,HollickandRumley are the cornerstones of Canadian class actions jurisprudence- Limitation periods

Limitations Acts. 20 does not affect lim periods in any other act

Class Proceedings Act s. 28 lim period paused by commencement of classproceeding and resumes again when (member opts out, excluded, decertification,class proceeding dismissed w/o adjudication, class proceeding abandoned or

discontinued, class proceeding is settled w/ crt approval)- Parties & class members

Class members are not parties

Diff b/w multiparty lawsuits and class actions is that in multipartycases all the people are parties, in class actions only rep P is a party saves cost forother people who may not be able to afford it, access to justice, avoid multipleproceedings of same issue


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S. 2 1/more members of class can begin proceeding on behalf ofclass by bringing motion

S. 14 to ensure fair and adequate representation crt may allow1/more members to participate participation can be on any terms including costsas crt sees fit

S. 15 (2) can bring motion to discover more than 1 class members S. 5 (1) (b) needs to be a representative class or 2/more persons

S. 2 (2) person who starts the class action makes a motion tocertify action as class action and himself as rep P (jurisdictional issues can arise ifseveral ppl doing same thing in diff regions)

S. 5 (2) if crt fees that there is need to protect interests of a sub-class, will appoint rep P for sub-class who (fairly and adequately represent sub-class, has plan for advancing sub-class interests and informing members, has notconflict of interest)

S. 3 of CPA & r. 12.05 (2) of RCP D to 2/more proceedings at anystage can move to have them made into class action and appointing representative P

S. 4 of CPA & r. 12.07 of RCP any party to proceedings against2/more D may bring motion to certify proceedings as class action and appointingrep D

R. 12.07 & 12.08 (unincorporated association or trade union) special rep proceedings

R. 12.02 title of proceedings (Proceedings under CPA)

R. 12 remainder rule imp b/c links CPA to RCP, shows whatpleadings should look like, keeps alive rep actions that may not fit under CPA

- Certification Process

Most cases fought at this stage b/c claims in class action notusually viable on their own Ds strategy to prevent certification

s. 5 (5) Certification not a ruling on the merits of the case(Hollick certification stage decidedly not a test of the merits of the action ratherfocuses on form of action - ? Is not whether the claim likely to succeed but whethersuit is appropriately prosecuted as class action) - in reality it is used by Ps to exact asettlement (often determines if any claim at all will actually proceed)

s. 2 (2) Motion to certify class proceeding and appoint repP (Hollick upon motion for certification rep P and D may file affidavits settingout material facts on w/h they intend to rely)

s. 2 (3) motion to certify made after defence has/shouldhave been delivered, or w/ leave of crt

5 (1) (a) - (e) Test of certification of proceedings pleadings disclose a cause of action, identifiable class, raise common issues, classaction would be preferable mode of resolution, there is rep P/D who would (fairlyand adequately represent interests of class, has a workable method of advancingproceedings on behalf of class & notifying class, not in conflict of I with members) tips balance in favour of class actions

Identifiable class objective to ensure that there issuch a class if not would be difficult to bring action fwd


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Common issues not have to have same claim justcommon enough to make sense that it proceeds thru class action (Hollick)

Class action preferable determined by reference to(judicial economy, access to justice, behaviour modifications)

Usually class proceedings fall apart at certification or

discovery s. 8 of CPA & r. 12.05 (2) of RCP Contentsof certification order (describe class, state names of rep parties, state nature ofclaims/defences, state relief sought, common issues, manner of opting out anddeadline for this)

ss. 17 22 Notice of certification

s. 7 If motion fails, can proceed as multi-party action

- Appeals of certification motions

s. 30 (1) of CPA & r. 12.06 ofRCP appeal from refusal to certify/de-certification order goes to Div Crt

s. 30 (2) appeal fromcertifying order Div Crt w/ leave from Superior CoJ

- Hollick

Keele Valley Landfill pvtly owned city of TO bought it allowed allresidential/commercial waste (non-hazardous) Ministry of Environment approvedit & provided small claims fund for redress city also operated complaint line

Hollick complained brought together ppl in area for class action

Certification judge certified it Div Crt overturned it CofA rejectedappeal

Discloses cause of action low threshold in order to fail at this stagemust be no cause of action

Identifiable class easy to establish area and time of cause of incident(Hollick established ppl w/n certain area b/w certain times effected)

Common issue have to frame issues so common enough to establishliability for all parties can use sub-classes to address particular issues relating tospecific individuals in this case established that pollution causing harm toresidents

Class action preferable better than multi-party claim for resolvingcommon issues area where crt can exercise discretion Crt established 3 parttest (this is where Hollick failed):

Judicial Economy look at common issue in light of whole case

how will it advance claims of all ppl involved (difficult to determine extentto w/h ppl suffered damage), difficult to say resolutn of common issue willestablish damages b/c damages vary b/w parties crt viewed issue ofdamages as more imp than liability despite that liability bigger part of case

Access to justice crt took fact-specific approach to this crtdidnt see that access to justice furthered b/c no one had made claimsagainst the small claims fund or help line these mechanism had alreadybeen put in place by gov for ppl of the community


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Behaviour modification other avenues present ie help line, smallclaims fund

Rep P crt didnt go into this

Despite concluding that Act should be read generously, crtfailed to do so

- Should we try to restrict use of class actions?(compare US)- Opting out

After certification, anyone who fitsdescription deemed to be in (even if they dont know about it) makes sense interms of policy b/c hard to have large no. of ppl opt in

ss. 9, 17(6)(b), 27(2) any class member canopt out once opted out, cant come back b/c of res judicata once lim period isover need reasons to get out

28(1)(a) 2 yr lim period on a cause ofaction is paused once class action stats but resumes if member opts out (is it fair if

you opt out by beginning separate lawsuit but later find out about class action andwant to be part of it)

- Conduct of Proceedings

Crt has lot of discretion here(e.g. ss. 11-14, 23, 34-37)

s. 35 Rules apply to classactions

- Discovery

s. 15 (1) parties entitled todiscovery (like other cases)

s. 15 (2) class members canbe discovered w/ leave

s. 15 (3) factors crt looks atto grant leave

All other discovery rulesapply

R. 12.03 RCP somediscovery rules dont apply

- Judgments and Distributions

ss. 24-27, R. 12.05 crt canmake various orders

settlement usually distributedon % basis or lottery- Discontinuance, Abandonment,Settlement (s. 29)

Settlement in class actionsneed crt approval b/c binding many ppl not part of action to decision

Most class actions settle


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Hollicksettled before theyproceeded thru certification motion crt has discretion to do this

Gariepy v. Shell Oil

Crt talked abtexamining settlement & certifying class action issues of protecting class

members b/c potential of conflict of I b/w class & counsel collusion w/ Dpossible when contingency fees involved

Talked abt proposedclass & sub-class shows how classes get framed

Proposedagreement/settlement

List of factors on howto determine what is fair & reasonable for settlement (likelihood ofrecovery, amt/nature of discovery evidence, settlement terms & conditions,experience of counsel, future expense & duration of litigation,recommendatn of neutral parties, no. of objectors & nature of objections,

presence of good faith & absence of collusion) Crt persuaded bySparlingcase crt in favour of settlement

Should crt look at bestinterests of class or protect public interest generally public interest involved b/cnot a regular A v B case, behaviour modification on other hand floodgates mightopen, public v D looks like crim case

- Appeals

Diff appeal routes for classactions if D s. 30, r. 12.06 significant

s. 30(3)-(11), R. 12.06 Tocourt of appeal / divisional court; with / without leave

- Cost/fees

Parties on the line for costsand fees are rep P and D like any other case

Exceptions if public interesttest case (s. 31) P not responsible for costs OR if P gets disbursements from fund(fund can cover costs & fees)

Having rep P liablediscourages class actions

B/c of judicial efficiency

run by contingency fee (lawyers would not take case otherwise) s. 32 (2) Counsel fees needto be approved by crt (b/c need to be fair to class as whole)

Service, Challenging Jurisdiction and Forum

Service


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- Personal service is the norm- Substituted service can happen- Time for service & extensions- Policy balance need for adequatenotice w/ ability to ctrl evasive Ds if adequate notice even though improper service it

will not be defeated- Rupertsland

Doc served to solicitor (wife ofsole director) of Rupersland although not authorized to do so she accepted serviceand gave to husband

Crt said if they got notice substance trumps over form crt found there was notice

For personal service to beeffected process need not be delivered directly to intended recipient as long asparty actually does receive process into possession

- Service of docs in ON

Basic ? is the doc an originating process (eg. statement of claim) x-claim is notoriginating

If yes - then personal service is required (R. 16.01(1), 16.02), or alternativeto personal service (R. 16.03)

If no, then servicebut not personal serviceis required (R. 16.01(3)-(4))

Where it appears to court that service is impractical, then substitute service /dispensing with service may be ordered (R. 16.04)

Process servers used by big firms they serve and sign affidavit that theydid it

Jurisdiction

- Authority of a crt to hear and resolve case- 3 considerations geography (r. 17 territorial limits), subjectmatter, amt- Subject matter jurisdiction

Does the crt have subject matter jurisdiction over the case?

Some matters can only be brought in certain crts

s. 11 (2) CJA superior crt of justices powers

s. 92 of Constitution Act each province makes its ownrules re property, civil rights, pvt law

- 80 Wellesley

Agreement to sell property agreement assigned prior tosale sale falls through agreement registered against property should deposit berefunded

Judge found he didnt have jurisdiction to require Ds to lookfor alt security for satisfaction of their claim

Superior crt has general jurisdiction w/h is unlimited &unrestricted in substantive law in civil matters

- Territorial jurisdiction


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Can we serve ppl/parties outside ON

Threshold ? does claim fall under r.17.02

r. 17.02 party to proceeding may beserved w/o crt order outside ont w/ originating process (or notice of

reference) in certain claims r. 17.03 service w/ leave of crt

In any event (rr. 17.02 or 17.03) crtmust have real and substantial connection (jurisdiction)

Morguard(SCC)

SCC held that principles of order and fairness required limits on reach ofprovincial jurisdiction on Ds in another prov

Test should be real and substantial connection b/w out of prov Ds and inprov action

Hunt(SCC)

SCC made it clear that Morguard principles are constitutional imperativeapplying to prov legislatures

Muscutt(ONCA)

P injured in Alberta moved back home to ON so mom could take care commenced action in ON

Judge found real and substantial connection, found ON as convenient forum

r. 17.02 (h) allows for service out of jurisdiction for claim where damagesustained in ON arising from tort committed elsewhere

Crt found that fairness requires a flexible test P in ON only b/c of injuries+ D was backed by insurers

3 ways in which jurisdiction can be asserted against out of prov D

presence-based jurisdiction, consent-based jurisdiction, assumedjurisdiction

Crt found that in applying real and substantial connection test shouldconsider following factors (connection b/w forum and Ps claim, connectionb/w forum and D, unfairness to D, unfairness to P, involvement of otherparties, crts willingness to recognize and enforce extra-provincialjudgment, whether case is interprov or international, comity and stds ofjurisdiction prevailing elsewhere)

Policy - balance regulation offoreign behaviour with impact of globalization on domestic courts, etc.

r. 17.04 additional

requirements for service outside ON If served w/o leave ofcrt disclose facts and refer to sections of r. 17.02 relied in support ofservice

If w/ leave of crt serve originating process w/ order of crt granting leave

r. 17.5 manner of serviceoutside ON


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- Challenging Jurisdiction

r. 17.06 (1) (a) motion to set aside service outside ON (service exjuris)

s. 106 CJA- crt has power to stay proceedings on such terms asconsidered just

r. 17.06 (1) (b) motion to stay proceedings permanent pause button can never bring it back

s. 17.06 (2) (a) service outside ON not authorized technical breach

s. 17.06 (2) (b) asking that order granting leave to serve outsideshould be set aside

s. 17.06 (2) (c) forum non conveniens ON not a convenient forum

s. 21.01 (3) (a) D can move to have action stayed or dismissed b/c crthas no jurisdiction over subject matter

Process Management, Early Dispute Resolution and Settlement

Case Management

- Includes case mgmt, conference, settlement- Shifts from adversarial system to managed system efficient- Sets time limits- r. 77 regime for parties & system to make use of case mgmt usually refers to casesstarted in TO, Ottawa, Windsor but reflect crts mindset

Permissive and flexible

3 main events case conference, settlement conference, trial mgmtconference

Case and trial mgmt conferences permissive, settlement conference mandatory

- Case Conference to make sure parties comply w/ timelines and orders of regime- Settlement Conference

Forces parties to get together after discovery

Purpose limiting issues, opportunity to settle

Diff from pre-discovery mandatory settlement- Trial Mgmt conference focused on mgmt of trial- r. 78 took TO cases out of r. 77 & subject to practice direction

same as r. 77 but less restrictive/detailed

can be sent back to r. 77 in some exceptions (eg. if parties agree, if 1party is screwing)

Pretrial conference (r. 50)

- Part of case mgmt regime even though not under rr. 77 & 78- Before trial parties meet in front of judge and show that theyre ready to go

ADR

- any settlement of dispute b4 it goes to trial


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- DR continuum (Negotiation -> Mediation -> Adjudication [crt, arbitration]) increasingctrl from left to right

- r. 24.1 mandatory mediation everyone has to go to it

requires confidentiality

r. 77 version of r. 24.1 happens early

r. 78 version of r. 24.1 happens later

Privilege

- not same as confidentiality- Info that cant be compelled in crt ie any convo in settlement arepriviledged

Confidentiality in Settlement

- Will come again under discovery and privilege- Purpose

Process designed to facilitate frank discussion and disclosure with a view to

settlement: requires candour Pursue interests, not aggravate positions, etc.

Exchange of information may not be same as exchange of evidence at trial

For mediator to appear neutral, parties must have confidence in confidentiality- Scope of confidentiality

In private ADR, can contract for confidentiality

r. 24.1.14 protection same as in without prejudice communications

r. 50.03 no disclosure to crt of any statement made at pre-trial conference

Settlement privilege (without prejudice communications) and also in context ofdiscovery

- Privilege surrounds settlement offers, discussions, etc.- Gruenke

All relevant and probative evidence admissible unless excluding it serves somejudicial or public policy that outweighs strong public policy of admissibility

On this basis, a limited range of confidential communication is treated as privilegedand inadmissible exceptions settlement privilege, litigation priv, solicitor/clientpriv

- Sopinka et al

If not codified (as in r. 24.1.14) need 3 requirements

Litigious dispute in existence or within contemplation

Communication made with express or implied intention that it

would not be disclosed in event of breakdown of negotiation Purpose must be to effect settlement

Settlement Regime (r. 49)- Almost all cases settle before trial- Settlement encouraged in civil justice system

r. 2.02 RPC codes of conduct recommend it

encouraged by parties trends in ADR


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encouraged by crts

encouraged by statutes/rules (s. 138 CJA, rr. 1.04, 24.1, 77.14, 78.10, 49)- Process

Can always settle but settlements under R. 49 create costs consequences

r. 49.03 Offer must be made at least 7 days before trial to take benefit of costs

consequences r. 49.05 Assumed to be without prejudice

r. 49.10 cost consequences

Parties can be exposed to increased liability for costs if they refuse to takepart in pre-trial settlement & to seriously consider a reasonable offer

o Reasonability is inferred by fact that offer is equal or better than

what party gets thru trial process- Discretion of crt

Despite time constraints Crt can take into account any offer to settle made inwriting, date of offer and terms of offer

Niagara

K dispute P made offer to settle D turned it down trial judge usedher discretion not to penalize D overturned on appeal

Offer was close to judgment and 2 mo b/w time of offer and time of trial

Rules strict that crt has to use cost rule unless special circumstances

We costs awarded get partial indemnity costs (party-party costs) 50% ofactual costs

Get full costs for solicitor costs

DISCOVERY and PRIVILEGE

Discovery

- Done diff in diff jurisdictions- r. 1.03 (1) Defn- Purpose Gathering evidence for trial, define issues,providing notice to other side (fairness), settlement, pinning down witnesses, understandingstrength of opposing sides case- 2 parts documentary discovery (r. 30) & oral discovery (r.31)- r. 34 out of crt examination for discovery

Documentary Discovery (r. 30)- r. 30.02 every doc relating to any matter at issue- Grossman broad disclosure should encourage disclosure not frustrate it- Kiewit

Many docs produced, therefore werent stonewalling as in Grossman

Crt said discovery not fishing expedition

Right to reasonable preparation- What counts as a doc is defined broadly (eg. hardware, e-mails)


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- No discovery for applications, just actions- Only parties involved in discovery- Anything you have ctrl over can be discovered- Rule says disclose not produce party does not have to look at it- Cant use anything at trial that hasnt been disclosed

- Reasons not to disclose a doc b/c case may settle anyway- Form

Affidavit of Doc (sworn statement of fact)

3 schedules A, B, C

A docs to be produced

B docs to be disclosed not produced

C docs not in partys possession/ctrl/pwr- Wuraman

Solid waste mgmt case

Creative way of dealing w/ docs

Dont have to give so much detail as to give away privilege

- Grossman

System in the hands of lawyer ethics plays big role- Non-parties

r. 30.02 power of party

witness not obliged to disclose (but can be subpoenaed by rules ofevidence)

r. 30.10 if non-party connected to party can be asked to disclose bybringing motion (eg. VISA w/h has records of transactions)

rule narrower and less onerous than for parties test involved

test doc is relevant to material issues in action, unfair to moving

party to go to trial w/o it Woods says its narrower

Stavros gives list of factors

Irwin toy

o ISP provider wasnt willing to give confidential info on ppl

using serviceso Unfair for moving party to proceed w/o it

o Balance b/w privacy & rights of parties

- Continuing Discovery (r. 30.07)

If something changes after discovery having obligation to bring itup

Ongoing affair Burke

evidence of changed physical condition since injury

didnt fulfill cont. discovery obligation so was stuck w/ originaldiscovery evidence

couldnt lead new evidence at trial- Deemed Undertaking: (r. 30.1)


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Undertaking to crt and person giving discovery that docs/evidencewont be used outside crt

Purpose to encourage 3rd parties to come up w/ info

Evidence gathered thru discovery limited to the piece of litigationbefore the crt

- McKenzie Childcare worker child died under care civil action against her

Discovery but settlement

Attorney G wants to used discovery for crim proceedings motions judge didntgive access BC CofA allowed discovery material to be used used crimeexception

SCC reversed b/c self-incrimination against Charter

Why be truthful in civil case if know that it would result in crim conviction- Broad remedial powers of crt (rr. 30.06, 30.08, 30.09)

Prob if fail to produce/hide/manipulate docs

Sanctions from law society (Prof Conduct)

Crt may dismiss case, sent to case mgmt, sting w/ costs

Privilege (24.1)

- A lot of confidential info not privileged- Narrowly defined- 4 categories solicitor/client, litigation, settlement, catch-all(residual category)- Solicitor client privilege

Any comm b/w solicitor & client regardless of imp to case

Exceptions protection of innocent accused, public safety & disclose crim comm.

Belongs to client not lawyer Prtichard

Includes in-house counsel & gov lawyers

Ppl should be able to have candid discussion w/ solicitor

McCarthy

Does not include corp client going to lawyer for business reasons

Only covers legal advice- Litigation privilege

Pilots Insurance Before contemplation of litigation it is not privilege

Also called solicitors brief privilege notes, ?s, case strategy allprivileged

Time limited

Notes made to self would have to be disclosed in affidavit of docs dont have to be produced

Dominant purpose of doc is key

Wheater not made for purpose of litigation therefore no lit privilege

Blank gives history of lit privilege- Solicitor/client priv & lit priv can overlap


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- Settlement privilege

Protects parties re disclosure made to settle case- Catch-all rule

Wigmore Test

Should allow ppl to not bring everything into lit

4 part test balancing of factorso Comm must originate in confidence

o Expectation of relationship to let it survive (eg. priest,

spouse)o Relationship ought to be fostered

o Balance injury to relationship b/c of disclosure v benefit

to lit eg. A & M case (psychiatric issues)- Basic idea all relevant info disclosed, all relevant non-priv info needs to be produced

- Under defamation extra privilege parliamentary privilege

Truth is defence

Oral Discovery (r. 31)

- Discovery not usually done in writing b/c want to ensure credibility of witness only done if (expensive to bring person to crt try video conference before this, persondying, rebringing person to crt)- Format

r. 34 notice of examination

ppl present are P, D, lawyers, crt reporter

3rd parties allowed

Not open to public b/c of confidentiality deemed undertaking

crt reporter takes transcript- Who can be examined (r. 31.03)

Any party to action (not application) adverse in interest

Need crts approval for discovery a second time

Cant discover co-Ps

Examine individuals, corps, partnerships, gov

Examining party in ON can select who to examine in a corp that person incorp obliged to inform themselves may examine another person if 1st person notinformed

Menses 2 Ds can be adverse in interest x-claim may be there so candiscover them

Rainbow justice requires that the CEO inform himself Who may be examined in class proceedings?

D can only examine rep P

w/ leave of crt can examine class member (s. 15 CPA)- Scope of examination

Any matter at issue


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r. 31.06 cannot object to ?s on grounds that (its for info gathering, ?is like x-examination)

Hearsay allowed in discovery b/c want to know as much info aspossible will allow to track down other relevant evidence

Forlady broad scope of discovery

Nonparties not discoverable (r. 31.03) but r. 31.10 allows crt to do itif just reason to believe person has relevant info. (excludes experts) & examiningparty has no other means to get info.

Carlton Condo balancing approach

Stavros examine person- Advisement for discovery ?s can get back to person if unsure how you want toanswer it

If client tells you not to disclose a relevant doc b/c it is evidence of his bad behaviour- Can say in your affidavit that youre considering docs & will give them later (if unsurethat they should be disclosed or not)

- Disclose it- Badger client about disclosing it- Quit- Cant question client on it on stand b/c misleading crt

Ford Pinto

For copies can put in affidavit the no. of copies dont have to produce all

Use of examination at trial (r. 31.11)

- Imp for x-examination- Uses

Read in (admissions) can read it at beginning of trial OR do read in brief

(prob judge may not read it) Impeachment

Using prior inconsistent statement try to bring it out (when doing x-examination? witness on it)

Motions, Interlocutory Relief

Motions

- Can happen at any stage but usually come up when

Issues of non-compliance of party w/ procedural rules raised

Party seeking permission from crt to take step w/h requires crts authorization

Party wishes to raise an issue before crt

Party wants interim relief- r. 37.01 can bring a motion by filing notice of motion


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- r. 37.06 3 requirements precise relief sought, grounds to be argued, doc evidence(affidavit)- r. 37.10 motion record pleading- r. 39 evidence used in a motion- r. 4.06 affidavits

- r. 39, r. 4.06 cant be a witness & lawyer in the same case- r. 37.02 can bring a motion before a judge or master (BUT masters cant hear certainmotions, so may have to go to judge) if it says crt means judge or master- Can have ex parte motions but not common- Ethical issues

Interlocutory relief (r. 40)

- s. 101 of CJA gives crt jurisdiction to give interlocutory relief- Examples of basic interim relief interlocutory injunctions, interim preservation &recovery of property, certificate of pending litigation respecting real property- RJR MacDonald

Interlocutory pending disposition of appeal Interim for a period of 1yr after disposition of appeal

Interlocutory relief hybrid term used by crt to denote both- Interlocutory injunctions

They are a form of equitable relief (fairness based, discretionary) balancingprotecting parties v prejudicing claim

2 basic types prohibitive, mandatory (force party to do something)

Can be permanent or temporary

2 types of temporary injunctions

Interlocutory looking for relief until get a main hearing

Interim just for any period of time

Crts dont like giving interlocutory injunctions b/c giving relief b4 full hearing- RJR MacDonald basic test

Tobacco co. applied for stay from compliance w/ new warning requiremtets

Adopted 3 stage test

Preliminary assessment made on merits of case to ensure that thereis a serious ? to be tried (not frivolous)

Determine if applicant would suffer irreparable harm (going out ofbusiness etc.) if application refused

Assessment must be made as to which party would suffer greaterharm from grant or refusal of remedy

2 exceptions to the general rule that judge should not engage in

extensive review of meritso When result of motion will in effect amt to final

determination of issueo When question of constitutionality present itself as ? of law

alone

In this case public interest carried the day


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- r. 40.03 moving party undertakes to abide by damages awarded by crt if it determinesgranting the order has caused damage to responding party in the motion

DISPOSITION WITHOUT TRIAL, ETC.

Disposition w/o Trial

- Includes settled cases- Council of Churches case disposition w/o trial- rr. 20, 21, 25 (11)

Substantive Disposition w/o Trial

- Motions to Strike, Stay & Dismissed

Diff from summary judgment

r. 21.01 (1) (a) determining a ? of law

Nelles SCC said even if no ? of fact there may be ? of law looks like an

application only diff is here action may have already started r. 21.01 (1) (b) strike out a pleading [ 25 (11) does the same] gives no threshold

test all you do is look at statement of claim and accepting everything in it as trueis the case made out (Dawson) dont need to look at evidence

Hunt v Kerry high burden plain and obvious that it discloses no cause of action

Strike out w/o prejudice or allow amendment if P/D is unrepresented or has badlawyer

r. 21.01 (3) (a) (d) for D action stayed

These are drastic measures crts dont like to deny someone their day in crt- When can this be done?

r. 21.01 (1) (a) before trial

r. 21.01 (1) (b) after pleading is served not after claim

r. 21.01(3) after claim but not defence- Why do this? (Nelles)

Efficiency

Cost

Time

Determination of pt of law- Done on a motion before trial- All or part of claim can be disposed off like this- Jane Doe

Novel claim

r. 21 motion by D

she successfully defended motion

novelty does not defeat cause of action- Joly

Cant prove hes martian

Frivolous & vexatious

Judge says rules are for ppl


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- R. 21.02 do it promptly- r. 21.01 (1) (a) & (b) dont use evidence only pleadings can useevidence if crt gives leave- r. 21.01 (3) can use evidence- r. 25 (1) silent on the issue of evidence wont work in front of judge

though- List both 21.01 (b) & 25 (11) in your motion- Dawson

Tax shelter structure that screwed up

Contrasts 21 & 20

Crt says give most broad reading and dismiss only in clear and obvious cases

25 (11) speaks to pleadings not actions v 21.01 speaks to actions if many Ps use 25 (11) b/ccant dismiss whole action

Options on how to dispose off action before trial

- Settle- r. 21 motion- r. 20 motion (summary judgment)- r. 17.06 foreign D trying to stay & strike case b/c of (lack of jurisdiction, foruminconvenient)

Summary Judgment (r. 20)

- Judging case on merits- Motion done by affidavit evidence

If evidence based on hearsay crt draws ve inference- Can do it for part of claim or whole claim

- Both P and D can do it- Can be done after both pleadings framed OR just w/ statement of claim w/ leave- May not even need discovery- Strong discretion of crt not a permissive rule crt only does this in clearest of cases- r. 20.06 crt will fix costs if you lose motion- r. 20.09 applies to all claims x-claims, counterclaims- Dawson,Jane Doe law on summary judgment- Ungerman,Aguonic,Dawson r. 20 not meant to displace adversary system- Balancing concept of day in crt v frivolity- Rogers

Put best foot fwd

Motions judge will take hard look at evidence- Augonie, Ungerman if crt needs to access credibility (eg conflicting affidavits) willnot do summary judgment- r. 39 opportunity to x-examine on affidavits out of crt examination transcript if1 person lying can still do summary judgment- Augonie need clear demonstration if no genuine issue- Dawson

Evidence


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Genuine need for trial

Deference for trial process

Look at pleadings, affidavits, case law see if enough facts to show case

If plain & obvious no case summary judgment given- If conflicting evidence summary judgment does not work

- Copland Strike out para w/ leave to amend it

Procedural disposition w/o trial

- Getting rid of case for procedural reasons

r. 19 default proceedings D did not defend

delay/non-compliance (usually crt does costs rather than this)

r. 23 discontinuance P changes mind or settles it- Default judgment

D deemed to admit allegation

P can proceed by 2 avenues

Get default judgment (judgment on liquidated claims things thatare specific) Campbell

For unliquidated damages move for judgment

If default judgment given against client when he was away can have it set aside(Lenskis criteria that need to be met for this)

Dismissal for Delay and Non-Compliance with Rules (rr. 24, 48.14)

- Delay

Belanger test- Non-compliance

Baksh

Discontinuance (r. 23)

- r. 23.01 (1) (c) consent

Crts prefer to give ppl their day in crt costs awarded

ECONOMICS OF LITGATION: COSTS, FEES, ACCESS

Access to Justice

- Justice can be made more accessible by removing obstacles in processes& institutions of law- Access to legal knowledge not just access to the system- Equal access to the means to use an institution- Should not focus purely on the delivery of legal services should lookat the value of preventative law (nonlegal means, not going w/ lawyers alone)- We see justice as individualized dont see the concept of social justice


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- Therefore, we see access to justice as access to institutions that give outjustice as far as that is determined by the pre-existing legal culture

Access Solutions

- Private insurance (CAW plan) contributions pooled, risk spread

- Paralegals (governed LSUC, specialized training, insurance, license) Romanowiczss. 800 & 802 of CCC allow counsel/agent to appear (for a fee) for summary convictions- ADR informal, flexible, subjective (probs less protection & regulation)- Case Mgmt reducing cost & delay by keeping case on track- Class Actions- Small Claims- Simplified Proceedings- Legal Aid clinics, certificates, duty counsels for 1st appearances no legal aid forcivil cases- Self Representation- Contingency Fees risk shifts to lawyer

Costs

- Costs v Fees

Cost cost-shifting regime in ON losing party pays costs of winning party putlawyers and parties in check

Fees actual amt of money paid to lawyer & hourly rates for crt (lawyers fees,disbursements)

- Change in RCP re costs

Boucher establishes principles behind current regime

CofA set principle of fixing costs according to r. 57.01 & costs grid

Fixing of costs not mechanical exercise costs grid is one factor in

assessment process Objective is to fix an amt that is fair and reasonable for unsuccessfulparty to pay in particular proceeding rather than amt fixed by actual costsincurred by winning party

Gave rise to the present r. 57- Process

s. 131 CJA, r. 57.01 costs of proceeding at discretion of crts (to whom and towhat extent) typically given to winning party

r. 57.01 (1) , 57.03 (1) (a) certain factors increase, decrease amt of costs awarded

compareBoucher(amt of costs that unsuccessful party can reasonably be expectedto pay in relation to step in proceeding) andPittman (what the services are worth)

rr. 57.01 (3), 57.03 costs to be fixed to winning party at trial on a motion byjudge/master

rr. 57.02, 57.04, 58 Costs can also be sent in exceptional cases to be assessed byassessment officer

- Three primary scales of costs awards partial indemnity, substantial indemnity, fullindemnity- Partial Indemnity


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rr. 1.03, 1.04 in normal case costs awarded on partial indemnity basis subject toaggravating/mitigating circumstances

Pittman subject toBoucher

Boucher

objective to fix an amt that is fair and reasonable for unsuccessful

party to pay in circumstances of particular proceeding, rather than specificamount incurred by successful party

policy balance both parties costs & access to justice(reasonableness and justice are key)

Whiten andJane Doe examples of partial indemnity costs award- Substantial Indemnity

Awarded in exceptional circumstances

Young

reprehensible, scandalous or outrageous conduct on part of one ofthe parties

lack of merit not a reason

fact that part of litigation was paid for by others not a reason

Further reasons for increasing cost awards

Discourage abuse / excessive use of system

Regulate conduct of parties or lawyerso Unproved allegations of fraud / dishonesty

o Dishonest / misleading / bad faith conduct

Deal more equitably with amounts of costs

As required by rules rr. 20.06, 49.10

Other fact-specific baseso Lammie P maintained pleading knowing there was no

evidentiary basis esp on the eve of trial deemed unreasonableo Niagara

- Full Indemnity rare (Schreiber)- Other costs considerations/circumstances

s. 57.07 costs against lawyers rare

Young we have to zealously represent clients, so some leeway

Schreiber

Costs against intervenors (not likely)

Costs against non-parries (very rare)

No costs

s. 131 of CJA under this SCC awards no costs If winning party was gov and losing party was justified incomplaining

- Policy

Is Ontario fee-shifting approach fair?

Are amounts too high / low? seriousness of case

Should success in proceeding or reasonableness for unsuccessful party be dominantfactor?


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Does / should your assessment depend on nature of parties involved (corporations,individuals, indigent parties, etc.)? corps can deduct legal fees from taxes, infamily law costs dip into damages

Does current costs regime facilitate or hinder access to justice

Fees- r. 2.08 of Rules of Prof C fees have to reasonable- Ontario approach to fees hyrbrid of market driven & regulated fees

Hourly rates

Set fees to allow for certainty

Contingency fees currently not cap, but subject to r. 2.08 of RoPC- Contingency fees

McIntyre (2002)

Champerty & maintenance

Crt persuaded by access to justice

ss. 15, 16 Solicitors Act allowed solicitors to start charging contingency fees(codifiedMcIntyre)

Raphael Partners

Interpreted r. 2.08

Fees need to be fair and reasonable (set out criteria for reasonable)

Favoured access to justice- Assessment of fees

Solicitors Act clients can challenge lawyers fees, lawyer can challengenonpayment

Client can bring issue to crt OR bring complaint before bar association to havelawyer disciplined

- Relation of fees to costs under rules

Documents

Legal Process Farrow 2008