The Trail of a Trial

1. The Trail of a Trial Canadian Association of Law Libraries May 7th, 2007 Hon. Mr. Justice J. Douglas Cunningham Master Calum MacLeod Anne Mullins, barrister & solicitor

2. Civil Procedure in Canada • Unlike criminal procedure, civil procedure in Canada varies from province to province. • Generally rules are established by regulation under the act that governs the provincial superior court or are established by the court • There may be specialized rules for different kinds of proceedings. eg. family or class actions, estates, etc. • There may be differences in terminology

3. Courts and Judicial Officers • Superior Courts have different names in different provinces. eg. Queen’s Bench, Supreme Court, trial division, Superior Court. • Judges of superior courts in Canada are appointed by the federal government (s.96) • Certain provinces: B.C., Alberta, Manitoba, Ontario, P.E.I. also have provincially appointed judicial officers (masters or prothonotaries) who discharge certain functions of judges. • Superior courts have general jurisdiction in criminal and civil matters and have residual authority.

4. Civil Proceedings in Canada • Most civil proceedings that are not in small claims court will be in a provincial superior court. • Civil proceedings start with pleadings, move to a process of disclosure of documentary and other evidence and are most often resolved by negotiation either with or without court or third party assistance. • Motions are brought to enforce rules of civil procedure, to obtain exemptions from the rules, or to obtain leave of the court for certain steps. • Motions may also be brought to terminate a proceeding. • Trials take place in fewer than 5% of civil proceedings. In most jurisdictions certain trials may be with a jury.

5. Initiating an action - Pleading Plaintiff starts legal action by Issuing a formal claim – (statement of claim, writ of summons, application, petition, etc.) Defendant formally defends - statement of defence (may also join other parties by Counterclaim, third party, etc. Plaintiff may reply = close of pleadings formal notice by personal service or alternative no defence = default proceedings

6. Adding Parties to an Action • Counterclaim – makes the plaintiff a defendant by counterclaim. • Counterclaim against plaintiff and others – adds defendants by counterclaim. • Third party – claim by defendant for indemnity or other reimbursement if found liable on the claim. Third party may defend the main action and may add a fourth party, etc. • Crossclaim – claim between two defendants • Intervenor – seeks standing to participate and be heard though not directly affected by the judgment.

7. Typical steps in a civil action ADR – mediation, arbitration, etc. JDR- pre-trial, settlement conference, trial management , etc. Pleading Documentary Production Discovery Trial List for trial Motion or case conference

8. The Trial Itself • Called for trial – fixed date or running list • Criminal or Civil – procedure & burden of proof different • Jury or non jury – procedures slightly different • Evidence by admission, by documents under the Evidence Act, by oral evidence and by documents formally proven by oral evidence • After presentation of evidence – counsel argue the interpretation of the evidence and application of the law to the evidence • Judge or jury makes findings of fact • Judge applies the law to the facts • Verdict of jury or reasons of judge • Formal judgment

9. The Trial cont. • Formal structure like a debate • Plaintiff or prosecution goes first – • Defendant responds • Plaintiff or prosecution has right of reply • Opening – then evidence – then argument – then decision • Rights of appeal – on fact for palpable and overriding error – on law for correctness

10. The Trial objections & rulings at trial Evidence Exam. in Chief Cross Exam Re-exam. Admissions, documents Preliminary Steps Jury Selection, Admitted Facts & Documents Preliminary Motions & orders Closing Summary of evidence & legal argument Opening Description of issues and evidence Charge To Jury Verdict Judgment