Background & purpose of the system 1 basic institutions, processes, and players 3
Parties need capacity and standing to be a named in a proceeding (per
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Parties need capacity and standing to be a named in a proceeding (per Rules of Civil Procedure r. 14.06) Capacity: threshold matter, does the party have the capacity (physical or mental) to participate as a litigant Generally, individuals automatically presumed to have capacity Rules of Professional Conduct r. 3.2-9: a lawyer is to treat a client as much as possible as capable and take away their will only to the extent that we have to in good faith because they don’t have the capacity RCP r. 1.03(1), 7.01(1): definition of disability set out in the rules; people might need a representative to sue or be sued r. 1.03(1): “disability”, where used in respect of a person, means that the person is, (a) a minor, (b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or (c) an absentee within the meaning of the Absentees Act; (“incapable”, “incapacité”) r. 7.01 (1): Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian. Legal persons (non-profits, corporations) can still have capacity. Partnerships and sole proprietorships do as well (RCP r.8) Standing- purpose Canada v Downtown Eastside: limitations on standing are necessary; not everyone with capacity and who may want to litigate an issue, regardless of whether it affects them or not, should be entitled to do so any given time. Key is balancing of access to courts and preserving limited judicial resources Must have Private Interest, or otherwise Public Interest Standing if it is unreasonable or Impractical for an individual to bring a claim Canada v Downtown Eastside: three factors to ground public interest standing: (1) Whether the case raises a serious judiciable issue; Here, “no dispute that action raises serious and justiciable issues” The respondents argued that the impugned Criminal Code provisions, by criminalizing many of the activities surrounding prostitution, adversely affect a great number of women. These issues were clearly justiciable ones, as they concerned the constitutionality of the challenged provisions. Consideration of this factor unequivocally supported exercising discretion in favour of standing. (2) Whether the party has a genuine interest in the claim; and Here, found “no doubt” that this factor favored granting public interest standing Downtown Eastside had considerable experience with the sex workers in the Downtown Eastside of Vancouver and was familiar with their interests. It is a registered non-profit organization that is run "by and for" current and former sex workers who live and/or work in this neighbourhood of Vancouver. Its mandate is based upon the vision and the needs of street-based sex workers and its objects include working toward better health and safety for sex workers, working against all forms of violence against sex workers and lobbying for policy and legal changes that will improve the lives and working conditions of the sex workers (3) Whether the proposed suit is a reasonable and effective means to bring the case to the court Used to be interpreted as no other means to bring it forward, but in this case it was interpreted strictly as reasonable means Purposive approach: court should consider whether it is an economical use of judicial resources, whether context of issues is suitable for judicial determination in an adversarial setting, and whether allowing it to go forward will uphold the principle of legality In this case #3 was the key issue and the court held that it was met The record supported the Downtown East side’s position that they have the capacity to undertake this litigation. The Society is a well-organized association with considerable expertise with respect to sex workers in the Downtown Eastside Existence of parallel litigation (Bedford) in another province is not sufficient to deny standing (distinguishable issues and perspective) None of the individual sex workers at/in care of Downtown Eastside were willing to bring this case forward → Just because they can sue, should they? See proportionality below and also consider the purposes of the system Joinder: Rules of efficiency allow us to bring multiple claims (RCP r. 5.01) and parties (RCP r. 5.02) and into same piece of litigation Multiple parties allowed under 5.02 where they (a) assert similar claims, (b) common question of law may arise, or (c) joining the proceeding may promote convenient administration of justice CJA, s. 138: “As far as possible, multiplicity of proceedings shall be avoided” Intervenors: third party group not directly associated with the case but with an interest in its outcome RCP r. 13.01: “Added party” is a way of becoming a party after the fact, if motion is accepted the court file is amended and person becomes a plaintiff (rare) Happens if they have a genuine interest in the subject matter, would be adversely affected by the judgement, or there is a question of law in common “Non-party friend of the court” can be added in two ways: (A) on motion (“a traditional intervenor)” (RCP r. 13.01(1)) or (B) amicus curiae, invited by the judge, known as a ‘friend of the court’ (RCP r. 13.02) **does not become a party Download 217.64 Kb. 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