Background & purpose of the system 1 basic institutions, processes, and players 3

Proportionality, Commencing Proceedings, Pleadings

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Legal Process II (Farrow) - 2021 Winter

Proportionality, Commencing Proceedings, Pleadings

General principle of interpretation (RCP 1.04(1)): These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

  • expresses main underlying motivation of RCP is to improve administration of and access to civil justice

Proportionality (RCP 1.04(1.1)): In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding

  • Clear that proportionality must mean something more than merely enhancing judicial efficiency, since 1.04(1.1)) was added to the general principle of interpretation above (Farrow).

  • Key is in the normative aspect of proportionality that requires some form of holistic evaluation of the matter at stake before deciding how to proceed (Farrow).

    • Includes evaluation of:

      • The money at stake/costs involved

      • The complexity of the issues at dispute, and the case at large

      • The relative importance of the case (not limited to only the parties involved)

    • Consider 2 cases with same amount of damages, same amount of legal fees (that exceed damages) – one is a pay equity case and the other is a ‘slip and fall’. Proportionality issue: legal fees exceed the claim – whether the process is worth it (basically asking whether the cost is proportionate to the outcome), is there a level of complexity, or is an issue at stake sufficiently important such that moving forward is warrented?

  • Becoming a facet of professional obligations for lawyers as well to consider fair fees + ADR, proportionality in general, also becoming part of the current endgame of the system (justice) (Farrow)

    • Not only relevant to commencing proceedings but have to do things that are proportionate every step of the way

    • obligation to canvass- at least discuss- ADR with client (Rules of Professional Conduct. 3.2-4)

  • In (Moosa v Hill), the ONSC court considered the impact of the general principle of proportionality introduced by r 1.04(1.1)

    • Here, court adopted reasoning of Lord Woolf in his report “Access to Justice”, positing that procedures and cost which are proportionate to the nature of the issues involved in a given piece of litigation are an element of access to justice, and necessary to establish “equality of arms” between the parties involved in civil cases (court has duty to ensure do not develop in an unnecessarily complex/costly manner)

    • Also examined legislative history of the provision; found was to make civil justice system more accessible and affordable for Ontarians

      • Ultimately concluded “… I recognize the value of mediation and other forms of alternative dispute resolution in the bringing to an economical and sensible resolution a wide variety of disputes between parties. However, the fact that these other alternatives are available, ought not to deprive any citizen of their right of access to a trial before the courts of this province if that is what is desired or necessary. If the plaintiff in this case is to have a trial, this court is charged with the duty (pursuant to r 1.04)` of reducing delay and ensuring progress towards an “equality of arms".

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