Supreme Court Civil Rules - Civil Procedure - Past Paper, Exams of Civil procedure

Download Supreme Court Civil Rules - Civil Procedure - Past Paper and more Exams Civil procedure in PDF only on Docsity! Law 270B-003 Page 1 of 18 Please write in the question numbers that you have answered: 4 THIS EXAMINATION CONSISTS OF 5 PAGES AND ONE APPENDIX (18 pages total) Please ensure that you have a complete paper THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW FINAL EXAMJNATIONSATURDAY APRIL 14, 2012 LAW 270B-003 Civil Litigation Adjunct Professors Andrew Nathanson and David Crerar TOTAL MARKS: 90 TIME ALLOWED: 3 HOURS General Instructions This Final Examination consists of two parts: • Part 1 requires you to answer of three short answer questions: 15 marks each, for a total of 30 marks. Recommended time: one hour. • Part 2 consists of a Fact Pattern: one guestion, no choice: 60 marks. Recommended time: two hours. We strongly urge you to conserve your time, andfocus on the speqfic issues raised in each question: in marking, we will reward reflection, not regurgitation. The Examination is closed-book. The only material to which you may refer is a copy of the Course Outline, attached as Appendix “A “. You may not refer to your own copies of the Course Outline. Good Luck. THIS EXAMINATION CONSISTS OF 4 QUESTIONS IN TOTAL, ONLY 3 OF WHICH MUST BE ANSWERED: 2/3 SHORT ANSWER OUESTIONSg 1 FACT PATTERN DM_VAN/243841-002 I 1/8300856.1 Law 270B-003 Page 2 of 18 PART 1 ESSAY QUESTIONS (ANSWER ONLY TWO OF THE THREE QUESTIONS) Marks 15 1. How have the (relatively) new Supreme Court Civil Rules affected examination for discovery practice, procedure and ethics? 15 2. “The procedure prescribed by R.]8A [now Rule 9-7J may not furnish perfect justice in every case, but that elusive and unattainable goal cannot always be assured even after a conventional trial and I believe that the safeguards furnished by the Rule and the common sense of the chambers judge are szfJicient for the attainment ofjustice in any case likely to be found suitable for this procedure. Chambers judges should be careful but not timid in using R.18Afor the purpose for which it was intended.” Discuss. 15 3. Is the result in Novak v. Bond appropriate? Or is it result-based reasoning? Provide a brief case comment. PART 2 FACT PATTERN (YOU MUST ANSWER THE FOLLOWING ONE QUESTION) Marks 60 4. The Chase Bobcats Ltd., a B.C. corporation (the “Bobcats”), are a minor league professional hockey team. As their name implies, the Bobcats play out of Art Holding Memorial Arena (“Holding Arena”) in the Village of Chase, B.C. (“Chase”). The Bobcats are owned by Aiden Tarry (“Tarry”). Tarry, a billionaire casino mogul, is a Canadian citizen but resides in Durham, North Carolina. Tarry’s family was originally from Chase. The Bobcats are members of the Alberta-British Columbia-Idaho Hockey League Ltd., also a B.C. corporation (“ABCIHL” or the “League”). The League consists of twelve member teams: three from B.C., two from Alberta and seven from Idaho. The League is governed by a twelve member board of directors (the “Directors”), consisting of the principal owner of each member team. Apart from Tarry, the Directors are all wealthy former industrialists and ski buddies who reside in Sun Valley, Idaho, where they conduct all League business at their own private picnic table at the top of a black diamond run named “Picabo’s Street”. The Bobcats joined the League in September 2009 after the prior club playing in Chase, the Otters, folded. In order to maintain the coveted lease on Holding Arena, the League took an assignment of the Otters’ lease (the “Otters Lease”) with Chase, and in turn entered into a sublease with the Bobcats (the “Bobcats Lease”). Tarry personally guaranteed the Bobcats Lease. DMVAN/243841-0021 1/8300856.1 Law 270B-003 Page 5 of 18 to give opinion evidence on British Columbia law for use in an action commenced in state court in Idaho (the “Idaho Action”) by the League against another member team, the Scotch Creek Salmon of Scotch Creek, B.C. (the “Salmon”), for failure to pay the luxury tax assessment, contrary to the Salmon’s own affiliation agreement (the “Salmon Affiliation Agreement”). The Salmon Affiliation Agreement was made much earlier than the Affiliation Agreement and does not contain the Forum Selection Clause. The question in the Idaho Action is whether there is a juridical advantage to the Salmon in litigating the validity of the luxury tax assessment in British Columbia, which is their preferred forum. This in turn involves a comparison of the rules of civil procedure in British Columbia and Idaho (the “Idaho Rules”). Your senior partner tells you that the Idaho Rules are identical to Part 11 (“Experts”) and R. 1-3 of the SCCR, and contain no other provisions. On reviewing the file your senior partner gives you, you learn that the U.S. general counsel for the League has told your senior partner that it is very important for strategic purposes to keep the Idaho Action in Idaho. In respect of the retainer for the expert opinion in the Idaho Action, your firm has used its standard form engagement letter, which provides that it will bill the League based on its usual hourly rates, but that it reserves the right to bill a premium in the event of success. You also see in file an e-mail from your senior partner to the League’s general counsel saying, “I am practising primarily international arbitration these days and have had little experience with the SCCR since they came into force. Nevertheless, the principles are the same as under our prior Rules of Court. I will need to engage a bright associate to assist me in preparing my opinion but I will sign off on it”. You are that bright associate. Your senior partner asks for your thoughts on the issues and strategy you recommend arising from Tarry and the Bobcats’ action and the opinion she has agreed to give in the Idaho Action. What do you advise? I END OF EXAMINATION DMVAN1243841-0021 1/8300856.1 APPENDIX “A” LAW 270B-003: CIVIL LITIGATION COURSE OUTLINE 2012 (Note: Incorporates revisions to Week 7 and Pass-Fail Assignments) 5 January to 5 April 2012 (Thursday evenings 17:30 — 20:30) ANDREW NATHANSON, Fasken Martineau DuMoulin LLP (anathanson@fasken.com) and DAVID CRERAR, Borden Ladner Gervais LLP (dcrerar@blg.com) Class website: http://www.law.ubc.ca/courses/LAW27OB-003/index.html Objectives This course has the following objectives: 1. Introduce the fundamentals of civil procedure and familiarize students with the structure of a civil action. 2. Provide a theoretical framework for the rules of procedure and identifi the values and policies on which the rules are based. 3. Place these rules in a practical context to encourage future practitioners to wield the rules in a responsible, strategic, and cost-effective manner. Materials We will refer most often to the Casebook and Walker. Several copies of Walker are on reserve in the library. The course materials are available for purchase in the Bookstore. 1. Crerar / Nathanson, Civil Procedure Casebook 2012 (the “Casebook”). 2. Janet Walker, et al., The Civil Litigation Process: Cases and Materials, 7th ed. (Toronto: Emond Montgomery Publications Ltd., 2010) (“Walker”) (formerly “Watson”). 3. Supreme Court Civil Rules. The new Supeme Court Civil Rules took effect on July 1, 2010. We will teach the new Rules. They can be found in the following sources (and you may use any of the sources): • Bouck, Dillon, and Turriff, British Columbia Annual Practice 2011-2012 (Canada Law Book Inc.) (the “White Book”) • Seckel & Maclnnis, Supreme Court Rules Annotated 2012 (Carswell) (the “Black Book”) • The new Rules are also available online at: Iittp://wwwlclas.ca/EPL ihraries/bc las new/document! lDifreesidc/ I 6$ 200Q0 I • A concordance of the old and new rules is found here: http:/!www.ag.gov, hcca/new rti ies/pdis’civ ilru lesconcordance.pd 1. DMVAN/243841-0021 1/8300856.1 Page 7 of 18 The former rules are j required reading but are, however, very useful for understanding the new Rules, and are the rules on which all of the case law in this course are based. We will frequently refer to the former rules. Past editions of the White Book and the Black Book will be useful in this regard. We may at times hand out or refer to recent judgments or other supplementary readings. Evaluation The evaluation method in this course will be by: (a) 10%: based on two very simple and brief pass-fail assignments: a pleadings drafting exercise (3-4 pages) and a report on an independent visit (1 page) to the British Columbia Supreme Court Civil Chambers (at any British Columbia Courthouse); and (b) 90%: a final examination set during the Faculty examination period. As per the Faculty’s policy, “Mark Deduction For Late Assignments”, a late penalty of 1 mark per day will be assessed. Schedule Please note it is our goal to keep classes in this order, limiting these topics to the assigned classes, but dates and contents are subject to change as necessary. 1. Topics: (a) Overview of course (b) The life cycle of a civil action 2. Readings: (a) Walker, pp. 64-85 (Overview of Civil Procedure) (b) Handout: “Life cycle of an action in British Columbia Supreme Court” 3. (Optional Readings): (a) A. Nathanson & G. Cameron, ComplexLitigation under BC’s new Supreme Court Civil Rules, p. 1 1. Topics: (a) The adversary system (b) The rule of law and judicial independence (c) Ethical issues Legal disclaimer: these page numbers represent rough estimates. DM_VAN/243 841-0021 1/8300856.1 Page 10 of 18 (b) Walker, pp. 487-490, 496-498 (function and purpose of pleadings) and 500 (ethical issues) (c) Rules 20-3, 20-4 & 22-5 (old 5), 20-2 (old 6), 20-1 (old 7), 3-7 (old 19), 3-1 (old 20), 3-4 (old 21), 3-6 (old 23), and 6-1 (old 24) 3. (Optional Readings): (a) Joly V. Pelletier (striking pleadings), p. 122 (b) NationalLeasing Group v. Top West Ventures Ltd. (striking pleadings), p. 124 (c) Canadian Federation ofStudents v. Simon Fraser Student Society (striking pleadings), p. 127 4. (Useful Resources (NOT necessary to read but useful for assignment)): (a) Casson & Dennis, Odgers ‘s Principles ofPleadings and Practice, chap. 6 & 7 (b) Bullen & Leake & Jacob, Precedents ofPleadings (c) McLachlin & Taylor, British Columbia Court Forms 5. Pass-fail assignment discussion: Notice of Civil Claim Drafting Assignment 1. Topics: Walker, pp. 534-535 (purposes of discovery), 538-543 (ethical issues), 550-552 (discovery of electronic documents), 603-608 (privilege), 62 1-643 (waiver of privilege, ethical issues, litigation privilege), 655-663 (discovery of documents from third parties and confidentiality), and 664-680 (implied undertaking of confidentiality) (b) Casebook: (i) Blank v. Canada (Minister of Justice) (privilege), p. 137 (a) Discovery of documents (b) Proportionality in discovery (c) Discovery of documents from third parties (d) The implied undertaking of confidentiality (e) Postponing discovery of documents (1) Privilege (g) Ethical issues: discovery 2. Readings: (a) DMVAI.L’243841M02I 1/8300856.1 Page 11 of 18 (ii) (iii) (iv) (v) (vi) (vii) (viii) (L) (c) White Book (i) Rules 7-1 (old 26) and Part 5 (old 68) 3. (Optional Readings): (a) GWL Properties v. WR. Grace (1992 BCSC: document disclosure), p. 182 (b) Dufault v. Stevens (non-party discovery), p. 187 (c) A.M. v. Ryan (non-party discovery), p. 192 (d) Whitcombe v. Avec Insurance Managers (document proportionality), p. 195 Topics: (a) Examinations for discovery (b) Examinations of non-party witnesses (c) Interrogatories (d) Physical examinations and inspections (e) BCSC Chambers and applications 2. Readings: (a) Walker: 571-573 (purposes of examinations for discovery) (b) Casebook: (i) Peter Kiewit Sons v. B.C. Hydro (document proportionality), p. 144 Desgagne v. Vuen (electronic discovery), p. 148 IBEW v. Hochstein (implied undertaking), p. 156 Hodgkinson v. Simms (privilege), p. 162 Keefer Laundry Ltd. v. Pellerin Milnor Corp. (privilege), p. 171 Dykeman v. Porohowski (privilege/internet/list), p. 174 Tai v. Lam (document proportionality), p. 181 TabF B.C. Lightweight Aggregate v. Canada Cement Lafarge (corporate representative), p. 199 DMVAN/24384 1-00211/8300856.1 Page 12 of 18 (ii) Fraser River Pile and Dredge v. Can-Dive Services Ltd. (discovery ethics), p. 202 Sinclair v. March (non-party examination), p. 204 Practice Direction: Masters’ Jurisdiction PD-14, p. 209 Fraser v. Houston (securityfor costs), p. 212 Forliti v. Wooley (examinationsfor discovery: scope and objections), p. 216 Kendall v. Sun Life Assurance Company of Canada (examinationsfor discovery: scope and objections),p. 220 Tabs G, H Book Rules 7-2 (old 27), 7-5 (old 28), 7-3 (old 29) 7-6 (old 30), 22-2 (old 51), 8-1 (old 51A), 22-1 (old 52) 3. (Optional Readings): (a) Roitman v. Chan (interrogatories), p. 228 (b) Cominco v. Westinghouse (examinations for discovery), p. 231 Week 8: Complex Litigation Part 1: 1 March (631 2. Readings: (a) Walker, pp. 309-363 (joinder of claims, res judicata, issue estoppel, and abuse of process) and 370-379 (issue estoppel) 3. Pass-Fail Assignments Due: in class (greatly preferred) or by emaiL (iii) (iv) (v) (vi) (vii) (viii) (c) White (i) 1. Topics: (a) (b) Res Judicata Issue estoppel 1. Topics: DMVAN/243841-0021 1/8300856.1 Page 15 of 1 8 Bank of Credit & Commerce v. Akbar (2001 BCCA) (special costs), p. 335 Fraser v. Houston (see above, Week 7) (securityfor costs), p. 212 CFAR v. Canadian Jewish Congress (see above, WeekS) (securityfor costs), p. 107 (iv) Nazmdeh v. Spraggs (costs against lawyer personally) , p. 338 (v) Robson v. Chrysler (class action costs), p. 344 (vi) Exclusive Floor Sales Limited v. Fipke (offer to settle), p. 347 (vii) Martin v. Lavigne and Neufeld (offer to settle costs), p. 348 (viii) Tab I (c) White Book i) Rules 9-1 (old 37B), 14-1 (old 57), and Appendix B (ii) Class Proceedings Act: ss. 37 & 38 (costs provisions) 3. (Optional Readings): (a) Little Sisters Book and Art Emporium v. Canada (advanced costs), p. 352 (b) “Da Vinci Code Appeal is Dismissed” (UK v. Canada costs), p. 364 (c) Bystedt (Guardian ad litem of) v. Hay (costs against lawyer personally), p. 366 (c) Jayetileke v. Blaker (offer to settle; special costs), p. 367 (a) Walker, pp. 117-121, 125-151, 161-169, and 940-945 (b) Casebook: (i) (ii) (iii) 1. Topics: DM_VAN/243841-002 11/8300856.1 Page 16 of 18 (a) Notices to Admit (b) Expert evidence (c) Standing (d) Intervention (e) Evidence and procedure at trial 2. Readings: (a) Skillings v. Seasons Development Corporation (#1 & #2) (notice to admit), p. 372 andp. 373 (ii) Vancouver Community College v. Phillips Barratt (role and duty ofexperts), p. 377 Surrey Credit Union v. Willson (admissibility ofexpert evidence), p. 382 Yewdale v. ICBC (admissibility ofexpert evidence), p. 386 (iii) (iv) (c) White Book (i) Rules 7-7 (old 31), 9-2 (old 35), 12-1 to 12-6 (old 39), 12-5 (old 40), and 11-6 & 11-7 (old 40A) 3. (Optional Readings): (a) Pedersen v. Degelder (expert evidence), p. 390 (b) Del ramuukw v. B.C. (expert evidence), p. 395 To be held at Fasken Martineau DuMoulin LLP (2900 - 550 Burrard Street, Vancouver: Bentail 5 Building) or Borden Ladner Gervais LLP (12h Floor, 200 Burrard Street): to be announced. 1. Topics: Contents and structure of exam General review of the course Pizza Beer Further and in the alternative, other beverages Walker: 477-485 (expert evidence), 381-397, 403-410 (standing), 461 and 468-477 (intervention) (b) Casebook: (i) (a) (b) (c) (d) (e) DM_VAN/243841-002 11/8300856.1 Page 17 of 18 L Civil Litigation: Bibliography I Rule Books • Bouck, Turriff& Dillon, British Colwnbia Annual Practice (the “White Boo/c”): the standard British Columbia Rule book, it provides short summaries of the key cases interpreting each rule. KN361.B74 C658 • Seckel & MacInnis, BC Supreme Court Rules Annotated (the “Black Book”): like the White Book, but with very useful mini-essays on each Rule. KN361 .B742 Civil Procedure Guides and Commentaries • Abrams & McGuinness, Canadian Civil Procedure Law (Lexis Nexis, 2008) • Fraser & Horn, The Conduct ofCivil Litigation in British C’olumbia (2 vol.): organized by procedures and themes, rather than by rules. It is useful but at times sparse. It tends to cite venerable and ancient black-letter cases. KN350 .F738 • McLachlin & Taylor, British Columbia Practice (3 vol.): organized by Rule numbers, it offers the most complete (if sometimes excessive and bewildering collection ofjudicial application unwieldy and interpretation of each rule. KN361 .M325 • May et al., Civil Procedure (the English “White Book”): organized like our White Book, on which it is based. Often older editions of the book (circa 1960) are more useful as at that time the English and British Columbia rules were very similar. Often a more appropriate interpretative tool than, say, Ontario rules. KN350 .C595 1972 • Stevenson & Côté, Civil Procedure Encyclopedia (5 vol.): a valuable survey of different procedural topics, focusing on Alberta, BC, and Ontario. It will often provide just the case you are looking for where other sources come up dry. KN361 .S849 2002 • Williston & Rolls, The Law ofCivil Procedure: a classic text (albeit unrevised since 1970), respected by courts; it often supplies obscure gems of legal authority. KN0350 .W55 1970 Pleadings • Atkin ‘s Court Forms: English Encyclopedia of court forms. KN351 .A855 • But/en & Leake & Jacob ‘s Precedents ofPleadings: the classic pleadings text; sometimes older editions (e.g. 1975) will be more useful as they focus more on common law claims and defences and less on English statute law. KN380.3 .B843 2004 • Casson & Dennis, Odgers on Pleadings and Practice: another classic text, with an enormously useful introductory chapter on pleadings and practice. KN380.3 .0349 1991 • McLachlin & Taylor, British Columbia Court Forms (4 vol.): the authoritative British Columbia book of precedents. KN360 .M252 2005 Discovery • L. Harris, QC, Discovery Practice in British Columbia (CLE) KN 390.61 .C65 H37 (not at UBC) DM_VAN’243841-002J l’g300856. I