4833928
Description
Flashcards by Penny-Ann Lupton, updated more than 1 year ago
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Created by Penny-Ann Lupton
over 8 years ago
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| Question | Answer |
| Rule 16 | - Fixing a Date for Trial |
| If action is not resolved at settlement conference? | Clerk gives parties notice that party must request trial date & pay fee if action not disposed of within 30 DAYS after settlement conference (Rule 13.07) |
| Who is responsible for moving matter forward? | Generally plaintiff |
| How do you set a trial date? | Party must complete & file request to clerk (9B) for trial date & pay fee for setting matter down for trial |
| Cost to set matter down for trial? | • $100.00 for infrequent claimant • $130.00 for frequent claimant |
| When you receive a notice of trial: 5pts ANCSR | • ADVISE client of date • NOTE date in your calendar with suitable bring-forward dates • Ensure COMPLIANCE with orders/directions from settlement conference judge • SERVE docs/written statements not already disclosed on all parties • REVIEW disclosure from other parties |
| What do you do if you intend to cross-examine the author of a written statement/doc served on you by another party? | serve author PERSONALLY with a summons to witness -& attendance MONEY -at least 10 DAYS before trial date |
| What do you do if you require presence of witnesses other than your client at trial? | serve them PERSONALLY with a summons to witness & attendance MONEY at least 10 DAYS before trial |
| Adjournment of Trial Date CCCNRN | -if scheduling CONFLICT/other good reason -give other parties advance notice & see if they will CONSENT -if other parties consent, obtain mutually CONVENIENT dates, if possible -NOTIFY clerk -Clerk will REFER matter to judge. -If judge grants request, clerk will notify parties of NEW DATE |
| Adjournment of Trial Date rule 17.02(1) 4pts | -court may postpone/adjourn trial on such terms as JUST -including pymt by 1 party to another as COMPENSATION for inconven & expense -Even if parties agree to adjournment, court NOT BOUND by agreement, may order go ahead on originally scheduled date -If scheduling conflict but court REFUSES to grant adjournment, must make arrangements to avoid prejudicing client |
| Failure to Attend at Trial – Proper Place of Trial (Rule 17.01(2)) | -If party fails to attend, court consider any issue as to TERRITORIAL JURISDICTION under Rule 6.01(1) raised in defence, and make a ruling (before any other order) -If court determines matter should have been brought in another court, then has no legal jurisdiction to make any order except MOVING to court with jurisdiction |
| Trial of UNDEFENDED Action (Rule 18.01) 2PTS | -plaintiff’s case may be proved by AFFIDAVIT, unless trial judge orders otherwise -Since changes to Rules ( July 1, 2006) NO LONGER TRIALS |
| Inspection of Property (Rule 17.03) | -Trial judge may, in presence of parties or representatives, inspect any real/personal property concerning which a question arises in action |
| Ontario Evidence Act permits following documents to be admitted as authentic, absent proof to the contrary … 6PTS +2PTS | -consolidated STATUTES of Ontario -books/records of BANKS -photographic prints of PROMISSORY note, cheque, receipt, or other record or book of entry kept by a person -ELECTRONIC records, including printouts -BUSINESS RECORDS made in usual & ordinary course of business -MEDICAL RECORDS including • report signed by PRACTITIONER obtained by/prepared for a party •ANY other report of practitioner that relates to action |
| Evidence at Trial – Hearsay Exception (Rule 18.02) 2pts | -Doc/written statement/audio/visual record that has been served at least 30 DAYS before trial on ALL PARTIES -shall be received in evidence, unless trial judge orders otherwise |
| Rule 18.02 applies to … 3pts +7pts | -signed, written STATEMENT of any witness, including expert report -statements in written statement must RELATE to facts & opinions to which witness would be permitted to testify in person -any other DOCUMENT, including but not limited to: •HOSPITAL record •MEDICAL report •FINANCIAL record •RECEIPT •BILL •documentary evidence of LOSS OF INCOME or property damage •REPAIR estimate |
| Details About Witness or Author (Rule 18.02(3)) 3PTS | -written statement/document shall include in written statement/appendix: -NAME # & ADDRESS for service of witness/author -if witness/author is to give expert evidence, summary of QUALIFICATIONS |
| Summons to Witness on Witness or Author (Rules 8.01(7), 18.02(4), (5), (6)) 3PTS | -party served with written statement/doc & wishes to cross witness/author may summon by serving SUMMONS TO WITNESS & attendance money on witness or author by personal service at least 10 DAYS before trial date -At same time, party shall serve a copy of summons to witness on all other parties -Proof of service is by affidavit of service (Form 8A) filed with court |
| What is form 18A? | Summons to witness |
| Trial judge may exclude Rule 18.02(1) evidence if … 6pts | -IRRELEVANT to any issue in action; -unduly REPETITIOUS of other evidence; -not admissible under any Prov/federal STATUTE i.e. Ontario/Canada Evidence Act -PRIVILEGED under common law of privilege, unless client waives privilege & waiver is informed, voluntary, & in writing -admit written statement/doc would be UNJUST/not agreeable to good conscience -written statement/doc relates to facts & opinions witness would not be permitted to testify IN PERSON |
| party who requires attendance of person in Ont (Rule 18.03) 2pts | -may serve person with summons to witness requiring him /her ATTEND at time & place stated -also PRODUCE at trial docs/other things in possession, control, or power relating to matters in question & specified |
| Summons to Witness (Rule 18.03) 3pts | -copy must be served at same time (at least 10 DAYS before trial) on every other party -Service & attendance money PROVEN by filing affidavit of service -Service on another party PROVEN by filing affidavit of service |
| According to Rule 18.03(6) if a witness is properly summoned they must | attend on specified date & remain in attendance until RELEASED by court |
| -If witness fails to attend/does not remain in attendance when summoned then? | warrant issued directing all police officers in Ont to apprehend & bring before court |
| What does a party served with signed written statement/other doc who wishes to cross-examine author have to do? | serve SUMMONS & attendance MONEY by PERSONAL service at least 10 DAYS before trial |
| Summons to Witness Required 3PTS | -ALWAYS SERVED on any person with material evidence in support of your client’s claim/defence when written statement not obtained -CONSIDER serving on author of a written statement/doc that has been served in accordance with Rule 18.02(1) if you have concerns about QUALITY & SUFFICIENCY of written statement -if you believe author has MATERIAL EVIDENCE to give not reflected in statement |
| Expert Witnesses 5PTS | -person who, because of EDUCATION, experience, specialization etc has knowledge about issue in action that court does not have -gives OPINION evidence about issues -Opinion =what expert witness THINKS, BELIEVES, OR INFERS with regard to facts/issues in dispute -opinion must be RELEVANT & help court understand issues -In Small Claims Court, may give evidence by way of SIGNED, WRITTEN STATEMENT pursuant to Rule 18.02 hearsay exception |
| Interviewing Witnesses 4PTS | -paralegal may seek info from ANY potential witness in proceeding including those appearing for opposing parties -be FAIR & HONOURABLE in dealing -IDENTIFY yourself & your client -Ensure they understand you are acting exclusively in your CLIENT’S INTEREST |
| Interviewing Witnesses Harassment 5pts | -has no OBLIGATION to speak to you. -If they tell you they do not want to talk to you, leave witness alone. You are not permitted to HARASS a witness -If person represented do not APPROACH/communicate/deal with person on matter -Or attempt to NEGOTIATE/compromise matter directly with person -EXCEPT through or with consent of legal practitioner |
| Exhibits 6pts | -Docs must be disclosed to all parties no later than 30 DAYS before trial -If using doc as evidence must be introduced as EXHIBIT during direct -When introducing exhibit SHOW doc to other parties/rep, ask the witness to IDENTIFY doc, question witness as to contents of doc that are material -When finished questions, GIVE doc to clerk -trial judge may wish to EXAMINE doc, or may simply order marked as exhibit -Maintain a LIST of exhibits as they are introduced |
| Objections 6pts | -used to draw court's attention to IMPROPER evidence/procedure. -should raise AS SOON AS other licensee finished speaking &before witness answers. -Do not raise unless you have REASONABLE grounds. Know what grounds are & state them -opposing party may make SUBMISSIONS. -Judge then makes ruling, sustaining/dismissing. -When judge has made ruling, do not get into a DEBATE. Thank judge & sit down. |
| Contents of Trial Book Plaintiff’s Paralegal 12 pts | -OPENING submissions -For ea witness on direct exam make ANNOTATIONS for intro of exhibits -NOTES from CROSS & issues for re-exam -notes of evidence during DIRECT examination of other side - ?s for cross of other side -CLOSING submissions -Submissions as to interest & COSTS -Draft BILL OF COSTS -LEGAL AUTHORITIES you intend to rely, copies for court & parties, relevant passages highlighted -Written statements/docs to be submitted as EXHIBITS in order of submission -list of OTHER PARTIES’ EXHIBITS in order of submission -DISCLOSURE by other parties for your reference |
| Contents of Trial Book Defendant’s Paralegal 12pts | -OPENING submissions -NOTES of evidence & issues arising out of direct of other side - ?s for cross & notes of re-exam -?s for direct with ANNOTATIONS for intro of exhibits -NOTES of evidence in cross & issues for re-exam -CLOSING submissions -Submissions as to interest & COSTS -Draft BILL OF COSTS -LEGAL AUTHORITIES , copies for court/ parties, relevant passages highlighted -Written statements/docs to be submitted as EXHIBITS in order of submission -list of OTHER PARTIES’ EXHIBITS in order of submission -DISCLOSURE by other parties for your reference |
| Trial Procedure | • When matter CALLED, parties take places at counsel tables • Paralegals rise and INTRO themselves • Judge may invite OPENING submissions |
| Order Excluding Witnesses 3pts | -If NON-PARTY WITNESSES in courtroom, judge should be asked to make order excluding witnesses -All non-party witnesses will be asked to LEAVE courtroom until called to give evidence -Prevents witnesses who have not yet taken stand from hearing & being INFLUENCED by others |
| Trial Procedure Plaintiff’s Evidence 6pts | -Plaintiff takes stand & SWORN/affirmed -DIRECT examination of plaintiff -CROSS-exam of plaintiff by defendant/other parties -RE-EXAM of plaintiff on new issues that arose during cross -SAME procedure for other witnesses summoned by plaintiff -CLOSE of plaintiff’s evidence |
| Trial Procedure Defendant’s Evidence 6pts | -Defendant takes stand & SWORN/affirmed -DIRECT exam of defendant -CROSS-exam of defendant by plaintiff/other parties -RE-EXAM of defendant on new issues that arose during cross -SAME procedure for other witnesses summoned by defendant -CLOSE of defendant’s evidence |
| Rule 18.02( 4) Plaintiff's witnesses who were summoned by other parties for purposes of cross with respect to written statements & docs | are subject to cross-examination and re-examination only. |
| Reply Evidence 3pts | • AFTER CLOSE of defendant’s evidence • intended to REBUT defendant’s direct exam of defendant • Defendant may respond |
| witness who gives evidence that supports your cause? | sympathetic witness |
| witness who gives evidence that supports an opposing party's cause? | unsympathetic witness |
| Communication with Witnesses Giving Evidence 2pts | • Subject to direction of tribunal, observe rules respecting communication with witnesses giving evidence • Paralegal Rule 4.03(1) |
| Closing Submissions 2pts | -When all evidence heard, judge may ask for CLOSING submissions from parties -PLAINTIFF makes closing submissions FIRST |
| To be persuasive, a party's closing submission should 4pts | -review ISSUES in dispute -SUMMARIZE EVIDENCE that supports party's claim/defence -refer to any applicable LAW, -arguments to why RELIEF party is seeking should be granted by court based on evidence and applicable law |
| When will judge ask parties for submissions as to costs? | After judgment |
| What do costs include? | -money amounts that court orders one party to pay other party -awarded in addition to any other relief (monetary or otherwise) |
| As a general rule why are costs awarded to successful party? | reimburse for reasonable representation fees & disbursements incurred by that party to conduct action |
| A costs award consists of | -representation fee (if represented) -amount for reasonable out-of-pocket expenses (disbursements) |
| What is maximum representation fee in a Small Claims Court action 2pts | -15% of amount claimed, unless court considers it necessary in interests of justice to penalize a party or a party’s representative for unreasonable behaviour in proceeding -(CJA s. 29) |
| Applicable regulations to assess disbursement costs: | -Kilometre Allowances -Small Claims Court—Fees and Allowances |
| Applicable rules for fees: 2pts | • 19.01(3): max $60.00 for service • 19.01(4): max $100.00 for prep of pleading |
| Submissions as to rep fees Rule 19.04(1) | -If successful party represented court may award party reasonable rep fee at trial or assessment hearing |
| What is the importance of a Rule 14 offer? (rule 14.07(1)(2)) 2pts | -Failure to accept offer to settle that falls within conditions set out in those rules has been deemed unreasonable behaviour by courts & triggers exception to limit for a rep fee in s. 29 of the CJA -If Rule 14.07 applies and the exception is triggered, maximum representation fee that can be awarded is 2 X 15% of the amount claimed (CJA, s. 29) |
| Compensation for Inconvenience & Expense (Rule 19.05) | • Court may order unsuccessful party to pay unrepresented successful party amount not exceeding $500.00 as compensation for inconvenience/expense |
| Penalty (Rule 19.06) 2pts | -If court is satisfied a party unduly complicated/PROLONGED action -or has otherwise acted UNREASONABLY, may order party pay amount as compensation to another party |
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