Trials and Evidence

Pregunta	Respuesta
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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