NCA Legal Research and Writing in Canadian Context 2 — Questions and Answers
Question 1: When drafting a legal opinion letter in Canada, the lawyer should ensure the letter:
- Contains a guarantee of outcome if the client follows the advice
- Clearly identifies the question addressed, the facts assumed, the applicable law, the analysis, and the opinion, along with appropriate qualifications and limitations (Correct answer)
- Is addressed to the court and opposing counsel simultaneously
- Contains no qualifications or caveats so as not to undermine the client's confidence
Correct answer: Clearly identifies the question addressed, the facts assumed, the applicable law, the analysis, and the opinion, along with appropriate qualifications and limitations
A legal opinion letter must be precise about: (1) the question(s) being addressed; (2) the facts on which the opinion is based; (3) relevant law; (4) the analysis; (5) the opinion itself; and (6) qualifications (e.g., reliance on facts provided, jurisdiction, date). It must not guarantee outcomes.
Question 2: The Interpretation Act, RSC 1985, c. I-21 provides general rules for interpreting federal Canadian statutes. Which rule does it provide for remedying ambiguity?
- Statutes must always be interpreted in favour of the Crown
- Every enactment shall be deemed remedial and shall be given such fair, large, and liberal interpretation as best ensures the attainment of its objects (Correct answer)
- Ambiguous statutes are void for uncertainty
- Technical legal terms must be interpreted in their common everyday meaning
Correct answer: Every enactment shall be deemed remedial and shall be given such fair, large, and liberal interpretation as best ensures the attainment of its objects
Section 12 of the federal Interpretation Act requires that every enactment be deemed remedial and given a 'fair, large, and liberal construction and interpretation as best ensures the attainment of its objects.' This codifies the modern purposive approach to statutory interpretation.
Question 3: The 'modern principle' of statutory interpretation in Canada, as described by E.A. Driedger and adopted by the SCC, holds that:
- Statutes must be read strictly according to their plain text
- The words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (Correct answer)
- Interpretation must be guided by the legislative history above all other considerations
- When the text is clear, courts should not inquire into purpose
Correct answer: The words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament
Driedger's modern principle (adopted in Rizzo & Rizzo Shoes [1998] SCC and consistently applied) requires: reading the words in context, in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act, and the legislative intention. It rejects both strict textualism and unconstrained purposivism.
Question 4: In a Canadian court proceeding, the rule in Browne v. Dunn (1893) requires that:
- Expert witnesses must submit written reports before testifying
- If a party intends to contradict a witness's evidence or suggest the witness is lying, the opposing counsel must put the contradicting material to the witness during cross-examination (Correct answer)
- Witnesses cannot be asked leading questions during examination-in-chief
- Cross-examination must conclude within the same court day it begins
Correct answer: If a party intends to contradict a witness's evidence or suggest the witness is lying, the opposing counsel must put the contradicting material to the witness during cross-examination
The rule in Browne v. Dunn (adopted across Canadian jurisdictions) requires that a party who intends to challenge a witness's credibility or contradict their evidence must put the contradicting material to the witness during cross-examination. Failure to do so may preclude calling contradicting evidence or inviting an adverse inference.
Question 5: In Ontario civil proceedings, a party must comply with rule 29.1 of the Rules of Civil Procedure regarding the discovery plan. What does this require?
- Parties must produce all documents within 30 days of the close of pleadings
- Before examinations for discovery, parties must agree on a discovery plan that addresses the scope of documentary discovery, timing, and conduct of examinations (Correct answer)
- All parties must retain an e-discovery specialist
- Discovery plans must be approved by the court before proceeding
Correct answer: Before examinations for discovery, parties must agree on a discovery plan that addresses the scope of documentary discovery, timing, and conduct of examinations
Rule 29.1 of the Ontario Rules of Civil Procedure requires parties to agree on a discovery plan before examinations for discovery, addressing: documents to be produced, electronic discovery parameters, timing of productions, and how oral discoveries will be conducted. It promotes proportionality and cooperation.
Question 6: Which writing principle is most important when preparing a factum or legal brief for a Canadian appellate court?
- Including as many cases as possible to demonstrate thorough research
- Structuring the argument logically with clear headings, using precise and plain language, and addressing the standard of review as the threshold issue (Correct answer)
- Using Latin maxims extensively to demonstrate legal expertise
- Avoiding footnotes to maintain readability
Correct answer: Structuring the argument logically with clear headings, using precise and plain language, and addressing the standard of review as the threshold issue
Effective appellate advocacy requires: a clear logical structure with headings; addressing the standard of review first (as it frames the entire analysis); precise and plain language; focused citation of key authorities (quality over quantity); and clear connection between law and facts. Excessive case citation without analysis is a common weakness.
NCA Legal Research and Writing in Canadian Context 2
When drafting a legal opinion letter in Canada, the lawyer should ensure the letter: