NCA Legal Research and Writing in Canadian Context 4 — Questions and Answers
Question 1: In Ontario, which document initiates a civil lawsuit and what information must it contain?
- A statement of claim, which must set out the nature of the claim, the relief sought, and the material facts on which the claim is based (Correct answer)
- A notice of motion filed with the court registrar listing the legal issues
- A letter of demand sent to the defendant and filed with the court
- An affidavit sworn by the plaintiff detailing the facts of the dispute
Correct answer: A statement of claim, which must set out the nature of the claim, the relief sought, and the material facts on which the claim is based
In Ontario civil proceedings, a lawsuit is commenced by issuing a statement of claim (Rule 14, Rules of Civil Procedure). It must contain: the relief sought, a concise statement of the material facts relied on, and an indication that the action is against each defendant. Conclusions of law and evidence are not included.
Question 2: What is the significance of obtaining a 'certificate of pending litigation' (CPL) in a real estate dispute in Ontario?
- It permits the claimant to occupy the disputed property pending trial
- It registers notice of the litigation on the title to the property, preventing the registered owner from conveying clear title to a third party pending the outcome (Correct answer)
- It automatically freezes all financial accounts of the property owner
- It extends the limitation period for the underlying claim
Correct answer: It registers notice of the litigation on the title to the property, preventing the registered owner from conveying clear title to a third party pending the outcome
A certificate of pending litigation (formerly lis pendens) under s. 103 of the Courts of Justice Act is registered on title to give notice of a claim to an interest in land. It prevents the owner from conveying the property free of the claimant's interest until the litigation is resolved, protecting the claimant's position.
Question 3: In drafting a commercial contract governed by Ontario law, which clause determines how disputes arising under the contract will be resolved and in which forum?
- The 'boilerplate' clause at the end of the contract
- The dispute resolution clause, which may specify litigation in a particular court, arbitration, or mediation before arbitration (Correct answer)
- The governing law clause, which selects the applicable law
- The representations and warranties clause
Correct answer: The dispute resolution clause, which may specify litigation in a particular court, arbitration, or mediation before arbitration
The dispute resolution clause specifies the mechanism and forum for resolving disputes—it may require mediation, arbitration (binding), or court litigation, and may specify a jurisdiction (e.g., Ontario courts). This is distinct from the governing law clause (which law applies) and the choice of forum clause (which court).
Question 4: The Supreme Court of Canada's decision in Hryniak v. Mauldin [2014] changed the law of summary judgment in Ontario. What was the key change?
- Summary judgment was eliminated in favour of full trials in all cases
- The Court adopted a broader test for summary judgment, allowing judges to weigh evidence, draw reasonable inferences, and resolve credibility issues if doing so creates a fair and just process and achieves a just result (Correct answer)
- The Court required all civil cases to go through mandatory mediation before summary judgment could be sought
- The Court restricted summary judgment to cases where the claim amount is under $25,000
Correct answer: The Court adopted a broader test for summary judgment, allowing judges to weigh evidence, draw reasonable inferences, and resolve credibility issues if doing so creates a fair and just process and achieves a just result
Hryniak v. Mauldin [2014] revolutionized summary judgment in Ontario. The SCC rejected the 'full appreciation' test and held that a judge can grant summary judgment if there is no genuine issue requiring a trial—including through hearing oral evidence, drawing inferences, and making credibility findings if proportionate to the case.
Question 5: Under the Ontario Rules of Civil Procedure, what is an 'undertaking' given at an examination for discovery, and what obligation does it create?
- A formal promise to pay the opposing party's legal costs if the claim fails
- A promise given by counsel to provide additional information or documents after the examination; it is binding and must be fulfilled by the deadline set or agreed upon (Correct answer)
- An agreement to settle the proceeding that is binding on the parties
- A promise to appear at trial on a specified date
Correct answer: A promise given by counsel to provide additional information or documents after the examination; it is binding and must be fulfilled by the deadline set or agreed upon
At examinations for discovery, counsel frequently undertake to provide answers to questions the witness cannot answer at the time, to produce additional documents, or to obtain information. Undertakings are binding on counsel personally and on the party, and must be fulfilled within the agreed time.
Question 6: A Canadian court uses 'judicial notice' to accept a fact without requiring evidence. Which of the following facts could a Canadian court take judicial notice of?
- That a specific company was profitable in a particular year
- That Canada's federal election day is the third Monday in October (Correct answer)
- That a specific witness was present at a particular location on a given date
- That a particular drug causes a specific medical reaction in every patient
Correct answer: That Canada's federal election day is the third Monday in October
Judicial notice applies to facts that are so notorious or generally accepted that proof is unnecessary (R v. Find [2001]). The scheduled federal election day is a matter of public knowledge under the Canada Elections Act. The other options require proof—they are specific disputed facts not susceptible to judicial notice.
NCA Legal Research and Writing in Canadian Context 4
In Ontario, which document initiates a civil lawsuit and what information must it contain?