Preparing for Trial and Post-Trial Issues Presented by: Dena Varah Location: The Law Society of Upper Canada Date: October 5, 2016

Preparing for Trial It is worthwhile having a pretrial checklist to assist you in all of the steps that need to be taken during this busy time. I have considered some important topics in this presentation, but it is by no means exhaustive.

Notices Request to Admit Rule 51.02: A party may at any time, by serving a request to admit (Form 51A), request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document. A copy of any document mentioned in the request to admit shall, where practicable, be served with the request, unless a copy is already in the possession of the other party.

Ask yourself what the purpose of the request to admit is: Notices Ensure that requests to admit are served at least 20 days before trial. Ask yourself what the purpose of the request to admit is: Truth of facts or authenticity of documents or both? Authenticity of documents is not the same as the documents being admissible for the truth of their contents. The truth of controversial facts will likely be denied.

Where no response it is a deemed admission (Rule 51.03(2)). Notices Make sure that you respond to the other party’s request to admit within 20 days (Rule 51.03(1)). Where no response it is a deemed admission (Rule 51.03(2)). Are you denying the truth of a fact or the authenticity of a document or refusing to admit the truth of a fact or authenticity of a document? (Rule 51.03(3)). Denial does not need a reason, but a refusal does (De Naray v. Gainers Inc. (1997), 17 C.P.C. (4th) 396 (Ont. Master)).

Notices Evidence Act Business records are an exception to the rule that all documents must be proven in order to be admissible. Party has to provide at least seven days notice of intention to tender business records (Section 35(3).

Notices In this section, “business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; (“enterprise”) “record” includes any information that is recorded or stored by means of any device. (“document”) R.S.O. 1990, c. E.23, s. 35 (1). (2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. R.S.O. 1990, c. E.23, s. 35 (2).

Notices Ensure that the record is actually a business record made in the “usual and ordinary course” of business. Examples of business records include accounting ledgers, nursing notes, Board minutes and Resolutions and financial statements. Business records do not include handwritten notes taken at a meeting, emails or letters.

Notice to Introduce Evidence of Practitioners (s. 52). Notices Notice to Introduce Evidence of Practitioners (s. 52). (1) In this section, “practitioner” means, (a) a member of a College as defined in subsection 1 (1) of the Regulated Health Professions Act, 1991, (b) a drugless practitioner registered under the Drugless Practitioners Act, (c) a person licensed or registered to practise in another part of Canada under an Act that is similar to an Act referred to in clause (a) or (b). R.S.O. 1990, c. E.23, s. 52 (1); 1998, c. 18, Sched. G, s. 50.

Notices (2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action. R.S.O. 1990, c. E.23, s. 52 (2). This Section becomes relevant in medical cases where the plaintiff has seen various physicians who generate reports for trial, but calling each physician would be both expensive and unnecessary.

Leave of court to file a report is necessary. Notices Generally a party is put to election of either filing reports or calling the physician, not both. It can be a matter of judicial discretion in certain cases. Leave of court to file a report is necessary. Expert must be available for cross-examination. This DOES NOT include reports generated by expert witnesses to comment on standard of care or causation.

Consider carefully what a Joint Document Brief represents: Document Briefs It is often possible to short-circuit evidentiary issues by having an agreement on a Joint Document Brief. Consider carefully what a Joint Document Brief represents: - Does it mean that all of the documents are considered authentic but not necessarily admissible? - Does it mean that all documents therein are admissible for the truth of their contents?

Document Briefs It is important to have these discussions with counsel before attending in court as this will often be the first question asked by the Judge. Ask yourself if there is any basis or reason to challenge the authenticity of any documents.

Document Briefs Question whether the admissibility of the documents should be challenged. i.e. Is it important that you have the author of a document called as a witness? Try to complete a Joint Document Brief as early as possible in order that you may use those Briefs to prepare witnesses and to prepare yourself for trial.

Preparation of Witnesses for Trial A broad topic that could warrant its own presentation. Generally, try to have initial preparation meetings with important witnesses considerably in advance of trial (at least one to two months before). Explain the trial process to witnesses, many of whom are not familiar with it. Explain the unpredictability of trial timing to all witnesses.

Preparation of Witnesses for Trial Provide witnesses with all documents that they will be required to review (including those likely to be raised in cross-examination). Any witnesses who were examined for Discovery must carefully review their Discovery evidence.

Preparation of Witnesses for Trial Run through Examination in Chief more than once and amend questions based on witness responses. Raise possible topics of cross-examination. If possible, meet witnesses the night before trial to answer any further questions/address concerns. If witness is not a party or an expert, remember limitations imposed by any order excluding witnesses.

Demonstrative Evidence Will a picture of what your witnesses are testifying to be helpful to a Judge or Jury? The answer in most complicated matters is yes. Usually worth conferring with opposing counsel and indicating that your expert or witness will be introducing a demonstrative aid. Ask counsel if there are any objections.

Demonstrative Evidence If at all possible, ensure that the demonstrative aid is uncontroversial. Take from authoritative source if possible. For example if you need to explain the anatomy of the heart, take a diagram from an accepted medical text. If the diagram is to be blown up, ensure that your witness has a pointer of some sort to indicate areas of interest on the diagram.

Demonstrative Evidence If the diagram is to be on regularly sized pieces of paper, ensure that there are enough copies for the Judge, Jury, opposing counsel and reporter. Remember to make the evidence an exhibit at trial.

Using Literature with Expert Witnesses Literature can be used to buttress your experts’ opinion or to weaken the opinion of your opponent's experts. Ask your experts if they can do a literature search to assist you in finding relevant articles or textbooks. Ensure that literature is from an authoritative source (for example, peer-reviewed journals).

Using Literature with Expert Witnesses Generally if your expert is using literature to support his or her opinion, it should be included in his or her expert report. Literature that is used to cross-examine does not need to be provided to opposing counsel before the cross-examination (and it shouldn’t be). When cross-examining with literature, you must have the expert acknowledge that the literature is from an authoritative source.

Using Literature with Expert Witnesses If the expert will not acknowledge that, you cannot cross-examine on the literature. Ensure that the literature is on topic, contradicts the opposing expert and supports both your expert’s opinion and your theory of the case.

Costs The successful party will claim costs pursuant to Rule 57, Rules of Civil Procedure In most cases, the successful party will be claiming partial indemnity costs A party can claim substantial indemnity costs from the time of an Offer to Settle, if they were successful in beating the Offer to Settle

Party claiming costs must submit a costs outline, which is form 57 B Costs, continued Substantial indemnity costs is defined by Rule 1.03(1) as 1.5 times the amount of partial indemnity costs There are other situations in which the successful party can claim substantial indemnity costs, including where allegations of fraud were not proven Party claiming costs must submit a costs outline, which is form 57 B The costs outline will include a brief description of the fee items, lawyers and others involved, the hours spent, the partial indemnity rate and the actual rate being charged to the client

Costs continued In deciding the quantum of costs, the award must be fair and reasonable in all circumstances, with due consideration for the parties’ reasonable expectations Reference: Boucher v. Public Accountants’ Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.) The factors for consideration and for discretion in awarding costs are set out in Rule 57.01

Preparation of formal orders: After Trial Preparation of formal orders: It is quite easy after receiving a trial decision to forget that a judgment is required. Generally the party who has succeeded will prepare the formal judgment. If costs submissions are forthcoming, it is sometimes worth delaying the formal judgment until costs can be included.

Obtain approval as to form and content from opposing counsel. After Trial Obtain approval as to form and content from opposing counsel. Have it signed and entered by the Judge.

Preserving Appeal Rights You lost (it happens to all of us). Does your client wish to appeal? Question of appeal is often a difficult one - are there legal issues, is it worth the additional expense, what are your chances of success, etc. Assuming you do want to appeal, there is an appeal as of right from a final order of the court.

Preserving Appeal Rights You have 30 days to appeal from the time the decision is released (even if you don’t have a judgment issued or entered) (Rule 61.04(1)). Leave is required for appeal of cost orders. Leave to appeal motions must be filed within 15 days after the making of the order or decision. While matters are being appealed monetary judgments are stayed.

Thank You.