Civil Evidence Flashcards
Purpose of Crim Justice System
● To determine if crime is proven
● To protect individual liberty against state power
Purposes of Civil justice system
● To regulate relations btwn private parties
● To ensure that private disputes are resolved in an efficient/timely fashion but also fairly
● Costs
○ Final costs - judge decides
○ Interim costs - enforcement mechanism to keep parties efficient.
● Parties should always be giving thought to settlement throughout process of civil action
Material issues in crim vs civil pleadings
● Criminal / Pleadings (e.g. indictments and summary informations).
○ Simpler than civil.
○ There are often criminal pre-trial conferences to narrow down contested issues, but courts are often reluctant to exclude evidence that is relevant either to a substantive criminal issue or to credibility.
○ Particularly the case where the evidence may be relevant to a defence.
● Civil / Pleadings
○ Often expansive/sprawling.
○ Pleadings sets out what each party undertakes to prove should matters proceed to trial. Could lead to trials w big expense/time.
○ Civil justice system contains a number of mechanisms to encourage the parties to narrow down the material issues that will be contested.
■ Pre-trial conferences, Admissions, Examinations for Discovery.
Probative value vs prejudicial effect in crim vs civil evidence
Probative Value vs Prejudicial Effect
● Criminal / Criminal proceedings
○ Concerned with issues such as confusion, timeliness, delay, and fair notice between the Crown and the defence,
○ Treatment of ‘prejudicial effect’ has a strong focus on the potential of the trier of fact to draw a dangerous inference against the accused.
● Civil Justice / Prejudicial effect analysis
○ Focused on issues such as avoiding confusion, avoiding delay, ensuring timeliness and efficiency, and ensuring fair notice to both parties.
Objectives of crim trial process
○ Takes seriously the right of an accused to assert his or liberty against the state.
○ If an accused is determined to go to trial, the legal system does what it can to facilitate this.
○ The accused has a constitutional right to counsel.
○ The state carries the budget for the Crown Prosecutors, and pays for Legal Aid and other clinical services for criminal accuseds.
Objectives of civil trial process
○ Does not engage the same concerns as crim, since it is overseeing private disputes for the most part.
○ Encourages the parties to reach a negotiated settlement.
■ Prefers this to routine civil trials, which can consume time and resources in comparison to a settlement.
■ The civil justice system therefore has additional rules of evidence designed to encourage settlement. (see Sample Release and Waiver)
○ The expenses for litigation fall on the parties themselves. (rarely in the best interests of civil parties to always go full steam ahead with a trial)
○ Costs used to discourage behaviours against efficiency
Describe the litigation privilege
● The Litigation Privilege / Blank v. Canada
○ Covers situations where an investigator for a civil party interviews prospective witnesses.
○ Temporary privilege over the interviews/documents, etc. for the limited purpose of enjoying a ‘zone of privacy’ to prepare for litigation.
○ The identity of witnesses cannot be kept privileged, but their signed statements provided to investigators can.
○ Requires an adversarial process
○ The dominant purpose must be for anticipated use in litigation
Describe the negotiation settlement privilege
● Negotiation Settlement Privilege
○ Precludes offers to settle from being admitted as evidence of liability. Prerequisites:
■ 1. A litigious dispute in existence or within contemplation
■ 2. The communication must be made with the express or implied contention that it would not be disclosed to the court in the event negotiations failed.
■ 3. The purpose of the communication must be to attempt to affect a settlement.
Recognized Exceptions:
■ 1. Whether the communications have resulted in an agreement
■ 2. Where it is relevant to whether the agreement should be set aside on grounds of misrepresentation, fraud, or undue influence
■ 3. Where one party makes a clear statement to the other party, and intends the other party to act on it. > Estoppel
■ 4. Where excluding the communication as evidence acts as a cloak for fraud, blackmail, or another impropriety
■ 5.In order to explain delay or seeming acquiescence in responding to an application to strike out a proceeding for want of prosecution
■ 6. Relevant to whether the claimant acted reasonably to mitigate his or her losses and reach a reasonable conclusion through negotiations
● If dfd delayed the end unreasonably by not accepting the settlement offer Judge will award costs against them. The reverse could also be true.
■ 7.An offer that is expressly made “without prejudice except as to costs”
Describe disclosure requirements in crim vs civil
● Criminal / Disclosure is tipped in favour of the defence. Crown has constitutional obligations to disclose incriminating evidence, exculpatory evidence, and to obtain evidence that they are aware may be potentially relevant.
○ Defence is not under an obligation of reciprocal disclosure, subject to exceptions:
■ Expert Evidence
■ Constitutional applications
■ Alibi
● Civil / Strong emphasis on fair play and mutual disclosure.
○ Documents are big driver
○ Rules of service, meant to ensure that each side has notice of motions, allegations, and supporting evidence, of the other side.
○ Examinations for Discovery, each side gets to view the other side’s case.
○ Costs used to enforce compliance
Describe areas of note in civil evidence law (list)
- Material Issues
- Probative Value vs Prejudicial Effect
- Trials/Objectives of each process
- Disclosure
- Interim use of Affidavit Evidence
- Documents as Prima Facie Proof of their Contents
- Interim Preservation of Evidence
- Discovery
What are some documents that are prima facie proof of their contents (civil)
Contracts
○ Parole Evidence Rule: Contract presumed to contain the entirety of agmt. It is deemed to reflect the intentions of parties→ no extrinsic evidence outside the ‘four corners’ allowed
○ Exceptions:
■ Fraud, Duress, or Illegality
■ Lack of Capacity
■ A separate oral agreement that sets out a Condition Precedent to the Contract.
■ A separate oral agreement that modifies or rescinds the contract, so long as the oral agreement is not invalid under a statute of frauds
■ Customs and Usages may be annexed to a contract, unless they are repugnant or inconsistent with the express terms of the contract.
■ Any oral agreement that covers matters on which the written contract is silent, and in circumstances in which the court infers that the parties did intend for the written contract to contain the entirety of the agreement.
Wills
○ Testamentary Capacity - testator presumed to have capacity to have made a valid will, so will itself is valid.
○ Presumption operates unless and until a party shows an evidentiary basis that there is a legitimate issue as to testamentary capacity. This can occur when there is evidence of one of these three:
■ 1) that raises concerns about the circumstances in which the will was made
■ 2) of circumstances that raise concerns about the capacity of the testator
■ 3) showing that the will of the testator was overborne by coercion and fraud
○ If this challenge succeeds, the onus is reversed. The propounder of the will must show testamentary capacity on BOP
When might there be a legitimate issue with testamentary capacity re:wills
■ 1) that raises concerns about the circumstances in which the will was made
■ 2) of circumstances that raise concerns about the capacity of the testator
■ 3) showing that the will of the testator was overborne by coercion and fraud
○ If this challenge succeeds, the onus is reversed. The propounder of the will must show testamentary capacity on BOP
When might the parole evidence rule not apply to a contract
○ Parole Evidence Rule: Contract presumed to contain the entirety of agmt. It is deemed to reflect the intentions of parties→ no extrinsic evidence outside the ‘four corners’ allowed
○ Exceptions:
■ Fraud, Duress, or Illegality
■ Lack of Capacity
■ A separate oral agreement that sets out a Condition Precedent to the Contract.
■ A separate oral agreement that modifies or rescinds the contract, so long as the oral agreement is not invalid under a statute of frauds
■ Customs and Usages may be annexed to a contract, unless they are repugnant or inconsistent with the express terms of the contract.
■ Any oral agreement that covers matters on which the written contract is silent, and in circumstances in which the court infers that the parties did intend for the written contract to contain the entirety of the agreement.
How might a plf prevent the destruction of evidence? (Interim preservation of evidence - civil)
● The Anton Piller order, made a part of Canadian law by the SCC in Celanese Canada Inc. v. Murray Demolition Corp. (2006).
○ The Plaintiff must show a strong prima facie case.
○ The damage to the plaintiff by the Defendant’s misconduct, actual or potential, must be very serious.
○ There must be convincing evidence that the Defendant has in its possession incriminating documents or things
○ The Plaintiff must show that there is a real possibility that the Defendant may destroy such material before the discovery process can do its work.
● The order is carried out by a court-appointed Independent Supervising Solicitor. who must:
○ Act as a neutral officer of the court
○ Explain the court’s order to the defendant
○ Supervise the search for and seizure of evidence from the defendant
○ Objectively report to the Court
○ Aid the Court and counsel for all parties in technical matters.
● Supervising Solicitor comes to workplace, takes control of documents. Can be very disruptive. Happens when rival businesses suing each other, Info can be sensitive so this is a strong measure but it is hard to get.
What is discovery process
Civil
● The broader pre-trial phase whereby each party is allowed to discover the other side’s case
○ Subpoenas
○ Disclosure of documents > Affidavit of Documents
○ Examinations for Discovery
■ Procedure before trial that is held outside the Court.
■ The parties, witnesses, and lawyers, but not a judge, meet at an agreed to location.
■ The witnesses swear oaths to tell the truth, testify, and answer questions put to them by lawyers on cross-examination.
● Can examine your own witness w non leading questions and can C.E. the other side witnesses.
○ Evidentiary objection? Theres no judge. Some lawyers will say “ i dont think that is a valid objective because…..” and if the lawyer for the other side is stubborn, you might have to leave it alone and bring an application to the master in chambers to ask for a ruling on whether the question should be allowed to proceed. Youd likely get costs.
■ A court reporter records the testimony in a transcript..
