THIS EXAMINATION CONSISTS OF 9 PAGES (INCLUDING THIS COVER PAGE) PLEASE ENSURE THAT YOU HAVE A COMPLETE PAPER THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW FINAL EXAMINATION - DECEMBER 14,2015 LAW 469 Civil Procedure Section 1 Adjunct Professors Greenberg and Michaud TOTAL MARKS: 95 TIME ALLOWED: 3 HOURS........ 1U NOTE: 1. This is an open book examination. You may have any class materials including British Columbia Annual Practice 2. ANSWER ALL QUESTIONS. THIS EXAMINATION CONSISTS OF 12 QUESTIONS
Page 2 of 9 After completing law school and articles you have now obtained a position as an associate at a small litigation firm in Vancouver. Your firm has recently been approached by Michelle Puffy ( Senator Puffy ), a member of the Canadian Senate who lives in Vancouver, British Columbia, but was appointed as a Senator representing New Brunswick. Senator Puffy has been involved in a prolonged criminal trial held in Ottawa, Ontario. The trial involves charges against Senator Puffy of fraud, bribery and breach of trust relating to her living and travel expenses while serving as a Senator, as well as the repayment of those expenses which was actually funded by an advisor to Prime Minister Stephanie Sharper ( Sharper ) named Nigella Bright ( Bright ). During the criminal trial, Bright gave evidence and confirmed that she had given Senator Puffy a personal cheque for $90,000 to repay the living and travel expenses that had been identified by Sharper and Bright as questionable. On November 30, 2015, Senator Puffy was acquitted of all charges in the criminal action. On December 1, 2015, Senator Puffy contacted a senior partner at your firm, Andrea Clayton ( Clayton ) because Senator Puffy wishes to bring claims against the people whom she considers are responsible for false charges being brought against her in the first place. Senator Puffy met with Clayton and you to discuss her potential claims. Senator Puffy wants to claim against Sharper and Bright for spreading untruths about her resulting in the criminal charges. Senator Puffy also wants to claim against Crown counsel in the trial, Martha Holmes ( Holmes ) for wrongful prosecution. Additionally, Senator Puffy believes there was a conspiracy among Sharper, Bright and Holmes to have charges they all knew were false brought against her. Senator Puffy says that Sharper, Bright and Holmes all knew all along that her expenses were entirely legitimate. Sharper and Holmes both reside in Ottawa, Ontario. Bright has residences in three locations. In the winter, Bright splits her time living at a chalet in Whistler, British Columbia and at a beach house in Barbados. The rest of the year she resides in Toronto, Ontario. Clayton asks you to review a Notice of Civil Claim she has drafted with Senator Puffy named as the plaintiff and Sharper, Bright and Holmes named as the defendants. Clayton has pleaded claims against Sharper and Bright for the tort of injurious falsehood, against Holmes for the tort of malicious prosecution and against all three for the tort of conspiring to injure Senator Puffy.
Page 3 of 9 Answer j of the questions below. **NOTE: In each of your answers, make specific reference to any applicable legislation, Supreme Court Civil Rules (the Rules ), case law, ethical obligations and rules of conduct. ** 5 Marks 1. Clayton is satisfied with the Notice of Civil Claim after your review, and on December 8, 2015, asks you to have it filed and served on each of the named defendants. Clayton tells you that she knows Sharper will be at the Prime Minister s official residence at 24 Sussex Drive in Ottawa for the rest of December. She tells you that she assumes Holmes will be working in Ottawa for the foreseeable future, but she has no information about where in Ottawa Holmes lives. Clayton tells you that Senator Puffy s sources have found out that Bright is currently at her home in Barbados, but that she will be in Whistler from December 18, 2015 to January 1, 2016 when she will return to Barbados for the rest of January. Senator Puffy and Clayton want you to move the claim ahead as quickly as possible. Clayton asks you: (a) What must be done to effectively serve Sharper? (b) Would you be able to obtain an order to serve Holmes by mail at her Ottawa office since you do not know where Holmes lives? (c) What is the best manner and place to serve Bright and why? How do you respond to Clayton s questions? 6 Marks 2. You have now managed to properly serve each of the defendants. Sharper and Holmes were served in Ottawa on December 10, 2015. Bright was served in Barbados on December 11, 2015.
Page 4 of 9 On December 18, 2015, Clayton received a voicemail message from Benjamin Piven ( Piven ) a lawyer at a large Vancouver firm. Piven advised in his message that Bright had just sent the Notice of Civil Claim to him, but that Piven was going to be away on holidays from the next day until January 4, 2016, and would not have time to review the claim before then. By January 8, 2016, Clayton has heard nothing from Piven. Senator Puffy is insisting that Clayton take steps in the action to advance her claim. Clayton tells you to seek a default judgment against Bright as soon as possible and to advise what steps you plan to take so she can tell Senator Puffy what is happening. What do you tell Clayton you intend to do and why? 4 Marks 3. Assume that no default judgments have been taken against any party. Sharper, Bright and Holmes have each retained counsel and delivered filed Responses to Civil Claim. After reading Sharper and Bright s Responses to Civil Claim, Senator Puffy tells you that she forgot to instruct you to include Robert Nowak ( Nowak ), Sharper s Chief of Staff as a defendant for participating in the conspiracy. Senator Puffy tells you she does not currently know exactly what Nowak did to participate in the conspiracy, but she bets he was involved and expects that there is an email trail that will show his participation if you can get your hands on Sharper and Nowaic s correspondence. Senator Puffy asks you how, procedurally, you might be able to get Nowak into the action and whether you think you would be able to do so. How do you respond to Senator Puffy? 10 Marks 4. For various, reasons, the action is proceeding with only the originally named defendants, and without Nowak. You have now received lists of documents from each of the defendants in the action. Senator Puffy has reviewed the lists and complains that there should be a lot more documents included in the various defendants lists of documents. For example, Senator Puffy advises that she cannot assess Sharper s defence to the injurious falsehood claim pleaded in her Response to Civil Claim that she honestly believed that Senator Puffy s expenses were improper, without reviewing a confidential Senate report on expense
Page 5 of 9 claims that Senator Puffy knows was prepared for Sharper by Senator Girving Irstein ( Irstein ) but which does not appear on the list of documents. Senator Puffy notes that the Irstein report may be one of the documents included on Sharper s privileged portion of the list of documents, but she cannot tell because that section only has two documents which are described only as privileged document #1 and privileged document #2. Senator Puffy is also unhappy that there are no emails whatsoever on either of Sharper or Bright s list of documents. Senator Puffy knows that the two were constantly emailing each other and in the thousands of emails that are sure to exist, she believes there must be some emails that may relate in some way to Sharper and Bright s roles in Senator Puffy being charged. Finally, Senator Puffy desperately wants you to get an order for disclosure of all of the press briefmgs prepared for Sharper by Bright in respect of her expenses and her criminal trial. Senator Puffy thinks those press briefings will be a gold mine of information about what Sharper knew, which might be of use in the case and will be helpful for the public relations war being fought between Senator Puffy and Sharper in the local media. Senator Puffy asks you: (a) Whether there is a way to obtain disclosure from either Sharper or Irstein of the Irstein report, and if so how you would do it? (b) Whether the description of the privileged documents on Sharper s list of documents is sufficient and what, if anything, you can do to determine whether the claim of privilege is appropriate or not? (c) Whether you can obtain disclosure from Sharper or Bright of their email correspondence generally, and if so how you would do it? (d) Whether you can obtain disclosure from Sharper or Bright of the press briefings to assist in preparation of the case and in the media battle, and if so how you would do it? How do you respond to Senator Puffy? 10 Marks 5. It is January 28, 2016 and Clayton has just returned from a three week trip to Mexico. She barges into your office in a panic waiving a Notice to Admit delivered by Sharper that was left on her desk by her administrative
Page 6 of 9 assistant before she left for Mexico. She tells you that because her assistant did not bring it to her attention the Notice to Admit became buried and she just found it. Clayton asks you to deal with her assistant s slip up by doing whatever you can do to deal with the Notice. Clayton tells you to speak with her assistant to get the facts you need. The assistant confirms that the document was properly served by ordinary service 24 days ago and that Senator Puffy has not been provided a copy yet. The assistant tells you that Clayton has given him details regarding the merits of Senator Puffy s action. (a) What are your options for getting the admissions withdrawn? (b) Assume that Clayton asks you to bring an application to have the admissions set aside, what is the test you will have to meet and what facts can you rely on? (c) Clayton tells you to prepare an affidavit in support of your application to withdraw the admissions. You are considering whether the evidence should be sworn by Clayton or her assistant. Who would be the appropriate person to swear the affidavit in support of the order you seek and why? Would your answer be different if the order sought was a final order? 9 Marks 6. You want to set down your application to withdraw admissions. You want it to be set for Friday the 12 th (assume there are no holidays). Monday Tuesday Wednesday Thursday Friday Saturday Sunday 1 2 3 4 5 6 7 8 9 10 11 12 13 14 What are the steps you must take to bring the application, please answer the following: (a) What documents must you file with the registry? (b) On whom must you serve the application materials mentioned in (a)? (c) When is the latest you can serve your materials (use the calendar
Page 7 of 9 above)? (d) At what time must the application be set for and in what venue will it be heard? 5 Marks 7. Your application to withdraw admissions was successful. Master Willingdon granted it on the spot stating that the test for withdrawing admissions was clearly met. He added that such an application should not have been opposed in his view and he refused to order costs of the application as sought by Sharper. A month goes by and you receive a letter from counsel for Sharper stating that they intend to appeal the order of Master Willingdon, including the ruling on costs and to request a re hearing. Clayton asks you: (a) if the appeal is timely; (b) if the appeal is timely, in what circumstances would a re-hearing be appropriate; and (c) what is the appropriate standard of review given the nature of the order? What do you tell Clayton? 7 Marks 8. After reviewing the documents disclosed by Holmes, Clayton advises Senator Puffy that there is not much chance of succeeding on the malicious prosecution claim. Senator Puffy still believes that Holmes was part of a conspiracy against her, but decides to try to settle the claim against Holmes and instructs you to make an informal offer to settle. The offer Senator Puffy wants you to extend is that Senator Puffy will provide Holmes with a full release of all claims against her in exchange for Holmes agreeing to cooperate as a witness at trial, including that Holmes will testify confirming Senator Puffy s firm belief that she did conspire with Sharper and Bright to bring false charges. Senator Puffy tells you that she thinks Holmes would accept this offer if you presented it to her and explained why it is favourable to her. Senator Puffy also tells you that she believes Holmes s lawyer just wants the fees for this trial and would improperly advise Holmes against the settlement. Senator Puffy instructs you to deliver an informal offer in writing directly to Holmes, and then to call Holmes to discuss the offer with her as soon as possible after it is received and before her lawyer can talk her out of
Page 8 of 9 accepting the offer. What do you advise Senator Puffy in response to her suggestions? 5 Marks 9. Assume that the parties do not reach a settlement as a result of the offer referenced in question 8. The lawyer for Holmes has now delivered to you a formal settlement offer in which Holmes will agree to waive any claim of costs she has against Senator Puffy if Senator Puffy agrees to immediately discontinue her claim against Holmes. The offer asserts that Senator Puffy s claim against Holmes has no merit. Clayton asks you to explain to Senator Puffy what would be the possible downside to rejecting the offer and continuing the claims given that Senator Puffy still hopes that evidence linking Holmes to a conspiracy will surface at trial. Clayton specifically tells you to make sure Senator Puffy understands how court ordered costs work. What should you tell Senator Puffy with respect to: (a) The default rule regarding court ordered costs, including explaining who pays, how much and when? (b) The possible cost consequence of turning down the offer if Holmes is ultimately proved correct? 8 Marks 10. The action still has not settled. Senator Puffy fmds that the litigation is not progressing fast enough and wants to have the matter proceed to trial as soon as possible. Clayton has tried to set the matter down for a 2 week trial but the next available trial dates are 2 years from now. Clayton estimates that if the claim is successful, Senator Puffy could be awarded damages in the approximate range of $100,000, more or less. She asks you to look at the Rules and prepare a memo addressing each of the following: (a) Whether the matter can be subject to the application of the Fast Track Rule and explain why or why not? (b) Assuming the Fast Track Rule can apply, what must be done procedurally to have the Fast Track Rule apply to the action? (c) Describe the key distinguishing procedural features of the Fast Track Rule.
Page 9 of 9 6 Marks 11. Clayton has managed to find a key witness for trial who will testify that Sharper and Bright arranged to leak to the press living and travel expenses of Senator Puffy, but without disclosing she had actually paid for these personally, in order to make her look guilty of fraud. This witness, Paul Johnson ( Johnson ), is a former aid to Sharper who worked closely with Bright at the material time and has recently been named as an ambassador to the Republic of Congo. Johnson is set to leave Canada in 6 months and will be travelling to remote areas for the first 3 months of his appointment on sensitive diplomatic missions. Assume that the trial is set for 8 months from now. Clayton wants to know if it is possible to obtain an order allowing for the recording of the testimony of Johnson in advance of trial. (a) What do you tell Clayton in answer to her question? (b) Discuss and apply the factors that would be relevant to an application for such an order. (c) Clayton asks you whether there is a possible alternative way to have Johnson testify. What can you suggest? 20 Marks 12. Document disclosure is a significant aspect of the civil litigation process. Please discuss: (a) whether you believe that our current approach to document disclosure serves the underlying objects of the Rules as described in Rule 1-3, and explain why or why not; and (b) whether you would recommend any changes be made to the Rules governing document disclosure to better achieve the objectives set out in Rule 1-3, and explain why or why not. END OF EXAMINATION