Index

July 28 , 2022

Checklist of Powerful Procedural Principles

March 22 , 2022

Repeating a Cross-Examination Question

February 7 , 2022

Non-Prosecution Excuses

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021

Urgent!

December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the
Handbook

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

Welcome

Côté’s Commentaries

© 2016-2022 J.E. Côté

CHECKLIST OF POWERFUL PROCEDURAL PRINCIPLES

You can’t boil all of civil procedure down to a handful of axioms or rules. But it is not merely a maze of minor rules and regulations, tangled together like a giant cat’s cradle.

Sometimes it helps you if you review the important principles. Conversely, sometimes when you prepare for a hearing, you seem to have too many possible arguments. Must you discard some? Can you combine some? Which matter most?

To start you thinking along those lines, or to help you prune or graft multiple arguments, here are 9 important principles of procedure.

  1. Natural justice is vital. Especially audi alteram partem. It gives two rights: to know the evidence and arguments to which will be urged against us, and to be able to meet them with our own evidence, law, and arguments.
  2. All clients have a right to choose a lawyer to represent them, and to communicate in secrecy back and forth with that lawyer, to get and give informed reliable legal advice, and to prepare for #1.
  3. Bargains to settle or compromise part or all of a dispute or lawsuit, should be enforced. Indeed, courts encourage such agreements.
  4. In a pre-trial hearing about procedure, the court need not and should not go very far into weighing the legal or factual merits of the lawsuit. Procedure and remedies given before trial should allow for the possibility that either side may later win the lawsuit.
  5. Often an interlocutory dispute should not give a total victory to either side on that point. Often it is better for the court to put terms and conditions on one or both parties. Such terms and conditions need not satisfy the rules for freestanding interlocutory relief. For example, costs, security for costs, deadlines, or restrictions on evidence, may be a condition of giving or withholding interlocutory relief.
  6. A superior court is presumed to have jurisdiction over everything, and it takes clear words in a statute to repeal that.
  7. When a superior court has jurisdiction, its orders are never nullities, though the same court, or an appeal court, may later cancel such orders.
  8. A clear conflict of evidence about some fact, on an important point which could well be decisive at trial, needs live evidence to decide it, except in unusual circumstances.
  9. Even in interlocutory matters, facts must be shown by legally-admissible evidence, such as affidavits, or statutory certificates or copies. Statements by counsel are not evidence, unless about agreed facts or making admissions against the interest of the party whose counsel makes them. Counsel who state “facts” to the court which are not supported by evidence, commit serious misconduct.

 

– Hon. J.E. Côté

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.