Pretty much the same as in the USA and England. Sometimes the words are a bit different, and the procedures may be somewhat different depending on what court one is in, but overall, the civil litigation is civil litigation is civil litigation.
Presently, I have a file in which the opposing counsel is new to Canada, after practicing in the USA. Every once in a while he needs to be brought up to speed on the minutiae of our procedure, but since all the fundamental concepts are already there from his American experience, he has no problems at all.
The Canadian provinces followed the major civil procedure reforms in the English court system in the later Victorian period, so our vocabulary tends to be a bit different from the American civ pro terms. For example, I don’t think any province still uses the term “demurrer”. However, as Muffin has commented, the general course of litigation is very similar to the US states.
In my jurisdiction, in this type of case I would go for a motion to strike, arguing, as Muffin has said, that even if the facts alleged by the plaintiff are true (which you must assume in a motion to strike), there is either no known cause of action, or the action is an abuse of the court’s process, which are the two alternative grounds for a motion to strike.
I’m not sure what you mean by a judgment on the pleadings - is it like seeking a judgment on a point of law? On that kind of motion, you assume the facts as pled by the plaintiff are true, but then argue that they do not support the legal result sought.
Even though the general course of litigation is similar, you occasionally run into some significant differences. For example, in Beals v. Saldana, some Canadians got sued in the Florida state courts. They filed a defence to the claim. The plaintiffs later amended their claim. The Canadian defendants didn’t file anything in response, because they thought that their initial defence also responded to the amendments. However, under Florida law, if the plaintiff amends, the defendants must file an amended statement of defence, or else they are deemed to have conceded the entire action. That seems completely bizarre to Canadian pracitioners, very much an :eek: !
So the Canadian defendants were deemed in default, and judgment issued against them in the Florida court. The Florida plaintiffs then sought to register it in Canada, and it went all the way to our Supreme Court, in part because this procedure seemed so unusual to Canadian eyes that it raised a question of whether Canadian courts should recognize it, or should conclude that it was so unfair as not to be enforceable. The Supreme Court allowed the registration of the Florida judgment on a 5-4 split.
Without getting too technical, in California we have three basic motions to attack a pleading:
Demurrer: Generally, when the complaint or a cause of action fails to state facts sufficient to consititute a cause of action, assuming all matters stated in the complaint are true for purposes of the demurrer. The court will only consider matters on the face of the complaint or juducially noticeable. Time limit, 30 days after service of the complaint.
Motion to Strike: Generally, to attack false or irrelevant matter (directed at specific words) or to strike a complaint not drawn in conformity with the law. This is typiaclly used to weed out improper damage claims, such a prayer for punitive damages in a negligence case, or to attack an unverified complaint that must be verified, or to attack a complaint filed after the leave period to amend a complaint has expired, etc. Time limit, again 30 days from service.
Motion for Judgment on the Pleadings: Generally, when a party is entiled to judgment as a matter of law based upon the facts in the complaint. Ususally, this motion is essentially a demurrer and/or motion to strike filed after the time limits have expired for the demurrer and/or motion to strike.
My understanding is that many jurisdictions have combined the grounds for demurrer and motion to strike into a single “motion to strike.” I believe the Federal Rules do this (FRCP 12(b)6)).
In California, if 30 days has not passed since service of the complaint, you can file a demurrer and/or motion to strike (2 motions with two filing fees). If the time has expired for that, then you combine the demurrer and motion to strike into a single motion and you stick a label on it that says “Motion for Judgment on the Pleadings.”
Essentially, all three of these motions do the same thing: remedy improper pleading. Why we need 3 different motions for that, I don’t know.
In California, there is no presumption that a prior answer to a complaint serves as a response to new claims in an amended complaint. Thus, standard procedure is the file a new answer whenever a party amends a complaint or cross-complaint, or make a formal stipulation that the old answer is deemed a response to an amended complaint.
Do they really still call it a “demurrer?” I thought that term was completely obsolete. (replaced by either FRCP 12B6/comparable state procedure # or the less pithy “failure to state a claim on which relief can be granted”). Just goes to show nothing is every completely obsolete in the law.
With respect to the Constitution Act or the Interpretation Act, I don’t think there is a statutory definition of either. Just take the plain and ordinary meanings and run with them.
I think we tend to use the standard definition of “Thing”.
“Matter” tends to be used for judicial proceedings other than a civil action, such as chambers procedings. See these definitions from the Queen’s Bench Act of Saskatchewan :
This is a question from someone who has never seen the interior of a court room in real life. (Me)
Can the court ban the guy from bringing any suits at all? What I mean is, can they make him a persona non grata in the civil court system for his outragous behavior?
That’s what Muffin is planning on doing - applying to the Court to have him declared a vexatious litigant (see posts 1 & 12). If the Court grants that order, the other guy won’t be able to file anything further with the court without getting the permission of the Court.
Like Northern Piper said, the court can declare him a vexatious litigant. We use the same term in the US, and typically it means that before the person can file any lawsuit whatsoever, they must apply to the court for permission. (In California, it’s limited to any lawsuit filed without a lawyer, or “in propria persona,” although lawyers can get in trouble, too!) The court can then vet the lawsuit before any defendant gets involved (and so before any defendant incurs any costs in defending). The court can also make other orders, like requiring the vexatious litigant to post a bond in the approximate amount of the costs of the lawsuit (“costs” meaning filing fees, copies, etc., but explicitly excluding attorneys fees), so that if the vexatious litigant loses the lawsuit and is ordered to pay the defendant’s costs, the money is available to do that. Courts sometimes have a problem with that last, however, particularly if the vexatious litigant is indigent or a guest of the state.
People prefer to deal with people they know and trust. It is common for a person to use his local laywer as a middleman when dealing with foreign lawyers. They relied on their Ontario lawyer’s advice. Unfortunately, their lawyer did not bother to either learn the Florida law or get an opinion from a Florida lawyer or refer them directly to such a Florida lawyer. Ouch!
[hijack]Come to think of it, at the moment I have a file in which I have been formally retained “to poke [Florida counsel] with a stick”.
So far I have been able to get the matter back on track, but if you ever hear of a Canadian lawyer being picked up at the border while attmepting to cross into the USA with a terroristic stick, you’ll know who it is.[/hijack]
From the opinion, it appears, despite receiveing notice of default, they did not seek any legal advice until judgment had been entered, and the advice given was bad advice. I wonder if they sued the attorney for malpractice.
