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It is a fundamental democratic principle that trials, except in very rare circumstances, are open to the public. “Justice must be seen to be done.” The burden of proof falls upon the plaintiff, meaning that it is up to the plaintiff to convince the court that it is more likely than not that what they are alleging actually happened and that those facts constitute the substance of the legal complaint, such as defamation or negligence. As a result, the trial usually begins with an opening statement by the lawyer for the plaintiff, followed by wit- nesses called by the plaintiff who respond to questions from the plaintiff’s lawyer. This is called direct examination or examination-in-chief. As each witness testifies, the defend- ant’s lawyer has an opportunity to cross-examine. The types of questions that can be asked are broader on cross-examination than on direct examination. Thus, the plaintiff’s lawyer would not be permitted to ask the plaintiff “You were driving the car, were you not?” Leading questions, such as this, where the question suggests the answer, are permitted on cross-examination but not on direct examination. These kinds of restrictions are included in the rules of evidence, governing just what can be presented, usually based on how reli- able such evidence is likely to be. For example, hearsay evidence is generally not permit- ted. This involves third party statements where the witness testifying did not hear the statement in question but was told about it by someone else. That someone else who actu- ally heard the statement is the one who should be testifying. After the plaintiff has pre- sented his or her evidence through the testimony of witnesses, the defendant responds by calling his or her witnesses. The defendant’s lawyer questions them and the plaintiff’s lawyer cross-examines. Finally, the lawyers for both the plaintiff and the defendant have an opportunity to summarize their cases and make their arguments.

In civil actions plaintiffs must establish their claim on the “balance of probabilities.” This means that the judge need only be satisfied that the plaintiff’s position is more likely correct than the defendant’s. In a criminal matter the standard is much higher, where the prosecution must establish to the satisfaction of the decision makers that the accused is guilty “beyond a reasonable doubt.” That is, even if the judge thinks the accused is guilty, if there is another reasonable theory that could explain what happened, there must be a verdict of not guilty.

If the matter is heard before a judge alone, he or she will determine both questions of law and questions of fact and render a decision. As explained above, questions of fact relate to what happened, whereas questions of law refer to the legal principles that apply to those events and determine the rights of the parties. If a jury is involved, it must deter- mine the facts, that is, exactly what happened. The judge instructs the jury, setting out the law to be applied to the matter before them, including the legal rights and obligations of the parties. Then the jury retires to consider the matter and renders a decision. In

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The case must be proved “upon balance of probabilities”

Judge instructs the jury in law, but the jury decides facts

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Canada criminal juries consist of 12 people, although in specific cases 13 or 14 can be chosen to provide alternate jurors if some are disqualified or become sick during the trial. In civil cases juries are much less common, but when used (most often in personal injury cases), they typically consist of a lesser number (seven in Nova Scotia), and the decision does not have to be unanimous.

Once a judgment for liability is obtained in a civil action, the standard remedy is an order that the defendant pay the plaintiff a sum of money called damages. Damages are usually designed to compensate the victim for his or her loss. Special damages are those that can be accurately calculated, such as medical expenses or lost wages. General dam- ages are estimates of losses that are not capable of being directly calculated, such as lost future wages or pain and suffering. Aggravated damages are also sometimes awarded where the victim has suffered unusual mental distress. Note that the Supreme Court of Canada has placed significant limitations on the availability of damages for pain and suffering.11 This restriction on damages is just one of the reasons judgments in Canadian courts in civil matters are often considerably lower than in the United States. In rare circumstances where the conduct complained of was deliberate, punitive damages may also be granted, where the object is to punish the wrongdoer rather than simply to compensate the victim.

Where a monetary award will not appropriately compensate the victim, the court may order one of the following equitable remedies: an injunction, which is an order, nor- mally to stop the offending conduct, but can also be in the form of a mandatory injunction where the parties are ordered to do something, such as employees involved in an illegal strike being ordered back to work; specific performance, which is an order that one con- tracting party actually fulfill the terms of an agreement, for example, transfer title to his or her house; an accounting, where the defendant must pay over any profits he or she has made because of his or her misdeed (as opposed to compensating the victim for any loss); or other unique remedies associated with particular kinds of action. Several different types of injunctions are available. Interim and interlocutory injunctions are given before the ultimate determination of the matter at trial, usually to prevent greater harm to one of the parties during that period of delay. Of course, the judgment at trial may include an order for a permanent injunction. A Mareva injunction is a court order freezing the assets of the defendant to ensure they are available to satisfy an eventual judgment at trial. An Anton Piller order is similar and is often combined with the Mareva injunction; it authorizes one party without warning to the other to search and seize evidence, including assets and documents to ensure they are not destroyed.

In addition to these remedies, the court would also normally make an order for costs requiring that the losing party pay a substantial amount to compensate the winner for the expenses, such as for initiating the action, photocopying, producing transcripts, and fees paid to expert witnesses. These costs will also provide partial compensation for law- yers’ fees. Traditionally these are called party and party costs. In rare cases where the judge determines it is justified, more substantial costs can be awarded that come closer to the actual fees the lawyer will charge for those services. These are traditionally referred to as solicitor client costs, but that terminology has been abandoned in several provinces. Today it is common for lawyers to provide services on a contingency fee basis. This means that no hourly fee is charged; rather the lawyer agrees to take a percentage of the eventual judgment (usually 23 percent–35 percent) and finance the process out of his own pocket.

Damages and other remedies awarded

Costs usually awarded to winner

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Contingency fees usually are limited to those actions where the judgment is not in doubt, only the amount as in many personal injury cases.

Once the court has rendered its judgment, the matter is not yet finished. Either party has the right to appeal the decision where they believe the trial court has made an error of law. This is not a rehearing of the matter. The trial court is in the best position to deter- mine what actually happened, but sometimes the trial judge will make a mistake with respect to the law, such as allowing evidence to be heard that should have been excluded. These matters can be appealed, and the court of appeal can either sustain the decision, overturn it, or send the matter back for retrial if they do find an error of law has taken place that may have affected the trial court outcome. At this level the person bringing the appeal is referred to as the appellant and the person responding, the respondent.

Trial decision can be appealed

Majormaki Holdings LLP (Plaintiff/Respondent) v. Wong (Defendant/Appellant) in an appeal before the Court of Appeal for British Columbia

The plaintiff established a strong prima facie (on the face of it) case alleging that they had been fraudulently induced to pay the defendant $3.5 million to purchase a business. They were granted a Mareva injunction requiring the Wong’s to account for the $3.5 million and to freeze their assets so that they would be available to satisfy an ultimate judgment. The defendant instead improperly spent $190 000 of the funds and provided the plaintiffs with an inadequate or misleading accounting of their assets. They were found in contempt of the court order, and despite an apology and settlement of the plaintiff’s claim, Mr. Wong was still sentenced to 21 days in jail for contempt. He appealed that sentence in this action. The appellant argued in the Court of Appeal for British Columbia that the judge treated the matter as criminal contempt rather than civil contempt and that he failed to take into

account the apology and settlement made. Note that for criminal contempt to be imposed there has to be an ele- ment of public defiance, and that element was not pre- sent here, as Mr. Wong tried to hide his conduct, not flaunt it. The Court of Appeal found that although the jail sentence imposed by the Supreme Court of British Columbia was unusual for civil contempt, it was appropri- ate in a serious case such as this. The court also noted that the judge considered whether the apology was sin- cere and found that it was not genuine. That finding was up to the chambers judge alone, and the appeal court upheld the contempt sentence. The case illustrates the appropriate use of the Mareva injunction and also shows the court’s willingness to take serious action to enforce its orders even to the extent of imposing a jail sentence for civil contempt. Note that in order to acquire the Mareva injunction before the trial of the matter, the plaintiff had to establish a strong prima facie case so they would be successful at trial.

case summary 1.7 majormaki holdings LLP v. Wong12

Contempt Warrants Jail Sentence

12_{B.C.C.A., 2009 BCCA 349; 97 B.C.L.R. (4th) 64.}

The court cannot guarantee payment of damages. Where damages are awarded and the defendant, now referred to as the judgment debtor, fails to pay, the judgment creditor (plaintiff) must take extra steps to collect that money (see Figure 1.5). This may include a post-trial hearing to identify the judgment debtor’s assets and what steps can be taken to execute against those assets. Bank accounts or wages may be taken (attached or garnish- eed) by court order. Assets such as cars, boats, and other types of valuable equipment can be seized, pursuant to the court order, and sold to satisfy the judgment. Similarly, real property in the form of land and buildings can be required to be sold, and title transferred, to satisfy the judgment. Of course, if the judgment debtor has no assets or is bankrupt, The plaintiff (now judgment credi-

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trying to collect may be a fruitless exercise. This risk must be taken into consideration when deciding to sue in the first place. Where specific conduct has been ordered under an injunction or specific performance, for example, and the defendant fails to comply, or when a judgment debtor tries to conceal assets or otherwise avoid payment, his or her conduct may amount to contempt of court, and the defendant can face stiff fines and even imprisonment as a result.

In the interest of risk management the question must be asked whether the litiga- tion is worth the trouble it creates. The fees charged for court services, discovery transcriptions, and document reproduction can be high, but are nothing compared to the cost of expert witnesses and lawyers whose fees can range from a few hundred to thousands of dollars per hour. It has been reported that a single day in court in Toronto can cost up to $10 000. Since many trials last much longer than that, a plaintiff must be very certain of some return before risking litigation. Often taking some form of security at the outset, before any conflict arises, can avoid much of the risk associated with litigation. Depending on the type of transaction, it is often possible where a debt is created to take a claim against some asset as security. This might be anything from tangible to intangible property, such as shares, negotiable instruments, or accounts receivable. Alternatively, a third party can guarantee the debt. When such security is present, the claimant can usually take possession of it and resell it without a trial or even a court order.

It may also be possible to reduce some of the costs associated with litigation by obtaining legal aid, but this is only available in limited circumstances. Note that in some cities student-run legal clinics may be available. This can be an invaluable service for those who are hesitant to take their problems to a practicing lawyer. For those who have not already established a relationship with a lawyer, provincial branches of the Canadian Bar Association offer a lawyer referral service.