Civil Litigation Blog

In situations involving sexual misconduct in the workplace, criminal and employment law can intersect, sometimes with adverse results for an employee who has been accused. In situations where an employer or institution believes that one of their employee’s may be guilty of sexual misconduct in the workplace, either due to a specific complaint or through some other source, they will launch an investigation into the matter. Ontario’s Health and Safety Act was recently updated, mandating that employers must investigate any and all complaints of sexual misconduct or harassment in the workplace. Such an investigation often involves a third-party investigator being hired by the company or institution to conduct a full impartial and independent investigation into the matter. Third-party investigators are tasked with collecting any and all relevant information in order to make various findings of fact to conclude whether misconduct has occurred. In almost all cases, part of this investigation will involve speaking to the complainant, potential witnesses and to the impugned employee. Typically, the investigator will interview all relevant parties to gain a better understanding of what occurred. In most cases, law enforcement will not be contacted until the employer has completed their investigation, except in more extreme cases. This fact can lead to complications for an employee who is later arrested and charged for the allegations. Those who are charged with a criminal offence automatically gain certain rights, such as the right to remain silent and the right against self-incrimination. However, these rights have often not yet attached during the employer’s investigation. It is common for employees in this situation to feel compelled to speak to the investigator and give a statement. An accused employee may see it as their opportunity to tell

In M. (K.) v. M. (H.), 1992 CanLII 31 (SCC),  [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85, at paras. 21-24, the Supreme Court of Canada set out the underlying rationale for the limitations statutes as follows: There are three [purposes], and they may be described as the certainty, evidentiary, and diligence rationales. . . . Statutes of limitations have long been said to be statutes of repose . . . The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. . . . The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim. . . . There are, however, rules for the amendment of pleadings, which allow a court to relieve against the harshness of an expired limitation period in certain circumstances (for instance, in Ontario Rules 26.01 and 5.04(2) of the Rules of Civil Procedure). It would be wrong, however, to view such rules as allowing a party to use the existence of an outstanding claim, and nothing more, to defeat the protection of relevant limitation periods.See Frohlick v. Pinkerton Canada Limited, 2008 ONCA 3 (CanLII) at para 20In an upcoming blog I will discuss how this judicial policy informs the rules in respect of the amendment of pleadings.

At common law a distinction developed between expert witnesses engaged to provide opinion evidence in relation to a proceeding (litigation expert) and an expert not engaged by a party to form his/her opinions, and who does not form his/her opinions for the purpose of the litigation (participant expert). An example of the latter is a treating physician who gives opinion evidence directly related to his/her treatment of a patient, such as a working diagnosis and prognosis.   The distinction between these types of expert witnesses has been codified in amendments to the Rules of Civil Procedure as of 2010.The Rules of Civil Procedure provides a comprehensive framework addressing a specific class of expert witnesses (see Rules 4.1.01, 53.03 and Form 53):  those “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding.” Witnesses, albeit ones with expertise, testifying to opinions formed during their involvement in a matter, do not come within this description. They are not engaged by a party to form their opinions, and they do not form their opinions for the purpose of the litigation. As a result, this type of expert (a participant expert) may give opinion evidence for the truth of its contents without complying with the procedural requirements set out in rule 53.03.Westerhof v. Gee Estate, 2015 ONCA 206 at para 14.The Court of Appeal for Ontario has been clear that a party does not “engage” an expert “to provide [opinion] evidence in relation to a proceeding” simply by calling the expert to testify about an opinion the expert has already formed.Westerhof v. Gee Estate, 2015 ONCA 206 at para 82.A participant witness—a witness with special skill, knowledge, training, or experience who has not

Appeal    Security for Costs      A respondent to an appeal should consider whether or not to bring a motion requiring the appellant to post security of costs, essentially a payment made by the appellant into court underwriting the costs award against the appellant which might follow if the appeal is ultimately unsuccessful.An order for security for costs is appropriate when it is unfair to expose the respondent to the risk that the appellant will not satisfy the costs of the appeal if the appeal is unsuccessful.  Security of costs on appeal is governed by Rule 61.06(1)(a) and (c) of the Rules of Civil Procedure.For such an order to be granted under 61.06(1)(a), the motion judge musthave good reason to believe the appeal has no merit and is therefore frivolous and vexatious, andhave good reason to believe the appellant has insufficient assets in Ontario to cover the costs of the appeal.Of course, on a practical level it is impossible for a motions judge to assess adequately the merits of an appeal, considering the transcripts and volume of material which will be placed before the appellate court. In light of this, a judge hearing a motion for security for costs may reach the tentative conclusion that an appeal appears to be so devoid of merit as to give "good reason to believe that the appeal is frivolous and vexatious" without being satisfied that the appeal is actually totally devoid of merit.Where the appeal has a low prospect of success, more is required to establish the appeal as frivolous and vexatious."The words "frivolous and vexatious" imply that the appeal must not only have a minimal chance of success; there must be good reason, on the facts surrounding the litigation, or from the conduct of