This post is directed to lawyers (though non-lawyers are welcome to read as well) in particular, newly Called lawyers. Please. Litigators. Read the Rules of Civil Procedure before moving forward on a matter.
Recently our firm has encountered two instances where counsel (both Osgoode grads, sigh, what happened to that quality education they used to provide?) didn’t know the basics and that needs to improve.
Here are the two instances, young counsel, learn from this:
1. A lawyer from a large Bay Street firm told their former client that in order to collect a cost award from the Divisional Court, they would have to start a Small Claims Court action for the cost order.
Oh yes. Let that sink in. I can’t help but wonder what court the lawyer believed you needed to sue to enforce the Small Claims Order in.
As those of us who did more than photocopy when we articled know: the Rules say you can enforce a Divisional Court Order by garnishing, selling assets or an examination in aid of execution. This is the way you enforce all Orders. Though I suppose the Bay Street firm is more obsessed with the paper judgment (so pretty) rather than the money the client really needs (so practical).
2. A lawyer asked why we served an ex-parte Order & motion record on their client after we obtained the Order.
Rule 37.07(4) is why. The Rules say you have to.
The lawyer then said “I thought you would have had to serve it before the motion.” Really? An ex-parte (meaning without notice) motion should be served ahead of the motion. Isn’t that “with” notice?
I have the Rules of Civil Procedure burned into my memory from my Articling days, 24 years ago. The Toronto Masters ensured that happened, by mocking, sighing as they recited rules to students who didn’t know them and occasionally throwing things (a Consent hit me in the head once when a Master threw it at me from the bench: I’m not saying that was right, but I never messed up what order the documents in a Consent should be presented in after that).
Our profession can do better than this. Let’s start with the basics, shall we? Come on lawyers, read the Rules already !!!
Inga B. Andriessen JD