Ontario Barrister key terms

A client's right to keep confidential communications with a lawyer secret from courts and third parties. It survives the retainer and belongs to the client, who alone may waive it, and it is distinct from the broader ethical duty of confidentiality.

A lawyer's ethical duty not to reveal information learned in the professional relationship. Broader than solicitor-client privilege, it applies to all client information and continues after the retainer ends, subject to exceptions such as preventing serious harm.

A situation where a lawyer's own interests, or duties to another client or former client, create a substantial risk of materially and adversely affecting a client's loyalty or representation. It must be avoided or, with informed consent, managed.

A client's agreement to a lawyer's action or arrangement after receiving full and fair disclosure of all relevant facts and the material risks, and having had a reasonable opportunity to consider the advice and obtain independent legal advice.

A lawyer's fundamental obligation to act in the client's best interests, avoiding conflicts and not preferring the lawyer's own interests or those of another client. It complements competence, confidentiality, and the duty to follow client instructions within the law.

A heightened legal obligation owed by a lawyer to a client, requiring utmost good faith, loyalty, and avoidance of self-dealing. Breach can trigger disgorgement of profits, damages, or disqualification, independent of any negligence claim.

The agreement, written or implied, under which a lawyer is engaged to act for a client. It defines the scope of work, fees, and responsibilities, and it can be terminated by the client at any time or by the lawyer on reasonable notice.

A letter sent when a lawyer declines or cannot act for a prospective client, confirming no retainer was formed and no confidential information was received, or addressing any information received and how it will be protected.

A fee arrangement where the lawyer is paid only if the matter succeeds, usually as a percentage of the recovery. Ontario requires a written agreement, disclosure of the percentage and costs, and the client's right to seek review of the agreement.

A lawyer's itemized statement of fees and disbursements. It must meet rules on content and delivery, and a client may have it assessed for reasonableness by an assessment officer or court.

A higher scale of costs awarded to indemnify a party for the actual legal fees incurred, typically ordered where another party's conduct was reprehensible or where a contract or rule provides for it.

The ordinary scale of costs in Ontario civil litigation, intended to reimburse a successful party for a substantial but not complete portion of actual fees. It is awarded to the successful party absent contrary reason.

A court order requiring one party to pay another party's legal costs. It is discretionary, guided by rules and case law, and may be payable forthwith, within a set time, or in the cause.

A formal written proposal to resolve a proceeding, made under the rules of civil procedure. If not accepted and the offeror obtains a result as favourable or better, the offeror may receive enhanced costs consequences.

A motion for judgment without a full trial where there is no genuine issue requiring a trial. The court may weigh evidence, draw inferences, and order a mini-trial or use other powers if needed.

A procedural request to a court for an order or direction before or during trial, made on notice to other parties. It is supported by a notice of motion, affidavits, and factums, and heard in motions court.

A written statement of facts sworn or affirmed by the deponent. In Ontario it must be based on personal knowledge unless exceptions apply, and it may be cross-examined on, with the deponent's evidence carrying weight.

A written legal argument filed with the court setting out the facts, issues, law, and relief sought. It accompanies motions or appeals and must comply with rules on length, format, and authorities relied upon.

A pre-trial oral examination of a party or witness under oath, used to obtain admissions and assess the case. Counsel may ask broad questions relevant to the matters in issue, subject to privilege and proportionality limits.

A written plan agreed to by the parties, or fixed by the court, describing the scope and manner of documentary and oral discovery. It must address the parties, documents, timing, and any limits on discovery.

The statutory time within which a claim must be commenced. In Ontario the basic period is generally two years from discovery of the claim, subject to discoverability principles, ultimate limits, and specific statutory exceptions.

The principle that a limitation period begins only when the plaintiff knows, or ought reasonably to have known, the material facts giving rise to the claim, including that the injury was caused by the defendant's act or omission.

A period during which a party must give formal notice before commencing a claim or proceeding, often required by statute for claims against municipalities or the Crown. Failure to comply can bar or delay the claim.

A lawsuit brought by one or more representative plaintiffs on behalf of a class of similarly situated persons. It requires certification by the court on criteria such as common issues, preferability, and adequate representation.

The court's decision permitting a class proceeding to proceed. The representative must show a cause of action, an identifiable class, common issues, preferability, and a suitable representative with a workable litigation plan.

A court's review of a decision by an administrative tribunal or public body for legal errors such as procedural unfairness, lack of jurisdiction, or unreasonableness. It is discretionary and generally requires exhaustion of available remedies.

The intensity with which a court scrutinizes an administrative decision. Canadian law presumes reasonableness review, with correctness reserved for specific categories such as constitutional questions or competing statutory schemes.

Procedural fairness requirements for administrative decision-makers, including the right to notice, disclosure, a hearing, and an unbiased decision-maker. The content of fairness varies with the decision's nature and consequences.

A review of a lower court's decision by a higher court, generally limited to errors of law or palpable and overriding errors of fact. Appellate courts defer to findings of fact and exercise restraint on discretionary orders.

Permission required before an appeal may proceed in certain cases, such as appeals to the Supreme Court of Canada or some appellate and statutory tribunals. The applicant must show the appeal raises a matter of public importance.

The prohibited physical element of an offence, including the conduct, circumstances, and consequences specified by the offence. It must be proven beyond a reasonable doubt and must be voluntary.

The guilty mental element of an offence, such as intention, knowledge, recklessness, or negligence. The required form depends on the offence's wording and interpretation, and it must coincide with the actus reus.

The standard of proof in criminal cases, requiring proof so convincing that a reasonable person would not hesitate to act on it in matters of importance. Doubt must be based on reason and common sense.

The obligation to prove a fact or case to the required standard. In criminal matters the Crown bears the burden throughout, while the accused bears an evidentiary burden when raising defences like self-defence.

The requirement that the prohibited conduct be willed or directed by the accused, not the product of reflex or automatism. Involuntary conduct lacks the actus reus and cannot support a conviction.

A state in which a person acts without conscious control, negating voluntariness. Non-mental-disorder automatism may lead to acquittal, while mental-disorder automatism may attract a verdict of not criminally responsible.

A verdict where the accused committed the act but was suffering from a mental disorder that rendered them incapable of appreciating the nature of the act or knowing it was wrong. Disposition is managed by a review board.

The accused's ability to understand the nature of the proceedings and to instruct counsel. Unfitness is determined by the court, and the accused may be treated, reviewed, and later found fit or dealt with by a review board.

The constitutional instrument guaranteeing fundamental freedoms, legal rights, equality, and other protections. Legislation inconsistent with it is of no force to the extent of the inconsistency, and evidence obtained in breach may be excluded.

The Charter remedy allowing a court to exclude evidence obtained in a manner that infringed Charter rights if admitting it would bring the administration of justice into disrepute, assessed through a three-factor balancing test.

The principle that an accused is presumed innocent until proven guilty beyond a reasonable doubt by the Crown. It is protected by the Charter and shapes bail, trial fairness, and rules on burden-shifting.

A proceeding where a justice decides whether an accused will be detained or released pending trial, subject to the presumption of release and the ladder principle. The Crown may seek detention on specified grounds.

A bail hearing where the Crown must show cause why the accused should be detained, based on primary, secondary, or tertiary grounds. The justice considers the circumstances and may impose conditions.

The Crown's obligation to provide the accused with all relevant, non-privileged information in its possession. It is a core element of trial fairness, subject to limited exceptions, and continues throughout the proceedings.

Rights held by Indigenous peoples, recognized and affirmed by section 35 of the Constitution Act, 1982. They include practices, customs, and traditions integral to distinctive cultures and may require proof of continuity.

A sui generis collective right to exclusive use and occupation of land, held by Indigenous groups. It arises from prior occupation, is inalienable except to the Crown, and requires proof of occupation and exclusivity.

The Crown's obligation to consult and, where appropriate, accommodate Indigenous peoples before decisions that may adversely affect established or asserted Aboriginal or treaty rights. It is grounded in honour of the Crown.

A constitutional principle requiring the Crown to act honourably in its dealings with Indigenous peoples, including treaty interpretation and consultation. It informs the interpretation of Aboriginal and treaty rights.

Rights arising from historic or modern treaties between the Crown and Indigenous peoples, recognized and affirmed by section 35. They are interpreted generously, with ambiguities resolved in favour of the Indigenous signatories.