Michael Ford (post until Oct. 31/19)
Civil Litigation

The Weinstein case and the ABCs of civil litigation

It isn't unusual that Harvey Weinstein would ask an Ontario court to dismiss a sexual assault lawsuit filed against him by a Toronto actress, but those wishes are rarely granted so early in the process, Toronto civil litigator Sarah O’Connor tells AdvocateDaily.com.

“While it’s basically standard practice for defendants to deny the allegations, rarely does the court dismiss the case outright,” she says. 

“By putting this position in the statement of defence, it makes it clear that the defendant wants the action to be dismissed from the start.”

O’Connor, principal of O’Connor Richardson Professional Corporation, is not involved and comments generally on the matter after a CBC article reported that Weinstein is arguing in court documents that he denies "each and every" one of the woman's allegations.

O'Connor notes that the article clearly lays out the basic litigation procedures in a claim and, in particular, highlights these legal issues:

  1. the regularity that defendants request the court to dismiss claims,
  2. proper jurisdiction matters,
  3. the motion to strike the pleading option for Weinstein, and
  4. next steps in the claim.

O’Connor says that while the court now has more leniency as a gatekeeper if it’s a vexatious claim to strike the pleading, generally, the defendant must bring a separate motion to do that. The defendant would then have to make arguments on why they want to have the action dismissed, she says.

“It’s called a Rule 21 motion and it can be a useful tool, but it can be difficult to get,” she says. 

O’Connor notes the court applies four principles in deciding Rule 21 motions. Those principles come from two decisions, one by the Supreme Court of Canada in 1990 and another by Ontario's Superior Court of Justice in 2003.

The Superior Court decision summarized the principles in this manner:

  1. The statement of claim should not be struck out unless it is “plain and obvious” that the claim discloses no reasonable cause of action.
  2. The allegations in the statement of claim are to be taken as true or capable of being proven unless they are patently ridiculous or incapable of proof.
  3. The statement of claim is to be read generously with due allowance for drafting deficiencies. 
  4. The court should not at this stage of the proceedings dispose of matters of law that are not fully settled in the jurisprudence (for example, a novel area of litigation).

O’Connor notes there’s no information available to suggest that Weinstein has filed a Rule 21 motion before the court.

“And I don’t think he will,” she says. 

It’s not unusual for defendants to bring forward such motions, O’Connor says.

“Sometimes there are partial successes on motions to strike pleadings,” she says.

“The court may strike certain paragraphs in the statement of claim. Sometimes the court rules in this way if it's impossible to prove that allegation.”

To respond to a claim, a defendant’s counsel will typically go through the allegations and respond by saying that they either agree, have no knowledge of, or dispute the allegation, and then the defendant will give their side of the story, O’Connor explains. 

She also points to how Weinstein is arguing the case shouldn’t be based on Canadian law.

“That issue looks at what the proper jurisdiction is for the claim,” O’Connor says. 

“The plaintiff will argue she is in Canada, this is where all of the evidence is and that this is the correct jurisdiction. Weinstein may argue that the proper jurisdiction is in California.”

Every jurisdiction has different time limits to be followed in litigation matters, O’Connor says.

The next step in the process, she adds, is for the plaintiff to reply to the statement of defence.

“It’s an optional step,” O’Connor says. “She can also address any new allegations that he brought up in the defence. The plaintiff doesn’t have to do this. It’s not taken as less of a case if the plaintiff doesn’t reply.”

After the reply, if there is one, the lawyers for the parties then begin exchanging the affidavits for documents, O’Connor says.

“That’s where all the disclosure comes in,” she says. “The plaintiff may provide any physician reports that exist, photos of injuries, proof she worked on the movie where the assault is alleged to have taken place, and any text messages that were exchanged between her and Weinstein.”

It’s also noteworthy that the plaintiff’s lawyers will get to ask Weinstein questions, which is different from a criminal proceeding where the accused isn't required to make a defence or testify, O’Connor says.

“And in civil court, he has to answer under oath,” she says. 

If the matter goes to trial, the court will have to decide the case on balance of probabilities as opposed to a criminal 

“The burden is on the plaintiff to prove her damages,” she says.

However, O’Connor doubts the matter will ever go to trial.

“I believe there will be an out-of-court settlement with a confidentiality clause,” she says. 

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