Question

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:Doe v. Dill, 2007 BCSC 1669

Date: 20071119

Registry: Vancouver

Between:

John Doe

Plaintiff

And

Dino and Dill& Dill, Inc.

Defendants

Before: The Honourable Madam Justice Brown

[1] In 2004, Mr. Doe was looking for a business to purchase. His family had been involved in the automobile industry in India and he was looking for an automobile dealership to purchase in the Vancouver area. Mr. Doe learned that the Hyundai dealership in Burnaby may be for sale and he and his son, Jack Doe, met with Mr. Pell, the principal of the business. Mr. Pell's company, API Inc. owned the operating business for the dealership. Another one of Mr. Pell's companies, KE Inc. owned the land and buildings.

[2] In June 2004, Mr. John Doe and his son began meeting with Mr. Pell with a view to purchasing both companies, thereby acquiring the dealership, the land and the buildings. The negotiations continued into November, 2004.

[3] Mr. Dino attended several of the meetings with the Does and Mr. Pell as API's accountant. Mr. Dino is a chartered accountant. API engaged Mr. Dino to issue review engagement reports on API's financial statements for the years ended August 31, 2001 to 2004 (the "Reports"). Mr. Pell told the Does that he was not good with numbers, and referred them to Mr. Dino for questions about API's finances.

[4] The Does say that in the course of the negotiations, Mr. Dino made various statements about the value of the business, such as telling them that people would be lined up to buy the business and producing calculations of the value of the business. They say that on or about September 16, 2004 Mr. Dino told Mr. John that the purchase deposit of $250,000 would be adequately secured by a promissory note from API and Mr. Pell.

[5] The Does say that they received the 2002 and 2003 Reports on September 7, 2004. They say that Mr. Dino brought the Reports to a meeting, took them from his briefcase and handed them to Mr. Pell, who passed them to the Does. Mr. John says that he relied on the Reports and on Mr. Dino's assurance that a promissory note would be adequate security when he paid the deposit directly to API in two instalments on September 28 and October 4, 2004.

[6] The deal between Mr. Pell and Mr. Doe fell through. API and Mr. Pell became bankrupt in 2005. The Deposit was never returned to Mr. Doe and he took the case to court.

[7] Mr. Dino denies producing the Reports in the manner that the Does describe. He says that he thought that the Does had the Reports much earlier. He denies making the statements that the Does attribute to him, and particularly the comment regarding the security of the promissory notes. He says that Mr. John had his own accountants and a lawyer to provide him with advice and that the lawyer had prepared draft purchase agreements which contemplated the deposit to be held in trust by the plaintiff's lawyer. Mr. Dino says that although Mr. Pell asked Mr. John to pay the deposit directly to API, Mr. Dino was confident that Mr. John's lawyer would advise against this course. Mr. Dino says that he was surprised when he learned that Mr. John had paid the deposit directly to API. Mr. Dino acknowledges that the Does were referring to the Reports in their negotiations with Mr. Pell.

[8] On approximately November 2, 2004, Mr. John Doe received the 2004 Reports. Neither the previously received Reports for 2002 and 2003 nor the newly received Reports for 2004 showed a liability of $747,735.62 for unpaid provincial sales tax. This liability was assessed by the provincial government on September 29, 2003. Mr. John Doe says that had he known of this large liability, he would not have paid the deposit.

[9] Mr. John Doe claims against Mr. Dino and his company Dill Inc. for negligent misrepresentation. Mr. Doe says that the review engagement reports prepared by Mr. Dino on the financial statements of the company which Mr. Doe planned to purchase were prepared negligently. Mr. Doe further says that Mr. Dino negligently advised him that the purchase deposit would be adequately secured by a promissory note from the company and its principal.

[10] Mr. Doe says that as a result of these negligent misrepresentations he paid a deposit of $250,000 directly to the company, secured by a promissory note from the company and its principal. When the purchase deal fell apart, the company and the principal failed to return the deposit and subsequently became bankrupt. Mr. Doe's entitlement to the return of the deposit is not disputed in this action. Mr. Doe seeks damages from the defendants.

____________________

Presenting the Oral Argument

With a strong factum in hand, you have the framework for the argument of your motion. Remember, however, that the oral argument should not be a verbatim "repeat" of the factum. Rather, it should serve as a backdrop for the key points you wish to make within your argument. It is also a reference point for arguments that you do not have time to deal with during your limited time for oral submissions. The sections below provide some guidance for approaching the organization and presentation of your motion moot. Please consult other parts of this book for additional discussions of mooting techniques.

Terminology Tips

1. The Judge(s): When you are arguing a motion before a court at the Superior/Supreme/Queen's Bench level, the proper title with which to address the members of the bench is "Your Honour." Alternatively, if you know the judge's name, you may address her or him as "Justice X." If you are uncertain about the appropriate title with which to address your judge(s), inquire well in advance of the day that your moot is scheduled.
2. Opposing Counsel: It is customary to address opposing counsel by his or her title and surname (ex: Ms. Green) or by the term "my friend." Do not go overboard by saying "my esteemed friend" or "my learned friend."
3. Thoughts and Feelings: One of the most difficult aspects of mooting is the required avoidance of phrases such as "I think" and "I feel." These phrases are so much part of regular speech that it is difficult to avoid inserting them into our oral submissions. Yet, mooting involves engaging in somewhat formal language, and use of these phrases is discouraged. It is considered more appropriate to preface submissions with phrases such as "It is the Responding Party's Submission" or "The Moving Party takes the position that..." This requires a great deal of practice prior to the actual day of the moot!

Moving Party - Presentation Guide

1.Introductions

• Counsel: As the Moving Party, it is incumbent on you to introduce yourself and opposing Counsel. Example: "Good Afternoon/Evening Your Honour(s). My name is Jon Brown. I represent Jody Bark, the Defendant - Moving Party on this motion. My friend, Ms. Green represents the Plaintiff - Responding Party, Ms. Bloom."
• The Motion: You will also introduce the motion. For example: "The Moving Party seeks to have the Plaintiff's action dismissed on the grounds that it was commenced after the expiry of the applicable 2 year limitation period."

2.Facts

Some judges want to hear the facts; others do not. The best way to handle this issue is to simply ask: "Would you like me to provide a brief summary of the facts of this case?" If the answer is no, simply move to your roadmap (see below). If the court does want to hear about the facts, DO NOT simply read the facts verbatim from your factum! Rather, provide a brief overview of the facts that have led to the action overall, and the facts that are relevant to the issues that you will ask the court to rule on.

3.Roadmap

Provide the court with a "roadmap" of the issues you will cover during your submissions. You should expect that you will not be able to cover more than three key issues; more likely you will be able to deal only with two issues. So, choose your two (or three) winning arguments, and go with them. Example: "Today, I will deal with two issues. First, it is the Moving Party's submission that the Responding Party knew or ought to have known on the date of the accident that underlies this action, that she had a potential claim against Mr. Bark. As such, the limitation period started to run as of the date of the accident. Second, I will deal with the special circumstance set out in theLimitations Actunder which limitation periods can be extended, illustrating that the Plaintiff's circumstances do not fall within any of the exceptions."

4.Address Each Issue

After having set out the roadmap, follow it. Go back to the first issue and explain to the judge how the law and facts combine to lead to the conclusion that you want the court to reach. Be guided by your factum (and be ready to refer to the specific paragraphs within your factum where specific points are set out), but feel free to elaborate, and to describe the cases that you have referred to in your factum in more detail if this assists the court to understand how the authority applies.

You will have read the Responding Party's factum - if there are significant points that need to be addressed, use this time to deal with them. Example: "While the Responding Party refers toX.v.Yto support the argument that a special circumstance exists in this case, may I draw to the court's attention the fact that X v. Y involved a situation that is readily distinguishable from the case at hand..." Be careful, however. Do not allow your desire to rebut every point in the Responding Party's factum to dilute the presentation of your own theory of the motion. Instead, challenge only the critical points. If judges want to hear more about your position respecting the opposing party's written submissions, they will ask questions in this regard.

As you prepare your submissions, be aware that you are very likely to get a number of questions during the moot. As nerve-wracking as this seems, most students actually perform better when they are answering questions than when they are reading from prepared notes. Try to keep your composure and answer the questions in a conversational manner. Though sometimes a question deals with a topic that you planned to deal with later in your submissions, if at all possible, deal with it when you are asked. If you think it is impossible to do so, ask the court's permission to return to the question later in your submissions. Then, ensure that you do return to the question! Here are a few other tips for answering questions: (1) even if you think the question is not relevant, be respectful with your response; (2) if you don't understand the question, ask for clarification; (3) don't interrupt a judge when she or he is partially finished articulating a question; and (4) don't make wise-cracks when responding to judges' questions.

As a rough guide, you can expect that 7 or 8 minutes of prepared text will easily provide sufficient material for a 15 minute moot. There are different views about whether to bring a fully written text of your submissions with you. Most argue that having the key points written on cue cards allows you to make more natural submissions, and to avoid simply standing and reading your entire script (either from a paper copy or laptop).

When your time has almost expired (a time-keeper will flash time-cards throughout your submissions to let you know how much time you have remaining), wrap up the point you were dealing with. If you have not been able to address each of the issues that you had planned to deal with, let the court know where these points can be found in your factum. Example: Your Honours, while I have not been able to deal with the issue of exceptions under theLimitations Act, you may find the Moving Party's submissions on this point at paragraphs 15 to 19 of the Moving Party's Factum. Then, conclude: "In conclusion, the Moving Party requests that the action be dismissed, and that Mr. Bark be awarded the costs of this motion on a partial indemnity basis. Thank you, your Honours."

The court may have a few remaining questions. If so, be patient and respond to them.

5. Reply/Rebuttal

As the Moving Party, you will most often (but check with your moot organizer) have the opportunity to reply briefly after Responding Party's counsel has made his or her submissions. Normally, you will have approximately three minutes to reply. It is important to use this time wisely. The appropriate use of a Reply is to respond tonewmatters that were raised during the responding submissions - not to re-state arguments that you have already made. So, for example, if Responding Party's counsel refers to a case in support of an argument, and there is a clear distinguishing feature of the case that makes it arguably inapplicable to the situation before the court, you should draw this distinguishing feature to the court's attention during the Reply. If you are unhappy about the way you articulated a point during your original submissions, you shouldnotuse the Reply as a means of getting a second chance to explain exactly what you meant. Opinions differ as to whether one should always accept the offer to reply. In this author's view, it is better to decline the opportunity to reply than to simply re-hash material that has already been covered.

Responding Party - Presentation Guide

The bulk of the Responding Party's approach to presenting submissions is identical to that of the Moving Party. There are a few differences, however. They are set out below.

1.Introductions

• Counsel: Recall that the Moving Party will introduce you. As such, it may be unnecessary for you to re-introduce yourself. You should check in advance to determine the protocol in this regard for your moot. If you are required to introduce yourself, do not introduce counsel who has already spoken.
• The Motion: Obviously, the court knows what the motion is about at this point. What you are expected to provide is your client's position with respect to the motion. Example: "The Responding Party submits that the motion should be dismissed, since the limitation period only started to run after Ms. Bloom became aware of the connection between her headaches and the riding accident."

2.Facts

Assuming Moving Party's counsel did provide a summary of the facts, clarify or add facts that are key to your submissions. Please be sparing here - quibbling about insignificant differences in articulation of the facts will irritate the court. One example of an additional fact might be: "In addition to the facts outlined by my friend, I would like to draw one further fact to the Court's attention. On October 22, 20XX, Ms. Bloom attended Dr. Bow's office in relation to what she perceived to be stress-induced headaches."

3.Roadmap

See Step 3 of Moving Party's Presentation Guide

4.Address Each Issue

See Step 4 of the Moving Party's Presentation Guide, with a few special notes. First, you should have been listening intently to your opposing counsel's submissions, and to the court's questions for counsel. You may need to adjust your submissions "on the fly" to address issues that the court deems especially significant. Again, you do not want to become diverted from your own theory of the motion, but you may need to adjust your submissions to take into account the conversation that has just occurred. When you finish your submissions, you will summarize the relief requested by saying: "In conclusion, the Responding Party requests that the motion be dismissed, and that Ms. Bloom be awarded costs of this motion on a partial indemnity basis."

5.Rebuttal/Reply

The Responding Party does not receive an invitation to reply.

Conclusion

Having the opportunity to moot a motion will provide you with insights into "real life" litigation in a (relatively) low stress environment. Becoming comfortable with oral advocacy requires a fair amount of practice, and a great deal of preparation. At the end of the day, even students who are extremely nervous can do well when they know their facts, understand the law that relates to their motion, and have worked through the various ways in which the intertwining of law and facts could be interpreted. The writing and revision of the factum allows you to work through this analysis. When you are given the opportunity to articulate the arguments during your moot, you should be at a point where you are completely clear about the strengths and weaknesses of both your theory of the motion and that of opposing counsel. This preparation will do much to alleviate the stress associated with first-time mooting.

PLEASE EXPLAIN THE FACTUMS OF BOTH PARTIES.