Case in Point

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Case in Point

Progress – our approach to litigation

This re-think is occurring at many levels, and is being directed to some extent top down by the court.
At Brown Litigation our tagline is “Progress”.  We believe this word captures our approach to litigation which puts value on strategic thinking, defining objectives, attaining outcomes, returning value to the client, efficiency, and only employing process where it can directly improve client outcomes.  We also believe that our approach to litigation does away with unnecessary process thereby allowing us to progress our client’s case rapidly towards client valued outcomes.
I have come across a well written article published in the Advocate’s Society Journal by a colleague Mr. Allan Rouben.  Mr. Rouben is a lawyer in Toronto, and I believe his article could use some light from our direction.
In its important decision in Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada signalled the need for lawyers and judges to re-think their approach to the civil justice system in order to provide timely and affordable access to the courts. This “culture shift” entailed simplifying pre-trial procedures and “moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the individual case.”While the statements were made in the context of summary judgment, it is apparent the Court intended them to apply to the system as a whole. As with all general pronouncements, their application was left to judges to adapt to the circumstances of individual cases. With a month now having passed since the decision was rendered, we are beginning to see the stirrings of what this culture shift might mean on the ground.TheTrustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2014 ONSC 660, involved a motion related to preparation of a discovery plan in a complex class action. As civil litigators know, our current documentary and oral discovery processes are exhaustive, and account for much of the associated expense and delay in the system.In his January 29, 2014 decision, Justice Paul Perell referred to the mind-set of counsel to request every document and look under every rock during the discovery process. He said:

[88]           Proportionality recognizes that perfection is the enemy of the good. Naturally enough, a litigant wants to know everything that might possibly be known to prove his or her case and a litigant wants to know everything about their opponent’s case so as to not be taken by surprise and to be ready to disprove the opponent’s case. But what a litigant wants is not necessarily what he or she needs, and the development and settling of a Discovery Plan should be approached by needs not wants.

[89]          And what goes for discovery and disclosure needs must be approached having regard to the proportionality principle that means that a litigant – and more precisely his or her advocate – must be re-cultured to accept that the adversary system needs far less in procedure than a perfectionist and sometimes obsessed advocate might wish for.

Garner v. Bank of Nova Scotia, 2014 NSSC 63, involved a motion to adjourn a trial for purposes of obtaining additional discovery. Associate Chief Justice Deborah Smith said:

[34]         During the hearing of this motion, I referred counsel to the recent Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), 2014 SCC 7.  In that case, the court, which was speaking in the context of a summary judgment motion, discussed a culture shift that must take place in relation to civil justice in Canada.  It recognized that our civil justice system is premised upon an adjudication process that must be fair and just.  The court went on to say, however, that undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (see ¶ 24).  It further stated that a fair and just process is illusory unless it is also accessible, proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure (see ¶ 28).  While these comments were made in the context of a summary judgment motion, in my view, they are applicable to all civil cases in Canada.

[35]         I am fully satisfied that if the Plaintiff’s first three motions were to be granted, this case would have to be adjourned once again.  The trial, which has been scheduled for over a year, will be further delayed while additional pre-trial steps are taken.  Delay will be warranted in situations where it is necessary to do justice between the parties.  In this case, however, I am satisfied that the Plaintiff’s solicitor is fully capable of dealing at trial with the new information that has come forward and I am further satisfied that it is neither appropriate nor necessary to embark upon further pretrial procedures.

Based on these early insights, a culture shift entails slimming down the process such that: (1) litigants obtain access only to the information they actually need to deal fairly with the claim; (2) pre-trial procedures are discouraged; and (3) there is a recognition that perfection is not needed to ensure a fair process.

Lawyers are paid to exercise judgment. That requires them to make decisions on what the client really needs to advance or defend the claim. It also requires them to make decisions on what procedures are really needed without compromising the client’s interests. If that becomes part of the culture shift we end up with, the justice system and public will be the beneficiaries.

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Posted by:  D. Jared Brown – Lead Counsel