A recent Ontario Superior Court decision on costs highlights the growing frustrations on the bench with regard to civil justice reform, says Toronto civil litigator Patricia Virc.
The reasons for the decision on costs in Pinto v. Kaur et al., 2015 ONSC 1356 (CanLII) — a personal injury case — contain a large amount of policy commentary that is extrinsic to the case and could be inserted into any number of civil cases, says Virc, a lawyer with Steinberg Title Hope & Israel LLP.
“The first seven paragraphs of this decision, and many other paragraphs contained within it, have little to do with this particular case,” she says. “This could be a template for any number of cases and decisions. It is really meant to go well beyond this case.”
Justice Frederick L. Myers opens his decision in Pinto with a quote from the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7 (CanLII) and goes on to state that all providers and users of the civil justice system are responding to the culture shift.
“Everyone bona fide wants to give clients faster, more affordable access to justice. Leaving legal fees aside however, this can only be accomplished by moving cases along faster and doing less before each case is resolved,” writes Myers. “This is proving difficult for many users. Change usually is.”
Myers goes on to state that lawyers will have to alter their processes to keep up with the new speed and new limitations on processes required before resolution.
“Perhaps counsel will have to find ways to take on fewer cases at one time if each is to be resolved quicker,” he writes. “Proceedings are being brought, heard, and resolved more expeditiously than before. Counsel have to leave room in their schedules to respond to more aggressive scheduling that arises in some cases on the sudden,” the decision states.
Virc says there are very few lawyers who would want to be ahead of this particular scheduling change outlined by Myers.
“Most lawyers are not salaried and need to be able to make a living and they don’t want to be unoccupied while the system makes them and their clients wait,” she says. “Lawyers have to be reasonably confident that this change is in fact occurring before they start turning down new business. It’s a bit of a chicken-and-egg problem right now.”
In Pinto, Myers had ordered a mini-trial in an attempt to make the resolution of the overall case more efficient, affordable, timely and proportionate.
“There was a liability issue that required certain findings of credibility and the judge was prepared to conduct a mini-trial on that threshold issue,” Virc says. “That was apt in that case. However, whether a mini-trial or bifurcated trial can happen depends on the issues in each case. In some cases, it might not be appropriate because the issues are inextricably linked to one another and cannot be considered in isolation.”
However, a defendant in the case did not answer undertakings or produce the required documents as directed by the court and was sanctioned in accordance with Rule 57.01 of the Rules of Civil Procedure.
“Waiting to leisurely fulfill undertakings until trial preparation begins in earnest is no longer sufficient. Law firm administrative structures that only assign a staff member to freshen document production and to fulfil undertakings on the eve of trial may be understandable as a desire to defer avoidable costs in the event that settlement occurs at a pre-trial conference as it so often did in past,” writes Myers.
“But pre-trials are no longer necessarily going to happen in the post-Hryniak environment. Moreover, nothing can just wait any more. Counsel must be proactive in all steps to bring each action to the most efficient and affordable resolution,” he continues.
Virc says that because of these delays, the party was sanctioned in costs. She says that if the courts want to encourage or incent people to move quicker, they have to make sure that it’s the client who is deserving of the sanction.
“The responsibility for the delay is difficult to resolve because the information is a privileged part of the legal file and the lawyer is unlikely to reveal to the court that the delay is partly or wholly the lawyer’s fault,” she says.
Virc acknowledges civil justice reform is something that is not easily resolved.
“Right now there are a lot of very sophisticated minds directed at resolving these very complex problems in our civil justice system. Many people are feeling very frustrated and hopeless with it right now.
“This decision could be an expression of what judges are thinking now,” she says. “When you’re coming into a case conference or any sort of triage event which manifests itself in many forms in civil litigation, maybe this is a heads-up of what is going to be on the judge’s mind.”