The latest issue of The Advocates’ Journal has a commentary on the Supreme Court of Canada decision in Hryniak v. Mauldin by Jonathan Lisus. Mr. Lisus asks: “How will litigation history judge the decision – as a requiem for the vanishing trial or as a catalyst for modern trial procedure?”
It’s fair to say that Mr. Lisus is a fan of the conventional trial, frowned upon in Hryniak as being beyond the reach of ordinary Canadians. His thoughtful piece is a plea for advocates to make use of the decision to reinvigorate the trial process in creative ways:
The Supreme Court’s decision has lent significant scope for counsel to bring cases to trial in a quicker, more efficient and focused way than has any other access to justice initiative. Hryniak gives creative and trial-focused counsel and judges the tools to streamline trial-worthy cases into the most direct route to judgment. It also gives judges the moral authority to press the case for trial…Hryniak need not herald the demise of the conventional trial. But the trial bar would be foolish to ignore the message it carries. That message is that the bench is losing confidence in the ability of counsel and the system to deliver justice to litigants through the plenary trial. It is incumbent on trial counsel to embrace this message and employ Hryniak as a tool to revive it, or some substantial part of it. The discretion the Supreme Court conferred on the modern advocate and superior court judges affords us the opportunity to rebuild the confidence lost in the conventional trial.
Directing the trial of issues, the use of hybrid trials, bifurcating proceedings by splitting off liability from damages and alternative billing methods to make trials more affordable, are some of Mr. Lisus’s excellent suggestions. His call to push cases to trial with minimal interlocutory proceedings echo the thoughts of Justice David Brown, delivered most recently at the End of Term Dinner of the Ontario Bar Association Civil Litigation and Insurance Sections on June 11, 2014.
Justice Brown urged the bar to support a redesign of the civil justice system, such that judicial time is devoted to the final adjudication of disputes on the merits, and the interlocutory preservation of rights pending final adjudication. As he has done elsewhere, Justice Brown criticized the litigation culture “which extols creating and litigating peripheral procedural disputes, instead of moving towards the timely adjudication of disputes on their merits. That culture now lauds, as the skilled barrister, the motions specialist, not the final hearing expert.”
Mr. Lisus similarly concluded his piece with this important statement: “Trial counsel – those committed to preserving the civil trial, which we have as a privilege not as a constitutional right like our colleagues at the criminal bar – need to get serious about the problems in our approach that led to the Supreme Court of Canada’s loss of confidence in the value of the conventional civil trial. The decision is ours. We either adapt our practices and approach – and apply Hryniak, and the manner in which it has been embraced across the country, as a springboard to persuade RSJ’s, local administrative judges and the gatekeepers in Rule 20 courtrooms that the trial process can and does work – or we resign ourselves to a glorified motions practice.”