Culture Shift in Action

The Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, was nominally about the appropriate use of the summary judgment procedure in Ontario. In fact, the decision ventured more widely into whether the civil justice system could deliver timely and affordable adjudication for ordinary litigants. The system, the Court said, has become too unwieldy and a “culture shift” is needed to ensure that procedures are proportional and tailored to the individual case. The onus must rest with trial judges to take a more active role in managing the process in line with these principles.

In Bosworth v. Coleman, 2014 ONSC 4832, Justice Fred Myers showed how this works in practice. The matter came before him as a motion to enforce an agreement between the parties to limit the length of trial to ten days, in exchange for the plaintiff agreeing to cap the damages. In Toronto, trials of ten days or more are placed on a long trial list and this can result in a much longer wait time for a scheduled trial. When the defendant appointed new counsel who considered the trial would take more than fifteen days, the proper management of the trial came back before the Court. Justice Myers concluded that, in order to give effect to the necessary culture shift, judges must now take the bull by the horns:

Thorough case management and better controls on trial length are important arrows in the quiver of tools available to implement the culture shift mandated by the Supreme Court of Canada.  Case managing trial length, including limiting time for witness examinations, can help tailor trials to be proportionate to the needs of the particular case.  Doing so is not new in Ontario.  Many judges already impose controls on trial length and conduct either at the pre-trial conference or at the trial stage.  There are many high profile examples of active case management techniques having been utilized with great success.  In Pente Investment Management Ltd. v. Schneider Corp., 1998 CanLII 14808 (ONSC), 40 BLR (2d) 244, an oppression remedy concerning a very public corporate takeover bid was tried in 10 days after careful and thorough case management.  The disentanglement of Air Canada’s reservation system from that of Canadian Airlines was tried by Associate Chief Justice Callaghan under a highly structured and planned trial schedule in PWA Corp. v. Gemini Group Automated Distribution Systems Inc., 1993 CarswellOnt 170, 101 D.L.R. (4th) 15.  More recently, the complex claims in the Nortel Inc. insolvency have proceeded with a heavily scheduled trial including time-limited examinations of witnesses.  All of these cases had limited length and limited examinations despite involving very complex issues of fact and law and massive document productions…

Counsel for the plaintiffs proposes to file a very large number of medical reports at trial and to call 3 or 4 experts to give live testimony.  Counsel for the defendants proposes to cross-examine a large number of those witnesses.  The time involved in conducting all of those examinations, if not scheduled, would exceed the time which the parties have agreed to commit to the trial.  Neither counsel has proposed mechanisms to ensure that their clients receive the proportionate, timely and affordable resolution of their dispute that they want.  Are all of the painstaking examinations of seven years of medical treatment records really required?  Can they not be summarized?  Do any proposed in-court examinations involve facts rather than credibility and, if so, might they be conducted out-of-court before the trial?  Might it be possible for counsel to conduct shorter, tailored examinations?  Might opening and closing arguments be submitted in writing or be made briefly?  Can examinations-in-chief be adduced by will-say or affidavit?  The latter is often used in trials on the Commercial List while the former is used in nearly all civil trials in the United Kingdom.

The defendants’ counsel submitted that it is the role of counsel to determine if the trial will extend more than 10 days.  This is an anachronistic view.  Improving access to the civil justice system requires all users of the system (litigants, counsel, judges and administrators) to focus on ensuring that the system provides fair and just processes short of the unaffordable, painstaking trial of yester-year.

Issues can be limited to those that matter.  Examinations can be brief and focused.  It may take more work for counsel to prepare a short examination. [1]  Any lawyer can raise every possible issue and ask every possible question.  It takes little preparation to ask “What happened next?” as one leads a witness through a chronological book of documents.  Doing so is easier and perhaps less risky than actually focusing on the key issues and determining a strategy to deal with them briefly and efficiently.  Yet, counsel are expected to exercise such judgment for their clients. [2] At minimum, the culture shift required by the Supreme Court of Canada makes efficiency a key priority in trial planning.  It is very much the role of the court and the clients to promote access to justice by working with counsel to make trials shorter, run more efficiently, and thereby more affordable, timely and proportionate. [3]  For their part, judges will have to be prepared to increase their involvement and time commitment to assist the parties and counsel in case management.  This will require appropriate administrative support as was also recognized by Karakatsanis J. in Hryniak, at para. 79.

I need to stress in this case that it was the parties who agreed to limit the length of the trial.  The plaintiffs have economic expert evidence suggesting their provable losses are in the range of $1.4 million.  Their agreement to cap their losses at $775,000 represents a real compromise in their view.  The clients’ agreement requires their counsel to take positive steps to adjust the trial process so as to meet the clients’ laudable goals.  I am not determining that the parties’ agreement binds the court.  Rather, in my view, the court should strain to assist parties with defining processes that make the civil justice system affordable and accessible for themselves as long as the result is consistent with the fair and just resolution of the dispute on the merits.  I am confident that a fair and just adjudication of this dispute can be had in a 10 day trial.