Law Times

October 19, 2009

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Law Times • OcTOber 19, 2009 NEWS PAGE 3 companies ward off questionable disclosure requests and let them have their day in court, says a commercial litigator. "The problem of the people with the deep pockets not get- ting access to justice is finally something that's on the radar, which we haven't really ever seen," Ogilvy Renault LLP partner Kelly Friedman recently told a client sym- posium. "The ar- gument has always been, 'They're a major corporation, they can afford it, so no big deal.'" The new Rules of Civil Procedure come into force on Jan. 10 and include 25 changes. An increase to the monetary limit for cases handled in Small Claims Court to $25,000 from $10,000 has received much of the attention. But other key shifts include an increase in the monetary limit for simplified procedure to $100,000 from $50,000; a one-day cap on most pretrial examinations for discov- ery; mandatory advance time- lines for information sharing between parties; and the applica- tion of a "proportionality" prin- ciple that requires that the time and money dedicated to a case be in line with what's at stake. While deep-pocketed busi- nesses are rarely identified as a group restricted from fully uti- lizing the court system, Fried- man said it's a situation lawyers are familiar with. "One of the things that we talk about in the litigation profession — and it's very sad for litigators like me — is what we call the dis- appearing trial," she said. "Things just don't get to trial." While some observers may view that as a good thing, Fried- man suggested the reason trials are rare is that companies are be- ing forced to settle lawsuits. "It's too expensive to fight it on the merits," she said. Friedman points to the ex- plosion of technology in the past decade that has produced a vast storehouse of data and created an imbalance between the cost of preserving, collect- ing, and reviewing information before production and simply offering a settlement to avoid reputational risk. She's optimistic, however, that the new rules will remedy the situation. The discovery rule has to this point simply read that par- ties must "answer a question or produce a document if it's related to an issue in the proceeding," she noted. But with the minor substi- tution of "relevant" for "related," she expects some positive change. Friedman suggested that the related "semblance of rel- evance" test has created a lack of uniformity in the courts. New rules give business a break on discovery U BY ROBERT TODD Law Times pcoming changes to Ontario's civil court rules should help big Kelly Friedman "Some judges, in my view, got it right. There are some re- ally good decisions out there," she said. "Most got it wrong in the sense that when they were faced with motions for production, and there was a decent argument being put forward that what they were looking for might possibly be relevant to the case, it was very, very difficult for the judge or mas- ter to refuse production of it." The introduction of the prin- ciple of proportionality will add to the change, Friedman suggest- ed. That rule insists that the time and expense of a pro- ceeding be in line with the issues at hand. Many con- sider the propor- tionality principle amorphous, but Friedman explained it plainly as "look- ing at the cost- benefits of a given action where the benefits are the ends of justice as opposed to the benefit to a particular party." Lee Akazaki, vice president of the Ontario Bar Association and past chairman of its civil litigation section, agrees with Friedman's analysis. "I don't think that there will be too many tears shed for large companies out there," he says. "However, because we as law- yers speak on behalf of both large companies and impecu- nious parties, there is a certain amount of truth in that. "Quite often the entities that are targeted are often also the ones with the least actual liability expo- sure. And it's just the way things are and the way things turn out." Akazaki points to the likeli- hood that plaintiffs or co-defen- dants will engage in a "fishing expedition" to look for a way of increasing the risk for a company they are targeting. "Instead of saying, 'We will defend this case because we feel that we're not guilty,' they will say, 'We will settle the case be- cause it's going to cost so much to defend.' And that's not neces- sarily a just way of dealing with civil disputes." But speaking on the entire suite of changes, Akazaki says most lawyers are concerned with the courts' enforcement of the new rules. He recalls the situation in the 1990s when new summary judg- ment rules took effect. Many counsel viewed the change as a means to settle matters quickly, creating an influx of successful summary judgment rulings. But that prompted the Court of Ap- peal to restrict the use of the rule. "We as lawyers embrace change, and it will nevertheless take some adjustment. But when we do take on the adjustment, we'd like to be able to advise our clients, 'This is the nature of dis- covery from 2010 onwards, and these are the practices we're go- ing to follow,'" he says. "We're hopeful that when we actually do follow the new rules and take ad- vantage of the economies that we don't end up in motions court or appeals from motions court deci- sions which are contrary to what the rules are intended to do." Alan Mark, an officer of The Advocates' Society, agrees that abuse of the new rules is a key con- cern. For example, he says, parties could become "non-responsive to questions" in an effort to exhaust the new seven-hour cap on pre- trial examinations for discovery. He says there are also concerns that parties could use the propor- tionality principle to avoid pro- duction of relevant information. ARE YOU READY FOR THE FLU SEASON? With the recent H1N1 pandemic and flu season approaching, be proactive and prevent the spread of infectious diseases in your office. Prices in effect until October 30th , 2009 3.41EA. was $5.69 Lysol Disinfecting Wipes, 35/Dispenser 46146-00 ecting Wipes, 3 ol Disinf 5.65EA. was $7.20 Purell Hand Sanitizer Wipes, 100/Box 38256-00 Purell Hand Sanitizer Wipes, 100/Box Acme Comfort Masks, 5/Package 46105-00 Comfort Masks, 5/P 6.41PK. was $10.68 4.65EA. was $6.17 5.81BX. was $9.68 Disinfectant Telephone Wipes, 25/Box 41890-00 Disinfectant Telephone Wipes, 100% Purell Hand Sanitizer, 354ml 46015-00 Hand Sanitizer 3 Purell Hand Sanitizer, 236ml 38257-00 Hand Sanitizer 6.05EA. was $7.86 For more information please contact your Account Executive or contact us at 1-888-393-3874 dyedurhambasics.ca Untitled-3 1 Tough times call for strict measures, that's why you need… 10/1/09 4:06:39 PM Kleenex Facial Tissue, 100/Box, 2ply 38046-00 Kleenex Facial Tissue 100/Box 2ply 1.20BX. was $1.50 "It's going to be very impor- tant for the courts early on in dealing with the application of these rules to make it very clear that they're not going to permit these rules to be used as a mech- anism to avoid proper discovery obligations," he says. 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