Law Times

Law Times • February 4, 2013 Page 7 COMMENT Wynne should reform negotiation system I ncoming premier Kathleen Wynne was never going to have much of a honeymoon. Tim Hudak and his pack of Conservatives began baying for her hide even before workers had swept the banners and coffee cups from the floor of the old Maple Leaf Gardens. Wynne, though, is a consensus builder and she has already started trying to build bridges by chatting up the two teachers' unions and a couple of school board leaders and pledging to unravel the mess of Bill 115. She has also warned, however, that "there is no more money from the province" and she's not going to tear up those imposed contracts. So if Wynne wants to resolve this impasse and ensure it never happens again, she has to change our broken system of negotiating contracts. The Education Quality Improvement Act, the infamous Bill 160, is at the root of this dysfunction. Among the changes, it removed class size, preparation time, and other issues from the control of local school boards. But it was the Liberals who took the issue one step further by creating the concept of central bargaining. It made sense because school boards could no longer levy property taxes to pay for education as the province took control of them. So we end up with this weird situation in which the unions sit down with best Wynne can do is convince the province to bargain the meat Queen's the teachers to back her and buy of their contracts and then go to time to figure out how her party Park local boards to sort out the details can cling to power. within the financial constraints That's just one fetid file rotlaid down by the first round. ting on Wynne's desk. Aside Legally, however, the province from the controversies lingerisn't the employer and thus can't ing from ORNGE and eHealth actually sign a contract. While the Ontario, there are calls for her boards can sign contracts, they to tackle welfare reform, recan't sign the cheques that really solve transit funding, and conmatter. It's quite the predicament. vene an inquiry into the gasIan Harvey In effect, Bill 160 under plant debacle. former premier Mike Harris paved the Feb. 19 is the expected date for Wynne way for Bill 115 under outgoing Premier to take office formally and for the legislaDalton McGuinty and now Wynne has to ture to return from prorogation. Meanclean up the residual mess. while, she's also looking ahead to a budget Wynne's choices are simple: scrap the de and a throne speech and both Hudak and facto two-tier system and throw bargaining NDP Leader Andrea Horwath will have no back to the school boards or enshrine it in shortage of demands for her to include. law with the central process supreme in setOne thing, however, is certain: there's goting down the overriding terms governing ing to be financial pain. Wynne has already class size, per-student spending, prepara- said new revenue tools are on the table, and tion time, professional development days, that means new taxes, tolls, and levies. the scope of work and whether it includes As such, Wynne is beginning to sound extracurricular activities or not, banking of like a tax-and-spend Liberal and that sick days, and hiring policies. sound you hear is Hudak warming up his The chances of a common-sense, practi- campaign tour bus. LT cal solution, however, are remote. You'd need a majority government with a steel back- uIan Harvey has been a journalist for 35 bone to ram through anything dealing with years writing about a diverse range of issues teachers or, for that matter, any public-sector including legal and political affairs. His e-mail union in this polarized environment. The address is ianharvey@rogers.com. u Letter to the editor NORTEL JUDGE DESERVES FULL CONFIDENCE The suggestion made by Prof. Steven Salterio (see "Prof questions expertise of judges, Crowns following Nortel ruling), that the outcome of the Nortel trial might have been different if the trial judge had "more experience with corporate law" is truly ridiculous and made more so by his acknowledgment that he could not say whether the decision of the presiding judge was right or wrong. The Nortel case was a criminal trial that required the application of the rigours of criminal law, including the onerous burden of proof resting on the Crown. Justice Frank Marrocco has extensive experience with criminal law and was well-equipped from every point of view to deal with the evidence tendered before him. If the accused are acquitted in these circumstances, it can be assumed that the Crown failed to prove its case. The notion that the system requires that the presiding judge have specialized knowledge of business practice assumes that he might then apply his own views despite the evidence. It's a frightening proposition. This is the adversary system, professor. You can have full confidence in Justice Marrocco. David Scott, Borden Ladner Gervais LLP, Ottawa LETTERS.indd 1 Lots of discovery refusals lead to more discovery time BY OLIVIER GuILLAuME For Law Times F continue for an additional one hour and 45 minutes. Clement's examination for discovery resumed on March 5, 2012. It took, according to the defendant's calculations, one hour and 44 minutes to complete. This now brought the total time for the plaintiffs' examinations for discovery to nine hours and five minutes. What is notable is that Clement again refused to answer a number of discovery questions and requests at the continuation of her examination. This time, there were 29 refusals in only one hour and 44 minutes. The defendant brought yet another motion to have Clement answer her latest discovery refusals and continue her examination with respect to her answers to undertakings and refusals from March 5, 2012, onwards. Once again, prior to the motion on Oct. 1, 2012, Clement had answered or agreed to answer 27 of her additional 29 discovery refusals as well as all of the refusals that were the subject of the motion. However, at the second motion, the plaintiffs opposed the defendant's request for the continued examination for discovery of Clement.  In  the motion decision, Master Linda Abrams agreed with the submissions from the defendant's lawyer and the reasoning in Senechal v. Muskoka. In addition, she found the defendant could pose further discovery questions as required given the large number of questions answered or to be answered since March 5, 2012; the fact the questions dealt with substantive issues; that the defendant did not set the action down for trial or expressly consent without reservation of rights to set it down; and that what the defendant was seeking was a narrowly circumscribed time-limited continued discovery. Interestingly,  Abrams did not specify the amount of time the defendant had for its continued discovery of Clement. However, it should be noted that the defendant had requested an additional two hours of discovery time in his motion materials. Assuming the defendant would have been entitled to an additional two hours, this would have meant the plaintiffs would have been subject to 11 hours and 5 minutes of discovery time. What can be taken from the Clement motion decisions is  that if one party inappropriately refuses to answer a large number of discovery questions, its examination may well exceed the seven-hour maximum by a significant amount. LT u SPEAKER'S CORNER or most lawyers, completing an opposing party's examination for discovery within the court-mandated maximum of seven hours is usually not a problem. However, it can sometimes be difficult to comply with this time limit, especially when the party under examination refuses questions or requests for production. There are many reasons to refuse discovery questions or requests. A common reason is the lack of relevance to the issues at hand. But the reality is there are sometimes many more untold reasons for refusing discovery questions and requests. For example, in my experience, it is common, especially in personal injury actions of limited value, to have a more junior lawyer attend the examinations for discovery rather than the senior counsel of record. What tends to happen is discovery questions will be taken under advisement presumably so that the junior lawyer can consult with the senior counsel following discovery to ascertain whether the questions were proper or not. While this is understandable to some extent, my experience is that without some pressure from the opposing party, the questions taken under advisement simply become refusals later on. In addition, this practice can lead to a series of discovery refusals arising from the fact that the junior lawyer is uncertain or simply does not know whether the questions and requests are appropriate or not. Another example arises when lawyers will refuse a question because they're unsure how the client is going to answer it. Rather than take the risk that the client may provide an unsatisfactory answer, lawyers will refuse the question in order to have the client respond at a later date in writing. While this might buy some time to ponder how to respond to a seemingly difficult discovery question, it is an inappropriate response, particularly when the court later deems it appropriate or the client answers it. Whatever the reasons for the refusals, they can be quite disruptive to the flow of an examination for discovery. This can often lead to the party or lawyer who's conducting the examination for discovery wasting valuable time establishing relevance of the refused questions or spending an inordinate amount of time in discussions on the appropriateness of them. In these circumstances, having to spend valuable discovery time in this manner may use up the court's mandated maximum amount of seven hours. The only way to then obtain more discovery time is with the consent of the party being examined for discovery or with leave from the court. A recent example of this situation occurred at the plaintiffs' examinations for discovery in Clement v. Benwell.  The facts were relatively simple. The adult plaintiff, Jenny Clement, was a passenger in a van during stop-and-go traffic on a highway when the defendant vehicle rear-ended it. Clement was already a quadriplegic prior to the accident. There were three plaintiffs in the action: Clement and her two parents who claimed damages pursuant to the Family Law Act. The opposing parties' lawyers had been unable to agree on the length of the discoveries via a discovery plan in advance. The plaintiffs' lawyer had suggested conducting Clement's discovery within three hours while allocating one hour for the other plaintiffs. Counsel for the defendant had insisted on having its full court-mandated seven hours of discovery for the three plaintiffs. The plaintiffs' examination for discovery took place over two days.  At some point during the second day of Clement's examination for discovery, the plaintiffs' senior lawyer decided enough was enough and that discovery should be over even though the defendant's counsel advised that Clement's examination was not yet complete. By that time, Clement had refused to answer 54 discovery questions and requests and provided 79 undertakings. Counsel for the defendant then brought a motion to continue Clement's examination for discovery and have her answer 44 of her 54 discovery refusals. The defendant's motion materials indicated Clement's examination for discovery had ended just short of the sixhour mark and the two Family Law Act plaintiffs' examination took one hour and 27 minutes to complete. This resulted in a total time of seven hours and 21 minutes for the three plaintiffs' examinations for discovery. By the time Master Barbara McAfee heard the defendant's motion on Sept. 12, 2011, Clement had answered or agreed to answer 42 of the discovery refusals. In addition, Clement had agreed to have her examination for discovery www.lawtimesnews.com uOlivier Guillaume is a partner who handles litigation matters at Borden Ladner Gervais LLP in Toronto. 3/1/12 4:39 PM

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