Law Times

Page 4 September 30, 2013 Law Times • NEWS Toronto trio seeks alternative to motion delays Lawyers offer private option for process between pleadings, pretrial BY YAMRI TADDESE Dizgun say they were having coffee and complaining about how long it was taking to get a motion going. s procedural delays "On the several mediations I continue to frustrate had, the lawyers were also comcivil litigators in Toronplaining to me about how it was to facing up to seven taking them so long to hear a momonths to have a motion heard, tion. Then we came up with the three alternative dispute resoluidea: Why can't we use the flexibility tion lawyers are taking matters of the Arbitration Act to hear mointo their own hands.  tions?" says Caplan. Lawyers Gary Caplan, Leslie "It was both our personal frusDizgun, and Michael Silver are trations and those expressed to us launching a motions chamber by lawyers that got us thinking." where they say they'll adjudicate Other lawyers liked the idea and civil motions at a much faster pace wondered why no one thought of using the Arbitration Act. doing it earlier, says Caplan. "We're sort of privatizing that The trio plans to simplify the portion of the litigation process motion process. Litigators don't between pleadings and pretrial," 'We're sort of privatizing that portion of need a motion notice. "Just send me the litigation process between pleadings says Caplan. a letter," says Caplan. And if the parand pretrial,' says Gary Caplan. About a year ago, Caplan and ties agree, they may even do away Law Times A The Advocates' Society Arbitration and Mediation Advocacy Practice Group will honour Yves Fortier, C.C., O.Q., Q.C. with The Roger Fisher Lifetime Achievement Award in ADR Thursday, October 24th, 2013 The Ritz-Carlton, Toronto 181 Wellington Street West Reception and Dinner beginning at 6:30 p.m. Dress: Business Attire Tribute Speakers: V. V. Veeder, Q.C., Essex Court Chambers, London Pierre Bienvenu, Ad. E., Norton Rose Fulbright, Montreal Judge Stephen M. Schwebel, Essex Court Chambers, London For more information, contact Rachel Stewart (416) 597-0243 ext. 129 or rachel@advocates.ca Generously sponsored by: Premier Sponsor Media Sponsor Wine Sponsor Supported by: AdvocateSociety_LT_Sep23_13.indd 1 with affidavits.  "They can appear before us viva voce," he says. "Give their evidence in chief under oath, be cross-examined right there without a transcript, and we will hear it viva voce. The whole thing is over in a day rather than spending months cross-examining, transcripts, and all this other stuff." Flexibility will be the hallmark of their practice, says Dizgun. They'll hear motions outside of regular business hours and over the phone. "One size doesn't fit all," he notes. "Really, the court system is designed [so that] unless your case is selected for case management, you pretty much have a one-size-fits-all process. There's a frustration that there are simpler, more streamlined ways to get motions and actions moving to the point in which you get it resolved or you need to have a trial." In the context of arbitration, it's not new that the arbitrator would hear motions, says Dizgun. "We thought: Why can't this be applied in some form to an action? It still gives you the ability obviously to set the matter down for trial and still have your pretrial and trial in the court system. It just streamlines the process to those points."  The trio hasn't yet finalized their fee structure, but the general idea is to charge $500 per party for a motion. Parties could also choose to receive a bundle of services in which case the chamber would do case management, provide mediation, and adjudicate a certain number of motions. Of course, critics might say the approach opens the door to a two-tier system for those who can afford speedy justice and those who can't. But according to the lawyers involved, most litigants will ultimately save money by choosing to have their motions adjudicated by arbitrators. "Everyone knows the cost of litigation is quite expensive," says Dizgun. "I think these costs only increase where there are delays and where perhaps the procedure in some cases is unnecessarily cumbersome. I think that in the end result, if the matter is ready for trial in six months and not two years, there's going to be significant cost savings and it's going to make the system accessible." If the parties consent, they can even forgo the substantial indemnity costs calculation scheme and bear their own costs, according to Caplan. This scenario rarely happens but it remains an option for parties that would like to minimize the risks, he says. "The beauty of the Arbitration Act is the procedure can be as flexible as people want," he adds. Dizgun and Caplan are experienced mediators and arbitrators. "The idea was to bundle our services so depending on what the parties want to do, they can retain Leslie and me to do a spot motion," says Caplan. When parties retain their services, they'd have to sign a contract submitting to arbitration and the jurisdiction of the three lawyers. When parties don't comply, the trio won't be able to hold a contempt hearing. That's why rules in the signed contract will include fees for non-compliance, they note. But the private motions option isn't a good one for parties that want to delay the proceedings, Caplan points out. Although they'll likely hear most of the motions in Toronto, the lawyers are also willing to go to other parts of the province. They'll travel when necessary, they say, and are always willing to do hearings over the phone.  According to Siskinds LLP class action lawyer Kerry McGladdery Dent, London, Ont., is also seeing similar delays in the civil justice system. She says the court is scheduling motions booked in September for hearings in "mid to late 2014." The services of a private motion chamber are likely of no use for class action cases, she says, as the Superior Court must hear such matters. "We have to wait it out," she says. "But I can see how that could work in other cases." 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