Law Times

Page 4 March 17, 2014 • Law TiMes www.lawtimesnews.com OPSEU calls deal 'best solution possible' NEWS Do you need a break from routine to refuel your intellectual creativity? Become an International Law Research Fellow at the Centre for International Governance Innovation. Canada's premier international relations think tank invites leading practitioners, professionals, senior researchers and academics in law to join its new International Law Research Program. Located in Waterloo, Ontario, CIGI offers deep collaboration on issues critical to the international legal landscape, public policy and global governance. www.cigionline.org/careers DROP THE SUIT. REVIVE THE PASSION. EXPAND THE LAW. Untitled-3 1 14-03-11 11:54 AM Long motions 'still very far out' alleged the government failed to act on the rulings. In what OPSEU is now calling a "landmark settlement," the union and the ministry agreed court reporters would have two options to recover compensation. One option will allow court reporters who were doing transcription work for the ministry and are members of the pension plan to buy back their pension service by making retroac- tive contributions for their transcription earnings between June 2003 and June 2014, according to OPSEU. ose who don't like the first option or don't qualify for it can choose an alternative of $500 per year from the min- istry for every full year of service between June 2003 and June 2014 in which they were qualified to produce court transcripts. For its part, the union, which represents 650 court re- porters, said the settlement was the best it could do. "Ev- erything considered, I believe that this settlement is the best possible solution," said OPSEU president Warren omas in a press release. "Under Ontario law, it would have been very difficult to win a contempt motion against the Crown, and even then, the court would not have ordered compensation for af- fected members or any limitation on the ministry's right to implement its new model for the production of transcripts." "Appeals would have lasted for years, further frus- trating our members' rights. It was time to reach a set- tlement, and put some money in our members' pockets. We will now move forward, and monitor [the ministry] very closely as they implement this new transcription model." LT Continued from page 1 scheduling a civil motion to file a notice of motion within 10 days and pay a fee or lose the hearing date. But for civil litigator James Morton, the impact of the change has mostly been on scheduling short motions. e new requirement, he says, effectively cleared up the traffic of lawyers booking motions "on the off chance that they'll need it." "ey've sort of cleared up the people booking mo- tions on a maybe," he adds. "If people book tables at three restaurants, planning to go to one of them, you're not going to find a lot of reservations for a restaurant." But the change isn't noticeable for long motions, possi- bly because lawyers never booked them on the off chance they'd need them, he suggests. Trial and appellate lawyer Geoffrey Adair, who reports "modest improvements" in booking motions before masters, says quantifying the change has been difficult thanks to what he calls "erratic scheduling" that sometimes results in earlier motion dates and other times can yield long delays. Adair suggests requiring a notice of motion may not be sufficient to deter placeholder motions. Instead, he be- lieves the courts should require a party to file an entire record of motion 10 days aer booking a hearing date. But for Daniel Reisler, a founding partner at Reisler Franklin LLP, discouraging people from booking mo- tions can't be a solution to the delays. e fact that law- yers book motions early in case they need them later on shows just how difficult it is to schedule them when they do need them, he notes. "ey've instituted changes that are not designed to shorten the time period for having a motion heard; they're designed to discourage people from bringing motions," he says. Booking short motions is faster now but is "never less than six months," according to Reisler. He adds that the current scheduling system lacks transparency whereas the previous "running list" approach allowed lawyers to see just how many cases were on the schedule ahead of them. While the improvement on short motions is good news, not much has changed in the way of long motions, according to Morton. "Anything over about two hours is still ages and ages away in my experience," he says. Lawyer Chet Wydrzynski, also of Reisler Franklin, says that's his experience, too. "Long motions are still very far out. ey won't even give you a date on the phone," he says. "And you have to go to long motions scheduling court, which, as far as I'm concerned, is a waste of time." Several lawyers echoed similar sentiments about having to spend hours at the long motion scheduling court just to schedule a motion date, something they say should change. In the meantime, the civil review process is continuing at Greater Toronto Area courthouses including Brampton and Newmarket, Ont., said Smith. "It is anticipated that certain practices and procedures followed in Newmarket and Brampton may be consid- ered in Toronto region. It is also hoped that Newmarket and Brampton may benefit by adopting certain practices and procedures from Toronto region," she noted. She added: "With respect to civil initiatives in Bramp- ton, Brampton already has a rigorous pretrial regime for long civil trials, in which all civil trials expected to take more than five days are pre-tried before a trial date is set. Providing trial dates upon completion of the pretrial en- sures that matters are trial-ready before they are sched- uled for trial. I understand that Brampton is also consid- ering the initiatives identified in the review." LT Continued from page 1 s a dispute over when a party discovered a claim a genuine issue requiring a trial? at's one of several new questions the courts and lawyers will have to grapple with as new fact-finding powers resulting from the Su- preme Court's Hryniak v. Mauldin decision gives judges wide discre- tion to decide matters on a sum- mary judgment motion. In Hryniak, the Supreme Court held that on a motion for summa- ry judgment, judges should decide if there's a genuine issue requiring a trial based only on the evidence in the motion record. Following Hryniak, a number of recent cases have highlighted the question of whether disputes over delayed discoverability and the limitation period warrant a trial. In Huang v. Mai, Justice Paul Perell decided whether the case of a Scarborough, Ont., woman who launched a personal injury case more than two years aer a car hit her deserved to go to trial. e date of an accident isn't necessarily the time when a limi- tation period starts ticking, Perell noted. "Under the case law, for the limitation period to begin to run, the plaintiff must have knowledge that his or her damages could be considered permanent and seri- ous," wrote Perell. "I emphasize that the plaintiff must have knowledge because the limitation period does not begin simply because the plaintiff believes or ought to believe that he or she has a claim. Rather, the limitation period begins when the plaintiff first knew — which I take to be when he or she had an objective appreciation — that a proceeding would be an appro- priate means to seek a remedy." Perell then decided the point at which the plaintiff knew she should launch a lawsuit was an issue requiring a trial. "In the case at bar, for the reasons set out below, applying the powers of rules 20.04 (2.1) and (2.2) does not change my analysis and I am, therefore, satisfied that there is a genuine issue requiring a trial about whether Ms. Huang's action is statute-barred," he wrote. Perell "simply finds that the facts were not clear-cut in that case," says Gillian Hnatiw of Le- rners LLP. Deciding the case on summary judgment would have required calling the plaintiff 's medical evidence, a task better dealt with at trial, Hnatiw adds. But for Doug Bryce, a personal injury lawyer with Siskinds LLP, Perell didn't fully explore the sec- ond requirement of Hryniak that suggests judges should explore the possible ways they can avoid a trial if in fact there's a genuine issue re- quiring one. "He never really goes there," says Bryce. "He seems to have concluded that there was a genuine issue requiring trial and he never re- ally looked at whether there was something he could do, by look- ing at new fact-finding powers under the rules, to determine if he could avoid a full trial and go with something less than a full trial." As the courts continue to ap- ply Hryniak, it's likely they'll tin- ker with the process further, both Hnatiw and Bryce agree. In another recent matter about an unpaid commission, the court indicated that disputed discover- ability isn't "in and of itself " an is- sue requiring trial. "I agree with the submission on behalf of Manulife that the fact that there is a dispute as to when the claim was discov- ered does not in and of itself mean there is a genuine issue requiring a trial," wrote Justice Frances Kiteley in Kim v. e Manufacturers Life Insurance Co. LT As the courts continue to apply Hryniak v. Mauldin, it's likely they'll tinker with the process further, says Gillian Hnatiw. Is discoverability a genuine issue requiring trial? BY YAMRI TADDESE Law Times I

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