Law Times

Law Times • January 19, 2015 Page 7 www.lawtimesnews.com COMMENT A new approach to resolving questions of law on pretrial motions By sTePHen PiTel and maTTHeW lerner For Law Times t has become accepted wisdom that Ontario's civil justice system is in crisis. While some ar- eas of civil procedure have recently received con- siderable attention from those looking at reform, most notably summary judgment, the discussions have largely ignored other aspects. One of them is the law on pretrial motions to resolve questions of law. Ontario's Rule 21.01(1) addresses two alternative ways for resolving questions of law on a pretrial basis. First, Rule 21.01(1)(b) permits a party to move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. Second, Rule 21.01(1)(a) permits a party to move before a judge for the determination of a question of law, raised by a pleading, when it may dispose of the action, substantially shorten the trial or result in significant cost savings. As is well known, the test for whether the court should strike a pleading pursuant to Rule 21.01(1)(b) is whether it is plain and obvious that there is no reason- able cause of action or defence. Under this approach, if the motions judge is facing a novel pleading, the fact that the law has not yet recognized the particular cause of action or defence pleaded is not in itself sufficient to justify striking it from the plaintiff 's statement of claim or the defendant's statement of defence. Ontario courts have held that matters of law that are not fully settled should not be disposed of on a motion to strike. The motions judge must accept the facts alleged in the statement of claim or defence as true unless they are pa- tently ridiculous or incapable of proof, and the pleading should be read generously with allowances made for in- adequacies due to drafting deficiencies. On a straightforward reading of Rule 21.01(1)(a), one might think there was no particular test for a mo- tion under it. If the triggering language of the rule is satisfied, then it proceeds to resolve the question of law. However, Ontario courts have read into the rule an additional threshold. In MacDonald v. Ontario Hydro, the motions judge held that the court should not decide a question of law unless the answer to that question was plain and obvious. The Divisional Court agreed. Subsequently, the use of the plain and obvious test in considering a motion under Rule 21.01(1)(a) has repeatedly been affirmed by Ontario courts. Over the years, the courts have offered three dis- tinct reasons to support the plain and obvious test. The first is rooted in the legal origins of these motions. The second centres on the apparent need for a full evidentiary record. The third is based on notions of access to justice. All treat the conventional trial as the paradigmatic means of resolving civil disputes. First, Rule 21 is the codification of the historic inher- ent power of the superior court to deal with proceedings that constituted an abuse of process. Claims that failed to disclose any cause of action were considered abusive, along with those that were frivolous or vexatious. The threshold for concluding that a claim was abusive, frivo- lous, or vexatious was a very high one, and so consis- tency led the court to adopt a similarly high threshold for those that did not disclose a cause of action. Second, the courts have repeatedly stressed the need for a full evidentiary record as the proper context for the resolution of novel, complex, or contested legal issues. This provides the court with what it considers a more complete factual picture. This approach means that in many cases the court refuses to decide motions on ques- tions of law, preferring to defer the issues until trial. Third, as noted above, the courts have also indicated that even when there is no concern about the sufficiency of the record, unsettled legal questions should not be re- solved under Rule 21. Like the other reasons for the high threshold, this is an expression of the philosophy that only in the clearest of cases will a party be deprived of having the dispute resolved at trial. In Dyson v. Attorney General, the English Court of Appeal warned against the plaintiff being "driven from the judgment seat." Each of the reasons for the plain and obvious test can and should be challenged. First, while the historical abuse of process roots of motions to determine questions of law cannot be de- nied, a strong argument can be made that the role of these motions has evolved. Today, Rule 21.01(1) is better understood as a separate, independent part of the Rules of Civil Procedure rather than as a subset of the doc- trine of abuse of process. This is most notable in Rule 21.01(1)(a) since the resolution of discrete legal issues is not linked to ideas of abuse of process. Rule 21.01(1) plays a much more important role than simply guard- ing against radical defects in pleadings. Second, the need for a full evidentiary record is also increasingly questionable. On a Rule 21 motion, the facts as pleaded are to be taken as true, so it is hard to see why courts have stressed the need to proceed to trial. This point has been noted recently by the Supreme Court of Canada in R. v. Imperial Tobacco Canada Ltd. If a de- fendant is moving to challenge the sufficiency in law of a plaintiff 's pleading, it is hard to see how the plaintiff should be entitled to rely on the low plain and obvious standard due to the lack of a factual record. The plaintiff has had the opportunity to create the most favourable factual context in which the legal issues are to be re- solved through the drafting of the pleadings. Third, the biggest overall change of late is a move away from thinking that the conventional trial is the dominant means of resolving civil disputes. That idea has been forcefully challenged in the summary judg- ment context by the Supreme Court of Canada's recent decision in Hryniak v. Mauldin. In the court's view, the traditional balance between extensive pretrial processes and the conventional trial no longer ref lects the modern reality and needs to be readjusted. It emphasized that a new and proper balance must recognize that a pro- cess can be fair and just without the expense and delay of a trial and that alternative models of adjudication are equally legitimate. While this was in the context of a shift to a more liberal use of summary judgment motions, the rationale is equally apposite to more liberal use of mo- tions to resolve questions of law. It is lamentable that in Canada (Attorney General) v. Confédé ration des syndicats nationaux, our highest court repeated the orthodox ap- proach to motions to strike based on an alleged concern about allowing access to justice without any discussion or analysis of whether that traditional approach remains de- sirable or even supportable on a modern understanding of what access to justice truly requires. The traditional rationale for the plain and obvious test for Rule 21 motions is no longer convincing. It cannot remain acceptable for motions judges to defer to the need for a full evidential record, the difficulties posed by complex or novel legal questions, and the importance of a party's day in court in the form of an ultimate trial on the merits. On closer examination, these reasons are insufficient to support the orthodox approach. Ontario's system of civil procedure requires what the Supreme Court of Canada calls a culture shift, moving away from relying on trials as the dominant means of resolving disputes. Earlier judicial inter- vention through alternative processes will promote greater efficiency and access to justice, and this can be achieved without sacrificing the fairness of the pro- cess. Judges in a variety of contexts have shown that they are more than capable of resolving novel or com- plex questions of law on motions. This should become, through both jurisprudential and regulatory change, the new approach to Rule 21 motions. The plain and obvious test is a legacy of history and a product of a different judicial age. The various reasons articulated in its support no longer withstand scrutiny and as a result it needs to be replaced. LT Stephen Pitel is a professor at the Western University Faculty of Law. Matthew Lerner is an associate at Lenczner Slaght Royce Smith Griffin LLP. u SPEAKER'S CORNER Let's have respectful debate on civil juries y recent column in Law Times on civil juries created quite the reaction. To say the reaction was negative would be an understatement. No one supported my view on abolish- ing jury trials for civil lawsuits. I expected reasoned debate, some of which I received, but I didn't expect the personal attacks. "Alan Shanoff is hardly an authority," one person said. Someone also lectured me about the "vital role" juries play and how they're a "cornerstone in a free and democratic society" and "fundamental to the democratic process." I even had the Magna Carta thrust in my face. After reading all of the praise heaped upon juries and their superiority over judge-alone trials, perhaps my column ought to have discussed whether we ought to abolish the latter. Why tolerate judge-alone trials? Let's improve our jus- tice system by mandating jury trials for every civil action. Oddly, nobody commented on the fact that Quebec and the Federal Court of Canada have abolished civ- il jury trials or that England has long since barred the use of juries for personal injury cases. Some states and territo- ries in Australia no longer al- low civil jury trials while oth- ers provide for them but not for motor vehicle litigation. Equally strange, nobody chose to comment on a schol- arly study on civil justice re- form I had quoted. Nobody chose to attack former Ontario associate chief justice Coulter Osborne, author of the civil jus- tice reform project report. He called it an "unfortunate reality that insurers in most negligence actions require their counsel to deliver a jury notice." Osborne also said serving a jury notice is part of a strategy "to increase the risk to which the plaintiff is exposed, manifestly on the basis that the insurer can absorb the risk better than almost all plaintiffs." It's strange that nobody commented on that damning statement or its implications. But among the replies were telling comments from a senior litigator. "From a prac- titioner's standpoint, jury tri- als are fun," said the litigator. "They add an element of ex- citement and drama and re- quire a bit of acting on behalf of counsel. That's why trials on TV are always in front of a jury." Well, the entertainment value of a trial never struck me as highly relevant to the issue, but I suppose that's as good a reason as any to retain juries for civil trials. But at the very end of his reply, this se- nior litigator made the most telling state- ment: "If the government decides to abol- ish juries, then I would suggest people should get ready for their insurance pre- miums to double." I suspect that's really the nub of it. Juries benefit insurance companies. Osborne's "unfortunate reality" ref lects that fact. But it isn't only defence lawyers in mo- tor vehicle litigation who sing the praises of civil juries. Some medical malpractice plaintiffs' lawyers also seem to favour civil juries. Of course, that would have nothing to do with the fact that juries seem to fa- vour plaintiffs in medical malpractice liti- gation as compared to judges. It appears lawyers seek to have a jury trial when they believe it presents their clients with a litigation advantage of some sort. But serving a jury notice is a tactic that does little to serve or further the ends of justice. Whether or not we ought to ban jury trials for all civil litigation or only for certain categories of it is a debate that's long overdue. But please, let's leave the Magna Carta and my credentials out of the debate. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. I Social Justice Alan Shanoff M

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