Law Times

Page 4 March 16, 2015 • Law Times www.lawtimesnews.com Judge hammers home lawyers' duty to quicken the pace Myers becoming champion of efficiency as he focuses on 'culture shift' By yamri Taddese Law Times n the quest to reduce litigation time- lines, at least one Superior Court judge is coming out as a champion of the cause. "Justice [Fred] Myers definitely seems to take up the banner on this," says Cas- sels Brock & Blackwell LLP's Christopher Horkins. "He's really taking his role in this new civil practice court very seriously." Myers hammered on the point about the need to avoid delays in civil litigation proceedings in a recent ruling in Pinto v. Kaur when he awarded costs against the party that had won a settlement but had been tardy in responding to undertak- ings. "Had [the defendant] fulfilled his un- dertakings given in December, 2012 or just made disclosure as requested and agreed, the whole motion would never have been necessary. Waiting to leisurely fulfill undertakings until trial prepara- tion begins in earnest is no longer suffi- cient," wrote Myers in his March 2 costs decision. While awarding costs against parties that win their matters isn't new, Horkins says lawyers will see more such situations from now on as judges consider the in- creased emphasis on timeliness in their decisions. "In this case . . . this motion did not need to happen," says Naomi Greckol- Herlich, a criminal and civil litigator at Stockwoods LLP. "It's not a question of whether it hap- pened in poor fashion; it didn't need to be booked at all. It just prolonged this particular process. And, of course, costs are a discretionary award, so it's certainly within a judge's purview to, with their award or non-award of costs, make spe- cific statements as to the conduct of the parties in a litigation," she adds. Part of that statement was that law firms should no longer wait until the eve of a trial to freshen document production and fulfil undertakings as they've often done in the past. That approach made sense as a way to defer avoidable costs in case the parties reached a settlement at a pretrial conference, Myers noted. "But pre-trials are no longer neces- sarily going to happen in the post-Hryn- iak environment," he wrote, citing Hryn- iak v. Mauldin. "Moreover, nothing can just wait any more. Counsel must be proactive in all steps to bring each action to the most ef- ficient and affordable resolution." Myers' ruling comes amid changes the Superior Court is making to curb motion delays and speed up proceedings. They require "a cultural shift" that includes let- ting go of the assumption that trials are the default process in civil litigation, ac- cording to Myers. Lawyers may have to take on fewer cases at one time if they're going to re- solve each one more quickly, he noted, adding counsel should also leave room in their schedules to respond to "more aggressive scheduling that arises in some cases on the sudden." He added: "Similarly, document pro- duction and fulfillment of undertakings must occur in a more timely way. These steps cannot be left for months with the thought that the case is slowly climbing its way up a multi-year trial list in any event. That is no longer the case. That's the old way. It failed." The ruling is one of a series of deci- sions in which Myers has denounced the "old brain thinking" that trials are the de- fault process. "The traditional notion that only a trial can provide civil justice led to a cri- sis whereby most Canadians could not afford civil trials and hence were being denied access to justice," he suggested in another recent decision in Baghbanbashi v. Hassle Free Clinic. Myers' stance fits in a new trend that follows the Supreme Court's ruling in Hryniak, says Horkins. "The legacy of that case [is] extending to much more than summary judgment, which is what it was focused on. It's really turning out to be more about changing the culture of civil litigation, the culture of the bar, and the way that the courts work in favour of getting to faster and cheaper resolution of cases," says Horkins. "The Supreme Court basically issued a warning shot to the bar and the courts throughout Ontario and throughout the country that something needs to change," he adds. "I think it's a very good thing. Based on the modest changes the courts have made so far, they've seen a huge reduction in the delays in the system." An excerpt from the Supreme Court's ruling in Hryniak is fast becoming one of the most-cited sets of words from the top court, lawyers point out. "Ensuring access to justice is the great- est challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadi- ans cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial," the excerpt, cited at the top of Myers' rul- ing in Pinto, reads. "Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudica- tion of civil cases, the development of the common law is stunted." The popularity of that view shows the concerted push towards greater access to justice, says Greckol-Herlich. "It's a signal that everybody in the legal community is charging toward the same end. Every- body is concerned about access to justice; everybody is concerned about how to make best use of scarce judicial resources. We're all in this together." LT NEWS RE-ELECT CHRISTOPHER BREDT BENCHER ( TORONTO ) Chris led climbs of Mt. Kilimanjaro in 2006, 2010 and 2014 that raised over $2 million for CODE's (Canadian Organization for Development through Education) children's literacy programs in Tanzania. 416.367.6165 • cbredt@blg.com • BredtForBencher.com A Track Record of Reform Chris is a thoughtful and courageous member of our profession. He is knowledgeable, dedicated and willing to listen. Even lawyers who may disagree with him at times know that they can count on his integrity. He has my vote. Nathalie Des Rosiers | Dean, University of Ottawa Law School I have known and worked with Chris for many years. He is an excellent counsel who practices law with integrity and the highest standards of professionalism. He is ideally suited to continuing to serve our profession as a Bencher. The Honourable Dennis O'Connor Q.C. | Counsel BLG For close to twenty years, Chris has been a mentor and sponsor, connecting me to his network, offering advice and advocating on my behalf. He takes his role as a champion seriously because he understands the professional challenges that many women face. I am delighted to support his candidacy for Bencher. Deborah Gillis | President and CEO, Catalyst Untitled-1 1 2015-03-11 7:48 AM Janet E. Minor Candidate for Re-election as Bencher (Toronto) Vote for judgment, experience and progressive change. From the public sector: committed to serving the profession. www.janet4bencher.ca Bencher candidate (Toronto) Current Treasurer Vote for continued leadership: • Consultative • Experienced • Energetic Committed to serving the profession in the public interest. www.janetminor.ca JanetMinor_LT_Mar9_15.indd 1 2015-03-04 11:06 AM I Contact $BSTXFMM.FEJB4BMFT@thomsonreuters.com for details. RECRUITING? POST YOUR POSITION ON GREAT RATES. GREAT REACH. GREAT RESULTS. Untitled-6 1 14-06-17 'It's a signal that everybody in the legal community is charging toward the same end,' says Naomi Greckol- Herlich.

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