Law Times

Page 6 April 13, 2015 • Law Times www.lawtimesnews.com counsel told to let 'sleeping dogs lie' in dormant files Fees referred to assessment after judge finds lawyer pushed case forward By yamri Taddese Law Times f clients want to let "sleeping dogs lie" in dormant legal matters, their lawyers may be wise to uphold those wishes instead of taking a series of ex- pensive steps that may prove unnecessary, a Superior Court judge has found. "If a matter is destined to die on the vine, a defendant need not water it," wrote Justice Sean Dunphy, who criticized a To- ronto lawyer for insisting on an aggressive defence in a dormant neighbourhood land dispute. "I pause here to note that in the post-Hryniak world, letting 'sleeping dogs lie' may seem counter-intuitive," said Dunphy, citing the Supreme Court's deci- sion in Hryniak v. Mauldin, in a ruling authorizing the referral of lawyer Ben Hanuka's account for assessment. "However, this defendant in lawsuit of his neighbour's confection which was threat- ening to consume many thousands of dollars in legal fees on an issue whose value may objectively be a fraction of that amount, could well decide that a 'wait and see' approach is more appropriate than shaking a tree as vigor- ously (and expensively) as possible to see whether the plaintiff will make an advan- tageous settlement offer or to decide to fold his or her tent and go home." In his ruling in Markovski v. Hanuka, Dunphy also em- phasized the importance of resolving matters as efficient- ly as possible. "Effective litigation is no longer scored by the num- ber of motions brought but by the efficiency with which a dis- pute is resolved. If a matter is destined to die on the vine, a defendant need not water it," he wrote. But in Hanuka's view, the judge's statements are akin to endorsing delay tactics. "When it is clear that your opponent is not going away but is taking its time, it is not necessarily good to be pas- sive and let your opponent drive the case," he says. "When it is clear that the plaintiff is moving ahead with discoveries and a cli- ent's instructions are unrea- sonable, you have to decide if you will play delay tactics or get on with the case." Hanuka says modern litigation standards require counsel to fully assess the case and evidence from the outset and "not as an afterthought." "Gone are the days when counsel started to really think about a case for the first time after discoveries," he says, noting the work he did on this particular file included ongoing demand correspondence with the plaintiff 's lawyer, extensive legal research, and successfully persuading counsel for the other side to pursue separately an ac- tion in the same matter involv- ing other defendants. "The issue is not if discoveries would be held but when," adds Hanuka, who says the plaintiff 's lawyer was actively looking to set discoveries. He also says it's wise to move the case along sooner rather than later since it's important for counsel to get off the record as quickly as possible if the rela- tionship between the lawyer and client breaks down. But to Dunphy, it appeared Hanuka's letters to his client, in which he asked for another retainer and warned about the consequences of not aggressive- ly defending the matter, showed signs of pursing an action for its own sake. In one of his letters, Dunphy noted Hanuka had suggested his client's failure to force the plaintiff to act might lead the other side to "smell blood." "There are at least some grounds to suspect that the respondent solicitor has been more concerned to create ac- tivity than to ascertain and ad- vance his client's interest. Litiga- tion strategy must consider the objectives and the means of the client in light of the importance of the issues to the client," wrote Dunphy, who found Hanuka's letters were a sign of a lawyer seeking to pursue a more ag- gressive course than his client "wanted or needed." Hanuka, however, calls the judge's words harsh and unfair. "To harshly admonish coun- sel personally and suggest an unethical or ulterior motive is adding insult to injury," he says. "The hearing was less than 30 minutes. The written decision, a relatively long one, was released within hours on the same day. I fear a reasonable person reading it may think someone had an axe to grind." But Toronto civil litigator Allan Rouben says he found no fault with the judge's findings. "The issue was what was the best way to conserve the client's resources," he says. "At the end of the day, it's the plaintiff 's responsibility to move a case forward," he adds. "I think a lot of defendants faced with dormant cases and limited financial resources might instruct a lawyer to wait and see." This is especially true, ac- cording to Rouben, considering the fact that in this case the par- ties had exchanged pleadings but the plaintiff had yet to file an affidavit of documents. "Personally, I don't see much of a problem with what the judge has said within that con- text," says Rouben. LT ARE YOU… Considering retirement? Or semi-retirement? Or do you still love working but wish you had 30% fewer files? YOU SHOULD CALL US We should be talking about: x How we can handle your referral work x Flexible work-sharing arrangements to allow you to ease your way to retirement x Better work/life balance in a manner which will ensure that your clients' needs are looked after. We have successfully worked with personal injury lawyers, in the past, to facilitate a smooth transition into retirement. We are COMMITTED to bringing our litigation services TO your CLIENTS wherever they may be. TORONTO 1400-220 Bay Street 416-360-1194 OAKVILLE 4–1464 Cornwall Road 905-337-9568 HUNTSVILLE 322 Muskoka Road #3 North 705-788-3740 MIDLAND 543 Yonge Street 705-527-8750 LINDSAY 206A–189 Kent Street W. 705-324-6518 ORILLIA 102-32 Matchedash Street N. 705-330-0370 MARKHAM 305 Renfrew Drive 905-415-8900 BURLINGTON 562 Maple Avenue 289-816-0657 WHITBY 105 Consumers Drive 289-278-1823 WillDavidson-1/2_LT_Apr13_15.indd 1 2015-04-08 4:25 PM NEWS 'To harshly admonish counsel personally and suggest an unethical or ulterior motive is adding insult to injury,' says Ben Hanuka. I

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