Law Times

Law TiMes • May 3, 2010 FOCUS PAGE 11 about the impact of the new Rules of Civil Procedure, Derek Leschinsky at Borden Ladner Gervais LLP in Ottawa doesn't yet see a major change in per- sonal injury actions as a result. Leschinsky says that in Otta- wa, counsel have generally been able to accomplish what they need to in seven hours. Where additional time is necessary, lawyers have been reasonable in agreeing to requests. An interesting observation Leschinsky makes is the fact that discovery plans aren't always be- ing concluded or included be- cause counsel are struggling with the extra cost. "A lot is going to depend on how Rule 29.1.05 is interpreted. It says the court can or may refuse relief or deny costs. Th ere really hasn't been a lot of interpretation of this word 'may.' For purposes of keeping costs down, in some cases counsel are foregoing the discovery plan and expecting that they will be able to agree with one another. "Th ese are cases where we think the opposing counsel would be reasonable in the time limits if we need to go over or that it is a clear case where agreement could be accomplished in seven hours." Leschinsky sees benefi ts for de- fence counsel. "Previously, there wasn't much room to look further into the medical evidence of the plaintiff , and it was prohibitively expensive to bring a motion for a further and better affi davit of documents. So now under the Rules, the two hours give you a brief opportunity to simply ask the plaintiff a few more questions about the medical record. We see it as a benefi t with respect to giving insurer clients advice with respect to making and accepting settlement proposals." In Toronto, plaintiff lawyer Tammy Ring at Lerners LLP says it's so early in the new Rules that people are still feeling their way around. "I think the big change is having to have a discovery plan and to think about your case at a very early stage, really at the point of pleading. Not that we wouldn't have been doing that before, but now you really need to think about what it is you are looking to accomplish. "A case we might have pled more broadly before, you might want to look at more narrowly, not just in the amounts but the claims advanced. If your case is a million-dollar case, you are going to have broader discovery. I don't think the time limitation is going to be a problem for plaintiff s ex- amining defendants in personal injury cases, but where there are a lot of parties it will become a problem." Ring says one benefi t is the parties now have the opportu- nity to resolve the case between them through case management. At this point, she hasn't really seen major problems because of Carthy_OAP Interim (LT 1-2x4).indd 1 www.lawtimesnews.com Reasonableness key to success under new Rules W BY SUSAN HUGHES For Law Times hile it's early days still and many law- yers are hesitant stage, to keep them moving along without having it managed by the courts the way it would have been under the old Rules." One diff erence Ring cites is 'Everyone is being co-operative so far. People are trying to work it out together,' says Tammy ring. working relationships that are al- ready in place. "It's really hard to know how it's going to unfold," she says. "Everyone is being co- operative so far. People are trying to work it out together. It looks like a good framework for us to think about our cases at any early the increase in the simplifi ed procedure limit to $100,000. She says it's a diff erent track that personal injury lawyers will need to consider early on. For some cases, it's obvious what track they should be on, but for others it could be hard to tell. So the issue isn't just consider- ing what kind of case to litigate but which track to choose. In his practice, one strategy Leschinsky prefers is to make a short telephone call, which he tries to keep under half an hour, followed by a letter to the parties documenting the con- versation. "I fi nd that's expedi- tious to sending out a unilateral proposal and saying, 'Will you accept?'" Key to success under the new Rules is reasonableness. "Unco- operative counsel are always a Announcing a special Interim Edition Ontario Annual Practice 2010 Interim Edition Includes the new amendments to the Rules of Civil Procedure! Major amendments to the Rules of Civil Procedure came into effect January 1, 2010. 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T BONUS: wo Editions for the price of one! 2/17/10 1:46:01 PM risk," Leschinsky says. "I think the way this is going to be evalu- ated by the courts is that they're going to look at who is being reasonable. Th ey will approach requests for additional discovery on a reasonableness assessment. If someone is sticking to the literal wording of the Rules and is try- ing to keep it at or less than seven hours simply to frustrate the dis- covery process, the courts will not look too favourably on that." But Leschinsky does have an important question. "Th e only thing that remains outstanding is Structured Settlements BC LT 4/6/05 2:54 PM Page 1 how the court will be interpreting 'may' in Rule 29.1.05, what they will be saying to counsel about when relief will be denied, when costs will be denied if we haven't agreed to a discovery plan. If the courts take an approach that there must be some demonstrable justifi cation for not doing a plan, or relief will be denied, certainly counsels' practice will change. But if there are some other conse- quences or if the courts are looking at this in a diff erent way, counsel are going to shape their behaviour accordingly." LT The Lat e Honourable Jus Der r y Millar and Jef tice James J. Car an f G. Co w t h y

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