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Law Times • November 29, 2010 love, soldiers told I f this keeps up, we'll have more officers in military seems more fine, up- standing Canadian officers are caught with their pants down in some distant part of the world. In private life, getting caught sleeping around with somebody else's spouse at the law office is more likely to be chatter for the after-work cocktail hour than a cause for you to lose your job. Certainly, nobody goes to jail for adultery. We aren't in Iran here. That's a problem worked out between spouses at home or, failing that, a job for a good divorce lawyer. But the Canadian military sees things very differently, it seems. Our former top soldier in Afghanistan, Brig.-Gen. Daniel Ménard, has lost his job and faces 40 years in jail plus a dishonourable discharge. He's set for a court mar- tial next year. And for what? For sleeping around with a subordi- nate officer, the charming and pretty Master Cpl. Bianka Langlois, for about five months while in Afghanistan, the military says. The military's code of conduct forbids soldiers in the battlefield from having romantic relations with other sol- diers, even with their spouses. The rule is supposedly there to prevent favouritism — as if that's something that doesn't already exist in the military. The country sends our soldiers over to Afghanistan for nine months at a time expecting them to behave like monks. Even judges allow sequestered jurors to see their loved ones once in a while. There was a time in the military, back during the Sec- ond World War, when going on leave meant visiting the medic who handed out a condom and wished the soldier good luck. People had a different understanding of hu- manity then. But now Ménard is facing two charges of conduct prejudicial to good order and discipline plus a charge of obstructing justice. For good measure, the military laid three more charges of obstructing justice but it won't give details. Each ob- struction charge carries a maximum sentence of 10 years. Of course, in light of Prime Minister Stephen Harper's hardline agenda, Ménard could be looking at four con- secutive 10-year sentences. Ménard's lawyer, Lt.-Col. Troy Sweet, says the charges won't stick. In the meantime, Ménard's career is over. The military is really throwing the book at Ménard. The Judge Advocate General folks must have been work- ing overtime on this case. It's too bad. Ménard was what they call a soldier's sol- dier. He has been in the military for 26 years and was set to come back this year to head the Canadian army in Quebec. Now his career is in ruins. Ménard isn't the first soldier to face such a situation. Last June, the military removed Col. Bernard Ouellette from his command in Haiti. His crime involved having an inappropriate relationship with a civilian, not another soldier. Even civilians are now off limits. Later, the military demoted Lt.-Cmdr. Tina Hanratty, an officer aboard HMCS Moncton, to a desk job for al- leged inappropriate conduct. We all know what that means by now. Her husband is Lt.-Cmdr. Niall Hanratty, commanding officer of HMCS Shawinigan. My suggestion is to have each spouse get a ship and set- tle the matter with a war game. May the best spouse win. Where does the military's ideology against romance come from? Is it the military brass who have forgotten what it was like when they were young? Or is it from a self-righteous, religion-minded federal government? The irony is that in Canada's military, you can hand over Afghan prisoners for torture; you can bomb Afghan villages at night; and you can shoot the enemy all you want without getting a court martial. But if authorities catch you making love even once, that's it. Your career is over. And then people wonder why so many soldiers com- ing back to Canada have psychological problems. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. Make war, not The courts than on the battlefield. Every month, it Hill By Richard Cleroux ogy of litigation develop, the rules used to put their underlying principles into practice must adapt. On Jan. 1, Ontario's Rules of Civil Procedure re- T ceived an extensive overhaul in response to concerns about the inadequacies of the litigation system, includ- ing inefficient procedures, excessive costs, a lack of ci- vility among advocates, long delays, and a backlogged and insufficiently resourced judi- ciary. After former associate chief justice Coulter Osborne's report on civil justice reform brought these and other concerns to light in 2007, the provincial govern- ment implemented the recent amendments to adapt the Rules to embrace two core principles: proportionality and professionalism. Perhaps the most heavily litigated aspects of the changes are those to Rule 20 related to sum- mary judgment. The new rule establishes a standard whereby summary judgment is available if "there is no genuine issue requiring a trial with respect to a claim or defence." Still, in Healey v. Lakeridge Health Corp., Superior Court Justice Paul Perell, after reviewing the history of Rule 20 and the 2010 amendments, noted that "semantically, there is not much difference between 'no genuine issue for trial' and 'no genuine issue re- quiring a trial.'" Further, the court in Hino Motors Canada v. Kell held that the test for summary judg- ment has not changed as a result of the amendments and remains the same as it was in the 1991 case of Irving Ungerman Ltd. v. Galanis. The change did, however, permit the court in Hea- ley to consider "the determinant of whether a trial is genuinely necessary, not because it is to be given some preferred status in the administration of justice, but because the issues to be resolved cannot be truthfully, fairly, and justly resolved without the forensic ma- chinery of a trial." The new rule gives judges expanded powers to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence unless it is in the interest of justice that such powers be reserved to trial. This constitutes a statutory reversal of the case law that held that a judge cannot exercise such powers on a motion for summary judgment. The new Rule 20.06 establishes a permissive costs sanction restricted to cases in which the party acted unreasonably in making or responding to the motion or acted in bad faith for the purpose of delay. This amendment replaced the former provisions associat- ed with moving for summary judgment and permits litigants to bring motions in good faith to dispose of all or part of an action without fear of significant cost consequences. Another focal point of the Osborne report was the issue of discoveries. Often the most time-con- suming aspect of litigation and perhaps the most susceptible to abuse, the discovery process was felt to be overly broad and in need of refinement. The recommendations set out in the Osborne report, which the government adopted as part of the new Rules, include a limited scope of relevance; a time limit of seven hours for a party to conclude all ex- aminations for discovery with extensions available on consent or with leave of the court; the require- ment of a written discovery plan; and codification of the proportionality principle in examinations for discovery. These changes have, thus far, received very little judicial consideration. As well, the time limit of seven hours operates re- gardless of the number of witnesses or the complexity of the issues in the action and has been interpreted, as in J. & P. Leveque Bros. v. Ontario, to mean "seven hours of actual discovery on the record" exclusive of "breaks, adjournment or, in addition to the conduct www.lawtimesnews.com COMMENT PAGE 7 Assessing the first year under the new Rules BY CAROLE J. BROWN AND STEVEN KENNEDY For Law Times he practice of law, for better or worse, is a crea- ture bound by an immense set of rules that are not frozen in time. As the culture and technol- Speaker's Corner described in Rule 31.05.0(e) and (g), unreasonable interference in the questioning process by opposing counsel." The imposition of time limits on examina- tions for discovery should be applauded as a positive step in addressing concerns about the process being excessively long and expensive. The amendments also impose the requirement of a written discovery plan. The process of agreeing to and updating the plan will necessarily involve discus- sions about the scope of discovery and the issues to be canvassed; evidence required to be produced; and other information intended to result in the expedi- tious and cost-effective completion of the process in a manner that is proportionate to the importance and complexity of the action. The new amendments con- tain a specific provision, Rule 29.2.03, requiring proportional- ity in the discovery process. The new Rules clearly rein in counsel during the discovery process by imposing procedural restrictions, focusing on obtain- ing key evidence, and limiting the possibility of fishing expeditions where possible. Further, the amendments echo The Advocates' Society's principles of civility and professionalism for advocates, including the notion that "advocates should not engage in examinations for discovery that are not necessary to elicit facts or preserve testimony but rather have as their purpose the imposi- tion of a financial burden on the opposite party." While it is too early to tell how significant an impact the discovery amendments will have on litigation in Ontario, particularly with respect to proportionality and professionalism, they imple- ment sweeping changes to the process followed in the past. In addition, the rules regarding expert evidence were amended in three important respects to reflect recommendations in the Osborne report dealing with expert bias, the number of experts per party, and time limits for the delivery of expert reports. The Rules now explicitly state that experts' duty is to the court over and above any obligation to the party who retained them. The amendments require litigants to incur increased expenses in advance of pretrial conferences to obtain often-costly reports in order to comply with the new timelines for exchanging them beforehand. While this adds additional expense in all cases, it is not necessarily negative. The requirement may augment proportional- ity as pretrial judges armed with the parties' respective expert reports will be in a position to provide better opinions at an earlier stage of the litigation. Finally, the changes amended simplified procedure under Rule 76 to incorporate the new standards of rel- evance discussed above and increase the monetary ju- risdiction to $100,000. The new rule also permits lim- ited discoveries of two hours in total. As noted in the Osborne report, simplified procedure, an efficient and streamlined litigation process, should be applicable in more cases. The report stated that any increased costs resulting from the amendment are consistent with the proportionality principle when considered in light of the increased monetary jurisdiction. Overall, the amendments have not been in force long enough to draw any conclusive determinations about whether they have had their desired effect in bringing about positive changes to the litigation process and culture. While some of the changes have received significant consideration by the judiciary and members of the Ontario bar, many remain un- tested. What the past months have shown are hints and indications that the courts and the bar are will- ing to use the new amendments to address many of the problems in Ontario's litigation process and culture. However, it remains to be seen how success- ful they will be in resolving the issues identified in the Osborne report. LT Carole J. Brown is a partner in the Ottawa office of Bor- den Ladner Gervais LLP and former president of the Ontario Bar Association. Steven Kennedy is an associate in BLG's Ottawa office and a member of the commercial litigation and intellectual property practice groups.