Law Times

Page 8 March 14, 2016 • Law TiMes www.lawtimesnews.com FOCUS ON Litigation FOCUS it's back 2016 CANADIAN LAWYER'S LEGAL FEES SURVEY Complete the survey online at canadianlawyermag.com/surveys then check out the results in the June issue to see how your fees compare across multiple practice areas. Survey closes March 28 Watch for the results in the June issue! Untitled-1 1 2016-02-24 9:15 AM Fewer motions, less backlog result in better access to justice Civil practice court boosts the client's bottom line BY YAMRI TADDESE Law Times A year after the civil practice court was introduced at Ontario's Superior Court with the view of limiting unnec- essary motions, lawyers say the culture shift is resulting in "ac- tual dollars being saved." The civil practice "was 100 per cent a brilliant initiative and it works like a charm," says Jac- queline King, a partner at Shibley Righton LLP. Talking to a judge informally about small requests instead of making a formal mo- tion, results in a simple solution eight out of 10 times, King says. "What it saves our clients is this: It saves our clients me having to prepare [for a motion]. And no matter what anybody tells you, it takes a long time to prepare mate- rials properly," she says. King says she'd be skeptical of anyone who says they can pre- pare sufficiently for a motion in less than eight hours. "So that's eight hours at our downtown rates — everyone's rates, forget downtown — that people don't have to pay," she says, adding she can now "zip into court for 20 minutes to an hour" to speak to a judge and opposite counsel. "It encourages communica- tion with the other side because we don't want to be back there again. It encourages civility amongst lawyers. It prevents you having to spend a lot of time pre- paring for something that some- one could sit down and say, 'Is there a reason she shouldn't be entitled to this? If you can't come up with one, it saves our clients a lot of money," King adds. The Superior Court kicked off the last year with a new civil prac- tice court initiative, which saw judges doing what some called "motions-lite," an informal case management without requiring full-blown motions. Judges had earlier lamented an endless mo- tions culture, especially at the To- ronto Superior Court, that clogged up the system and dragged out cases. In 2013, the backlog meant lawyers were scheduling complex motions into 2016. The court introduced the initiative with the view of re- ducing backlogs and ultimately improving access to justice. The initiative was consistent with the Supreme Court of Canada's landmark decision in Hryniak v. Mauldin, which encouraged judges to broaden the test for summary judgment. The fact there are fewer mo- tions now means cases are mov- ing along more rapidly, says James Morton, a civil litigator at Morton Karrass LLP. "You're able to get motion dates faster and cases are not dragging the way they seemed to be," he says. "I'd say there's a discernable improvement on the speed things are moving." The effect of that on costs to the client has been two-fold, Mor- ton says. "One, if things move quicker, obviously the costs are incurred more quickly. If it's going to cost $60,000 over three years or $60,000 over two years, you're pay- ing more per year," he says. But, "my sense is it has overall lowered the total cost of litiga- tion because of two things: One, there are less missed court days. It used to be not uncommon to go to court, sit there for the day, and leave without being heard," Mor- ton says. Even if lawyers brought other work to court to make use of the waiting time, there was a cost that was "simply lost" and the client bore that cost, he says. "The other, and I think more important, impact of more rapid cases is that it focuses people's minds on the cases earlier and leads to an earlier resolution," he adds. "If you are dealing with a case that can be resolved by having a motion earlier, the sort of pro- cedural stuff faster, there's less dead time, if you like," Morton says. "I think that does have another material advantage in terms of settling cases and get- ting the costs held down." King says, ultimately, fewer motions and less backlog in the courts is resulting in improved access to justice. "To me, access to justice is ac- cess to a judge and if you can get in on these quick hearings, you have access to a judge," she says. "Any time you can sit eyeball to eyeball with a judge, you're hav- ing access to justice." Morton says he expects courts will be building on this change in 2016. "Doing more with less, I think, is the theme, and I sus- pect we're going to improve it as much as we can," Morton says. He adds there is, of course, only so much judges and lawyers can do with the limited resources available to them. If he could have it his way, Morton says the Ontario Supe- rior Court would have 40 more judges. "That would make a very big difference. But again, you have to respect the fact that 40 Superior Court judges is a mam- moth investment and something that would take away from other things. So it's a balance." David Sterns, vice president of the Ontario Bar Association, says it's far too early to declare victory when it comes to difficulties in civil courts. Unfortunately, On- tario's civil court system is still antiquated and relies on paper filings, Sterns says. "I think the profession needs to start to make some more noise. We've been far too patient, far too docile, far too tolerant of what's really an unacceptable court practice," he adds. King couldn't agree more. It's a shame lawyers still have to drag around boxes and boxes of paper to court, she says, adding an ef- ficient electronic filing system, which is long overdue, is "the next big problem to tackle." "Controlling electronic evi- dence should no longer be a topic in 2016," King adds. LT Jacqueline King says she'd be skeptical of anyone who says they can prepare sufficiently for a motion in less than eight hours. I think the profession needs to start to make some more noise. We've been far too patient, far too docile, far too tolerant of what's really an unacceptable court practice. David Sterns

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