Law Times

PAGE 8 COMMENT MAY 26, 2008 / LAW TIMES "We have met the enemy and he is us." — Walt Kelly in Pogo Osborne remarked that "cost and delay . . . continue to be cited . . . I Who's to blame for this state of affairs? Social n his November 2007 report on civil justice reform, former associate chief justice Coulter as formidable barriers that prevent average Canadians from accessing the civil justice system." Earlier this year Chief Justice Warren Winkler observed, "There is no fair settlement when one of the parties can't afford to litigate." Even wrongful dismissal litiga- tion, which is hardly brain surgery, has become so expensive that "the public is being denied access to the legal system," according to Wink- ler. Court of Appeal Justice Michael Moldaver was recently quoted be- moaning that the criminal justice system is flawed by "interminable delays and marathon-like trials." So, who is to blame for this sad state of affairs? I'm sorry to say it but lawyers must col- lectively share the blame. Take the typical wrong- ful dismissal action. Isn't it odd that almost every claim is said to be deserving of Wallace damages, or dam- ages for mental distress, or punitive damages? How often do you get an affidavit of documents that is truly complete? Sometimes they list documents that have no relevance to the case but more often than not they are incomplete. Have you ever conducted a discovery only to find that the per- son being examined hasn't been properly prepared? The discovery is a series of undertakings, "I don't knows," and "I don't remembers." And where did the practice of taking questions under advise- ment come from? It's bad enough when the witness cannot answer obviously relevant questions, but does counsel have to compound the sin of ill-preparation by refus- ing to give any undertakings? How many lawyers use a dis- We're advancing to new levels in the printing technology industry to offer our customers the highest quality and most diversifi ed services. Watch for future details coming your way. Dye & Durham is ADivision of The Cartwright Group Ltd dyedurham.ca • 1-888-393-3874 • Fax: 1-800-263-2772 By Alan Shanoff ing motions. Plaintiff's counsel was just following his instructions! This is an extreme example of what hap- pens when lawyers are not strong enough to stand up to their clients. One of the hardest things for law- yers to do is to warn their clients that they must engage in the litiga- tion with courtesy and civility. How many lawyers commence Justice actions before undertaking a ful- some examination of the facts? Is it appropriate to rely on bald accusations brought forward by your client without making any effort to test the accusations? And, when you find that the allegations are baseless, do you hold out for at least a nuisance settlement? How many lawyers engage in covery to show how tough they are or to show off in front of clients? These practices lead to wasted time at discoveries plus unneces- sary motions. It's the parties that can ill-afford the costs of litigation that suffer when they cannot afford the costs of the motions or the ex- tra attendances at discoveries. How many lawyers blame their conduct on the clients? "I'm just fol- lowing instructions," is no excuse for sharp or unprofessional practi- ces. If the other side needs a reason- able indulgence, it must be granted. Client' trump professional conduct rules. In the Schreiber v. Mulroney litigation, defence counsel was not advised that pleadings would be noted closed in spite of outstand- s instructions can never Find out where the law is headed and what it means to you Labour Arbitration: The Year in Review 2007 Elaine B. Willis and The Honourable Chief Justice Warren K. Winkler, Chief Justice of Ontario An analytical review of key labour arbitration decisions and major trends in 2007 This annual resource provides a concise authoritative analysis of labour arbitration cases and judicial reviews over the course of the year from across Canada, identifies key developments and assesses continuing/emerging issues important to your practice. It is also the perfect compliment to your Labour Arbitration Cases (LAC) subscription. Labour Arbitration: The Year in Review 2007 provides a special in-depth analysis and discussion of the implications of: The . . under the Canadian Charter of Rights and Freedoms Key Supreme Court of Canada . Important recent Charter cases dealing with fundamental freedoms and legal rights . Also find thoughtful and insightful analysis of cases involving: workplace aggression . employees who have been disciplined for integrity-related misconduct such as conflicts of interest, breaches of the duty of fidelity and cheating toward co-workers, supervisors and the public . managing risk in the employment relationship including abusive conduct, incompetence and carelessness at the hands of employees . emerging issues such as judicial reviews, privacy, discrimination and the awarding of damages Labour Arbitration: The Year in Review 2007 — keeps you informed and knowledgeable about the issues affecting labour arbitration and your practice. www.canadalawbook.ca www.lawtimesnews.com WILLIS_Labour Arbitration The Year in Review (LT 1-3x4).indd 1 LT0526 . automatic termination clauses under the collective agreement and the role of such clauses in the duty to accommodate disabled employees . the dilemma of an arbitrator faced with conflicting statutory provisions, and the scope of "arbitrability" available when police officers are disciplined Supreme Court of Canada landmark decision regarding recognition of collective bargaining as a component of freedom of association decisions dealing with: delaying tactics, knowing that it will drive up costs in a hope that the other side will not be able to withstand a lengthy fight? In the recent case of Rand Estate v. Lenton the court ordered counsel to pay $63,150 in costs resulting from unprofessional conduct, including the use of delaying tactics and the bringing of unnecessary motions Have you noticed that plead- ings, particularly statements of claim, are getting longer? As some- one who started practising in the 1970s it's disconcerting to see pleadings that extend beyond 10 pages. Only the most complex of cases deserve lengthy pleadings, yet some counsel seem to think that verbosity can win cases. I think some of this comes from seeing pleadings from the United States, where the same facts are repeated several times and often with the use of colourful language. Our rules, however, require that material facts be pleaded. Argument, evidence, and irrelevant material must not be pleaded, yet it often is. This can lead to unnecessary motions and wasted time at discoveries. Could it be that some lawyers are drafting pleadings to please their clients? How many lawyers try to short- en trial time through the use of requests to admit and attempts to get either agreed statements of facts or agreed-upon exhibit books? Not enough, by my reckoning. Look, I think it's great that we are thinking about increasing mon- etary limits for simplified procedure and small claims court actions. It's good we are finally thinking about time limits on examinations for discoveries. The recommendations in the Civil Justice Reform Project are excellent, but unless we are pre- pared to look in the mirror and ask ourselves whether we are part of the problem, little will change. We also have to ask ourselves how we got here. How do young lawyers learn to engage in delaying tactics or take questions under ad- visement at discoveries? Maybe, just maybe, they learned it from us. LT Alan Shanoff was counsel to Sun Me- dia Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber Col- lege. His e-mail address is ashanoff @gmail.com. 5/21/08 10:49:08 AM

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