Law Times

Law Times • OcTOber 3, 2016 Page 9 www.lawtimesnews.com Ignoring best practices can mean cost consequences BY JUDY VAN RHIJN For Law Times P redictions that the courts will use best practice models as a method of enforcing good advocacy practices appear to be coming to fruition, with judges using the models in de- termining recent decisions and costs orders. Proponents of the Advocates' Society Best Practices, released in June 2015, are hoping this trend will force civil litigators refusing to follow the recom- mendations to adjust their prac- tice style. "We need to establish a body of cases where best prac- tices were not followed and cost sanctions followed," states Brian Gover, former chairman of the Civil Trials Task Force, which formulated the Best Practices for the Advocates' Society. "Best practices can be a tool for the court for enforcing good behaviour." A recent example was Stuart Budd v. IHC Vehicle Distribu- tors ULC, 2016 ONSC 3798, a case presided over by Associate Chief Justice Frank Marrocco. Marrocco had challenged the Advocates' Society to produce the best practices in the first place, and endorsed them in a speech in late 2015, saying he believed it would "be the bench- mark for how civil trials are to be efficiently conducted." In the Budd case, he was de- termining costs in relation to a claim that the defendants had shown the plaintiff 's affidavit was deficient. He referenced the fact that they had two chances to cross-examine without raising the deficiency before arguing the matter. "[T]he defendants were en- titled to conduct themselves in this fashion but I decline to re- ward them for it. It was foresee- able that the likely consequence of such behaviour would be nothing more than an adjourn- ment coupled with a direction to the plaintiffs to correct their affidavit," said Marrocco. "In this regard I endorse the Ad- vocates' Society's Statement in its Best Practices Applicable to Motions." It is evident, from the day-to- day experiences of civil lawyers, that there is a need for these kinds of judgments to increase the take-up of best practices. Darren Smith of Humming- bird Lawyers LLP in Concord, Ont. estimates that about 70 to 75 per cent of counsel are engag- ing in some form of best practic- es, whether it be the Advocates' Society rules or something else. "Unfortunately, there are still a large number who don't, and that is creating more complications and is mak- ing matters more adversarial than they need to be," he says. "It causes delay and frustration with the whole process, not only for me but for my clients." Michael Lesage, principal of Michael's Law Firm, agrees that 60 to 70 per cent of opposing counsel are quite reasonable. "They have some interest in working with you to minimize costs and time. Thirty per cent of opposing counsel are not talking to you in any construc- tive manner," he says. When best practices are ap- plied, Smith finds them to be highly effective. "I have been implementing best practices at all the various stages and, as a result, I haven't had to go to trial," he says. "I've only made it partway through by taking advantage of the di- rections. When my opponents do the same, things actually proceed very efficiently and ul- timately work out to the benefit of the courts, the practice and the clients." Patricia Virc of Steinberg Ti- tle Hope & Israel LLP of Toron- to says this is part of the prob- lem of applying best practices in everyday practice. "You need the co-operation of other counsel and you need clients to invest more heavily upfront rather than at the end when they go to trial," she says. "You will never persuade a client that they will ultimately pay less if they pay more at the beginning, and you can't guar- antee that strategy will work un- less the other side is going along with it." Lesage has yet to see any im- provement in the court system itself. "The Advocates' Society re- port is a step in the right direc- tion, but I haven't seen it imple- mented. It's not changing our archaic system in any manner. To the extent that it's been put in book format, it's an effective paperweight," he says. Despite this, he thinks the best practices are on the right track. "I practised first in the U.S. system. A lot of what's proposed in the [report] is already in place there. Cases tend to move much faster," he says. Virc says the take-up needs to go beyond the bar and bench. "Best practices will always be used by some counsel and will never ever be used by others. It turns on the availability of case management and the will of the government to make that more available," she says. "Lawyers write about best practices but can't dictate that the system or the structure will be there. The structural system is not yet prepared for best prac- tices." There may be some hope of change in the courts given that the Conference of Chief Justices has just endorsed the Call to Ac- tion and Recommendations of the Civil Justice Improvements Committee. These say that each civil case must be assigned to a case management pathway. Innovative uses of technology are also highly encouraged as a means to meet the enhanced demands of "right-sized" case management. Even without changes in the system, Gover can point to in- stances where the best practices have already been used or at least referred to. "One example is in assign- ing judges to long trials well in advance. Sometimes, that's not possible, but instead, there has been support for the as- signment of a case manage- ment judge who, with the consent of both parties, can also be the trial judge," he says. "It is an example of the bench and bar co-operating to capture the spirit of the report, even if they can't comply." In the area of technology, Gover has seen an increase in the use of telephone appoint- ments with judges to resolve procedural matters. "That is part of an overall trend to greater informality that the best practices has contrib- uted to," he says. He also refers to an increase in the use of videoconferenc- ing, particularly in the case of Chandra v CBC 2015 ONSC 5385, in which Justice Graeme Mew specifically referred to best practices when allowing a request for witnesses resident outside Canada to present evi- dence by videoconference. In his reasons, delivered after the trial had actually occurred, he said, "The entire experience was, from the perspective of this trial judge, entirely satisfactory." Gover also knows of a recent appeal in the Divisional Court where three judges were provid- ed with computers by the par- ties, fully loaded with the neces- sary documents and hyperlinks. Assistant Chief Justice Mar- rocco has related a similar in- stance where a party provided the judge with a laptop com- puter with all the documents organized on it. A technical person from each law firm came to meet with the judge, without lawyers present, and explained how to use it. The laptop was re- turned at the end of the trial. "We always knew the im- plementation of the technol- ogy recommendations would be incremental," Gover says. "There are limitations on court resources, and some judges are more comfortable than other judges. It is gratifying that there are great proponents of technol- ogy in courts, such as Justice Art Gans and Justice Frank New- bould, and the new Attorney General Yasir Naqvi, who sees digital innovation as one of his top three priorities." LT FOCUS Michael Lesage says an Advocate's Society report on best practices is a 'step in the right direction.' Tel: 905-841-5717 www.bolandhowe.com The Proof is in The Precedents (TBI Verdict) – Pelletier v. Ontario – [2013 ONSC 6898] (TBI Verdict) – Roycroft v. Town of East Gwilimbury – [1999 CarswellOnt 233] When it's Complicated. "The fortunes of the world are in no way distributed equally. Neither are the misfortunes. Unpacking the physical, emotional and psychological sequelae of the accident from Jerry's pre-existing issues is not an easy task. But it is one faced by the Court in this instance." Pelletier v Ontario Untitled-3 1 2016-09-28 11:22 AM Best practices will always be used by some counsel and will never ever be used by others. It turns on the availability of case management and the will of the government to make that more available. Patricia Virc

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