Law Times

Page 4 March 27, 2017 • Law TiMes www.lawtimesnews.com NEWS NEWS NEWS CCLA Gala 2017 FEATURING: EDWARD SNOWDEN via live video 2017 HONOREES: KATHERINE GOVIER JIM BRONSKILL PATRICIA GAGIC BEN MAKUCH MARGIE WOLFE ROBERTA BONDAR CRAIG FORCESE KENT ROACH ROBERTO MARTELLA IRWIN COTLER SHELAGH DAY LINDA BERTOLDI FRANCES WAITHE MARY SPENCER LISA BORSOOK DENNIS EDNEY YAVAR HAMEED BILL BOGART JASMINE AKBARALI URSULA FRANKLIN MEDIA SPONSOR APRIL 27, 2017 THE EGLINTON GRAND, TORONTO TICKETS AND INFORMATION: GALA.CCLA.ORG Join us to celebrate remarkable Canadian human rights and civil liberties activists from all walks of life Untitled-2 1 2017-02-21 9:56 AM selves, but I'm not sure that people would want to do that be- cause it is a complex and confus- ing area of the law," says Zingg. Under the tribunal's new rules, costs can be requested, but they will only be awarded in proceedings when parties act "unreasonably, frivolously, vexa- tiously or in bad faith." Lawyers say the tribunal has also been very rigid when it comes to having all documen- tation ready at the beginning of the process, which has caused many applicants to withdraw their applications. Heather Kawaguchi of Za- rek Taylor Grossman Hanrahan LLP says there have been ap- plicants who have been forced to withdraw their application because they do not have one document they need, and the tribunal's adjudicators have been unbending in not allowing adjournments. "And maybe they can get it tomorrow and maybe they can get it in a week, but because they don't have it now, they're being forced to withdraw. It's $100. That's not a huge amount of money, but it might be a lot for a claimant," she says. She says there have been a number of growing pains for both the LAT, as the tribunal sorts out its pro- you can just come to court and we'll help you." In the decision, Stratas said that very few mo- tions and applications have been brought in Federal Court under s. 40. The lack of applications in turn has led to little being said by the court on the matter, causing uncertainty and tepidness when it comes to filing these motions. "This is unfortunate," Stratas said. "Section 40 is an important tool to be used in appropriate circumstances in a timely way." Stratas said that while vexa- tious litigants are likely to launch multiple matters, law- yers can bring motions against them under s. 40 after a single proceeding. There is a perception among lawyers that applications under s. 40 are particularly laborious, but Stratas said they needn't be so. He added that lawyers do not need to provide an "encyclopae- dia of every last detail, about the litigant's litigation history" but an affidavit that provides relevant information, court decisions that describe their intentions and se- lected pleadings and documents. "What Justice Stratas is, I think, trying to say is that, given the sheer cost that these people impose on their opponents in litigation, you don't have to go overboard and throw in the kitchen sink when you're try- ing to get an order to have them declared as a vexatious litigant," says Kevin Toyne of Hill Sokal- ski Walsh Olson LLP. Stratas said that some courts on occasion have "characterized section 40 as being a drastic, last- resort option" that should be used sparingly because it will affect an individual's access to the courts. Stratas, however, said that be- ing declared a vexatious litigant does not completely ban some- one from court. They will just have to seek leave from a judge in the future in order to launch an action. Lawyers say the decision is an example of a cultural shift in a number of areas of the law to deal with backlogs after the Supreme Court of Canada's de- cision in Hryniak v. Mauldin. John Olah, a senior litigation partner at Beard Winter LLP, says the decision says that an older notion that a s. 40 applica- tion was one of last resort is no longer the case anymore. "In an age of court space and court time becoming a more and more scarce commodity, we have to ref lect that in our think- ing on making an order of this kind," he says. "So I think it's recalibrating or trying to re- think and reformulate the test a little bit. It's not a dramatic departure, but it's an interesting perspective on the problem and it lays out a road map as to how these kinds of motions should be brought under s. 40." Toyne says Stratas' decision provides a simple guideline in the hopes that those who have the propensity to become vexa- tious litigants will come across it and be deterred. When reached for comment, Olumide claimed Stratas created "a new application" and "falsified court documents." "e decision is a criminal code offence for which there is no judicial immunity," he says. "I have about 22 authorities that say that when a judge acts without jurisdiction there is no immunity." LT cedures, and for lawyers trying to grasp the new system. Sarah Copeland, a spokes- woman for the LAT, said in an email that the LAT is committed to ensuring that cases move effi- ciently through the system. "The case conference adjudi- cators will review adjournment requests on a case-by-case basis, and take into consideration the specific reasons for the request and the particulars of the file," she said. "To ensure consistency and openness in approach, while still respecting an adjudicator's inde- pendent discretion, we are cur- rently working on a practice di- rective that will be made public." The tribunal has also asked that most hearings be done through writing or over the phone, which lawyers say can- not be a substitute for in-person proceedings. "There's something to be said about somebody in the hot seat and how they react to questions in person as opposed to on the phone and in writing," says Bri- an Goldfinger, a personal injury lawyer. Copeland says the sys- tem is still in its transition phase, and that it will continue to refine the delivery of its system over the next 18 months. LT Continued from page 1 Tribunal asked hearings be done in writing, over phone Ruling brings greater certainty Continued from page 1

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