Law Times

PAGE 14 Conventional trial 'dead as a dodo' FOCUS BY MICHAEL McKIERNAN Law Times T wo Ontario judges have a message for lawyers disap- pointed by the Ontario Court of Appeal' Mechanical Services Inc. v. Flesch on summary judgment: get over it. The ruling went down like a s decision in Combined Air lead balloon among some litiga- tors who had hoped the 2010 amendments to the Rules of Civil Procedure would usher in a new era of easily available summary ANNOUNCEMENT judgment. Speaking at a Sept. 12 Ontario Bar Association conference on the full-appreciation test formulated in the decision, Ontario Court of Appeal Justice Robert Sharpe explained that the rare five-judge panel was necessary because of the divergent and conflicting body of jurisprudence that was developing in the Superior Court. "It was a matter of great impor- ference, Ontario Superior Court Justice David Brown, has recently caused a stir with a number of commercial list judgments con- demning the "motions culture" in the Toronto region and lamenting the apparent reluctance of counsel in the city to test their cases at trial. He echoed Sharpe' tance to the practice and the pro- fession that we felt needed to be sorted out," said Sharpe. "Whether we got it right or wrong, at least we would be saying something to give guidance because there wasn't any settled jurisprudence. Rightly or wrongly, there it is. You've got to live with it." Another speaker at the con- with gusto. "You don't like Combined Air? OctOber 1, 2012 • Law times Lee Akazaki has been disappointed with the courts' reaction to the 2010 amend- ments to the Rules of Civil Procedure. s sentiments So what. The Court of Appeal has spoken," he said. "We have to follow Combined where you want. Instead of beat- ing your clients' heads against the wall and draining their wallets of their money by going the sum- mary judgment route, why not sit down and say, 'OK, we've got a dispute. Why don't we have a pro- posal before a judge as to the form of trial and see if we can't get on earlier?' On the commercial list, we're very open to that." Brown pointed to the eastern Untitled-3 1 GET THE LATEST ON SMALL CLAIMS COURT PRACTICE NEW EDITION ONTARIO SMALL CLAIMS COURT PRACTICE 2013 MR. JUSTICE MARVIN A. ZUKER WITH CONTRIBUTIONS FROM J. SEBASTIAN WINNY For more than 30 years, Ontario Small Claims Court Practice has offered comprehensive coverage of every aspect of commencing or defending a claim to appeals and enforcement of a judgment. The new 2013 edition is updated to include all the latest cases and the most recent amendments to the Small Claims Court rules and forms. 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We ain't going to change it. And from what I've seen, since the release of Combined Air, that message just ain't getting through. You're trying to hammer square pegs into round holes. Well, we aren't going to let you hammer square pegs into round holes." Brown laid out his own vision of a case-management approach to civil litigation in two deci- sions released last month: George Weston Ltd. v. Domtar Inc. and 1318214 Ontario Ltd. v. Sobeys Capital Inc. The judge refused to schedule the requested summary judgment motions and instead directed the parties to develop plans for unconventional hybrid trials. At the conference, he told the audience of litigators that the conventional trial is as "dead as a dodo. It' will be and perhaps in a few oth- ers you might have to have a full- blown conventional trial. But so many cases these days you can cre- atively determine and construct a mode of trial combining written and oral evidence or perhaps just written evidence that will get you "In jury cases, that's the way it s gone." region as a model for a case-man- agement approach. There, he said, lawyers get a "heart-to-heart" with a master about the suitability of their case for summary judgment, an approach that results in fewer motions than in Toronto. Brown also presented a study of reported summary judgment decisions from the first half of 2012 showing that fewer than half resulted in final determinations. In a time of squeezed judicial re- sources, said Brown, that' good enough. Predicting more would follow his lead in refusing to schedule motions for summary judgment, he said judges should focus on two things: hearing in- terim orders to preserve the status quo and final determinations of cases on their merits. "We don't have time, using un- s not judicial language, to piss away on this plethora, this infestation of interlocutory, process-related mo- tions that are just driving our civil justice system into the ground, said Brown. "So what I think we have to start saying through case management is we ain't going to do that. It' " money; it's a waste of our time. We don't have the resources to do it. As judges, increasingly we have to develop a bit of backbone. Sharpe noted judges oſten find motions for summary judgment " See Lawyer, page 15 E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Litigation & Forensic Accounting, Financial Investigations Assisting you in 4 5 Sheppar d Avenu e East, Toronto, Ontario M2N 5W9Willowdale, Ontario M2N 5W9 Suit e 900 www.lawtimesnews.com Vlit_LT_Jan9_12.indd 1 12-01-03 11:38 PM evlitigation@rogers.com Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 s a waste of taxpayers

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