Law Times

Law times • OctOber 1, 2012 Lawyer reverts to pre-2010 advice on summary judgment FOCUS more diffi cult to decide than tri- als because they also have to be certain there' Continued from page 14 wonderful thing. You get the pic- ture, you get to see the people, you get to make an assessment, and you don't get that on a summary judgment motion. You get affi - davits draſt ed by lawyers, not the words of the client. It' s all on paper, before them to decide the matter. "Th e dynamic of the trial is a s enough evidence it's all dry. Th e basic message [of Combined Air] is let's be focused about this. Let's not assume that summary judgment was some panacea for the problem of costs and delay in the civil justice sys- tem. It isn't. It is a tool that, when used appropriately, can be very eff ective. But it doesn't replace the basic system." Speaker Matthew Milne- Smith of Davies Ward Phillips & Vineberg LLP said he thought the Court of Appeal had missed an opportunity to address the short- comings of the trial as a method of fi nding the truth. "Th ere' tic language in the Combined Air judgment about the trial narrative and how important it is to craſt a trial narrative, s a lot of very roman- narrative is a story, and a story is something that lawyers create, and it' " he said. "Well, a s not necessarily the same as the truth. I think the truth can usually Concerns about chill 'speculative' Continued from page 9 class actions, says Horkins' deci- sion was encouraging. "It' there will be signifi cant costs consequences when you get a broadly cast, vigorously pur- sued case, s a helpful reminder that we're seeing a bit of an asym- metrical approach being taken by courts that is not justifi ed by access to justice concerns. When you look at awards to plaintiff s, the judge will almost "But at the same time, I think " he says. always comment on the skill of counsel at navigating through the process and getting the cer- tifi cation order. Th at may be true, but oſt en it seems to be a means of justifying the quan- tum of the fee. Why does it not apply equally to defence coun- sel, particularly in a case like this, which was broadly cast and vigorously pursued?" He urges a stricter applica- tion of the costs factors laid out in the Ontario Court of Appeal' 2006 decision in Pearson v. Inco s Ltd. and says the prevalence of indemnity agreements makes concerns about a chilling eff ect to potential plaintiff s overblown and "speculative. continues to be, a steady stream of new class actions despite the fact that Ontario is a jurisdiction where costs follow the event," says Hoaken. "Th is chilling eff ect is putting "Really, there has been, and " a cap or ceiling on awards being granted in a way that' sistent with Pearson v. Inco." LT s not con- be found in documents. Th e truth can be found not in what people say three years aſt er the fact but what they actually did at the time. Th ose questions — what they did at the time, what they wrote at the time, what the objective facts are — can be decided on a summary judgment motion." Milne-Smith said he has re- luctantly returned to his pre-2010 advice for clients on summary judgment that he used before the rule changes granted judges the ability to draw inferences, weigh evidence, and assess credibility. Movers of motions should be able to boil down their case to a narrow legal issue, he said. On the other side of the coin, respondents try- ing to avoid summary judgment should produce documents, get into discovery, and retain experts early in the process to "muddy up the record as quickly as you can." "It sounds extremely cynical, but this is what the judges have given us and this is what we have to live with," he said. Former OBA president Lee Akazaki encouraged counsel to continue bringing motions for summary judgment and ex- pressed his disappointment at the courts' reaction to the 2007 Civil Justice Reform Project report by former Ontario associate chief justice Coulter Osborne and the 2010 rule changes that he saw as a clear expression from stakehold- ers in the legal system that greater availability of summary judgment could increase access to justice. "Th ere' amount of ad hoc reaction from the bench. Th ere doesn't seem to be much co-ordination. If you're getting trials earlier than sum- mary judgment motions, then the response to that is quite clear: cre- ate a summary judgment court. It doesn't seem that much diff erent from creating a commercial list or an estates list." s been a tremendous LT PAGE 15 TRUST you're putting your reputation on the line. 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