Law Times

Page 4 March 5, 2018 • Law TiMes www.lawtimesnews.com results since it was released and that a culture shift for which the Supreme Court called in the de- cision has yet to come to pass. He says insurers have shied away from bringing summary judgment motions in recent years as the costs can be quite prohibitive and judges have been hesitant to rule in favour of in- surers on such motions when there is a sympathetic plaintiff. "This case, I think, is a win for insurers and demonstrates that the cultural shift advocated by Hyrniak is possible in the in- surance context," he says. In her dissent, Justice Sarah Pepall said the matter should go to trial as the summary judg- ment finding was "anchored on minimal first hand evidence" and unresolved contradictions and inconsistencies. She noted that while judges have taken up the new approach ushered in by the Hryniak deci- sion with "a huge degree of pro- fessional commitment and dili- gence," not all cases are appro- priate for summary judgment. "A major goal of summary judgment is costs savings," she wrote in her dissent. "However, the goal is not summary judg- ment at all costs. There will still be some cases that ought to go to trial. Some caution must be used. This is particularly so in a case such as this that involves a largely unexplored area of the law and which would benefit from the full record that a trial provides." Lawyer Kevin Egan, who rep- resented Judith Isaac, says one of the problems with this particu- lar case is that he never had the opportunity to cross-examine any of the witnesses. "I have a real concern that so much evidence was considered and not cross-examined," he says. Pepall also found that the motion judge had failed in her treatment of the doctrine of emergence, saying the judge did not consider the elements of the doctrine. Pepall said the motion judge did not consider the record as she should have. "It is not enough to simply re- produce all of the evidence and then say it has been considered; there has to be some analysis," she wrote. Lawyer Ged Tillmann, who represented one of the defen- dants in the appeal, says he does not agree with the dissent as he thinks the motion judge was very comprehensive in her rea- sons. "She looked at all of the evi- dence that was available not only for the summary judgment but that would have been avail- able at trial," he says. "There was no indication from anyone that there was any other additional evidence that would be available at trial." He says the majority decision shows that summary judgment motions can be the better way to go, as judges are taking their time and going through such motions carefully. He adds that he thinks the decision will cause counsel to give more thought to proceed- ing with summary judgment motions. Egan says the majority deci- sion is an interesting view of the doctrine of emergency. He says there was little con- sideration to the antecedent of negligence and that the reason- ableness of reacting to the emer- gency seems to have been given broad consideration so that "anything goes once there's an emergency." He says this is a departure from the previous case law. "It's a problem for plaintiffs who may find themselves with- out a remedy for events that the defendant might otherwise be liable," he says. Tillmann says the decision confirms that the doctrine of emergency is still available but that it will always be fact-driven. Egan could not say whether his client intends to seek leave to appeal the decision to the Su- preme Court of Canada, as he had not yet met with them to discuss it. Sonia Fabiani, who represent- ed State Farm, did not provide comment before deadline. LT Continued from page 1 Goal is not 'summary judgment at all costs' a meaningful assessment of po- tential damages that would be recoverable in the action. This failure led to elongated litigation and unnecessary fees and dis- bursements charged by Aird & Berlis, the client argued. Oravital also claimed that Aird & Berlis failed to meet the standard of care expected of "reasonable and prudent so- licitors" by failing to reassess and adjust its litigation strategy when one of the defendant cor- porations ceased operations, "which significantly reduced the recoverable damages," the counterclaim said. The client also alleged that the firm had "pursued a course of conduct that achieved little to advance the litigation on its merits, and instead ran up ex- orbitant costs on procedural motions." In its reply and defence to the counterclaim, Aird & Berlis said it had advised Oravital that the proceeding would be "compli- cated, lengthy and expensive" and denied it was negligent in respect of its alleged failure to advise on potential damages that could be recovered. The firm contended that Or- avital did not request a prelim- inary assessment of recoverable damages, but that if it had, the firm acted appropriately in the advice it gave, and that the firm had carefully considered the client's strategy when one of the defendants went out of business. The firm also submitted that Oravital's principals were ex- perienced businessmen who were familiar with the risks of advancing the action and had provided instructions and strat- egy throughout the proceeding. When Aird & Berlis moved for summary judgment, the motion judge found that there was no causal link between the firm's failure to obtain a formal damages assessment at an earlier stage and the continuation of the Oravital action. Lawyers say the takeaway from the Court of Appeal's deci- sion is that lawyers have to meet the standard of care in providing advice on damages issues even if clients are very sophisticated businesspeople. Geoff Hall, a partner with McCarthy Tétrault LLP, who, along with Anu Koshal, repre- sented Oravital in the appeal, says the decision sends a clear message that it is part of a law- yer's duty to explain to clients the risks of litigation and the proper quantification of poten- tial damages. "I think the real lesson here is that litigators have to keep in mind what damages can be re- covered and not lose sight of that because clients deserve to un- derstand that directly and need to understand what their cases are worth to determine whether they should be pursuing them or not," says Hall. The Court of Appeal also found that the motion judge erred by determining the claim and counterclaim on a sum- mary judgment motion, as there were "highly contentious incon- sistencies about these issues that required a trial to resolve." While both parties agreed that the issues in the action and counterclaim could be dealt with through a summary judg- ment motion, the Court of Ap- peal found that was not the case. "They were mistaken," said the decision. Lawyers say the decision serves as a reminder of the limits of summary judgment and what is an appropriate use of that kind of motion. Bryan Rumble, a partner with Falconeri Munro Tucci LLP, says the decision shows that courts are not always going to agree that a case is appropriate for summary judgment even if both parties agree it is. "Even when the parties agree it's a case for summary judg- ment, the judge needs to actual- ly look behind that and make sure that is in fact the case," says Rumble, who was not involved in the case. The lawyers representing Aird & Berlis declined to com- ment as the case is ongoing. The case will now go back to the Ontario Superior Court for trial. LT Duty to explain risks of litigation Continued from page 1 NEWS NEWS NEWS FULL DAY IN-CLASS & LIVE ONLINE ACCESS This annual conference gives executives and Corporate Commercial & Technology lawyers an opportunity to network and learn about the most recent and significant developments in Canadian and international Technology Law - all provided by leading practitioners. 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