Law Times - Newsmakers

top newsmakers Justice David Brown takes on province, lawyers From electronic courts to summary judgments, judge tells it like it is S By michael mckiernan traight-talking Justice David Brown of the Ontario Superior Court had a bumper year of telling it how it is with a string of high-profile decisions inspired by sources as varied as the New York Sun and Dr. Seuss. In March, the commercial list judge evoked the famous editorial, "Yes, Virginia, there is a Santa Claus," as he tackled an old bugbear of his: the court's document management system. Brown had previously said the province's courts are in the "dark ages." This time, he was even more colourful in his description as he recounted the search for a document filed with the court in one of his cases, Romspen Investment Corp. v. 6176666 Canada Ltée. A court clerk was dispatched to the records room at the court while a lawyer returned to her office to retrieve another copy. Both took an hour, which wasn't good enough for Brown. What was his solution? "Consign our paper-based document management system to the scrap heap of history and equip this court with a modern, electronic document system," he wrote. "And what if our court had a system under which documents were filed electronically and accessible to judges and others through a web-based system, with sealed documents specially encrypted to limit access to judges only? Yes, Virginia, somewhere, someone must have created such a system, and perhaps some time, in another decade or so, rumours of such a possibility may waft into the paper-strewn corridors of the court services division of the Ministry of the Attorney General and a slow awakening may occur." In a September decision in George Weston Ltd. v. Domtar Inc., Brown turned his sights on the Toronto commercial bar when he claimed a "motions culture" in the city has left lawyers "preferring to wait nine months for a hearing date for a complex (i.e. full day) summary judgment motion instead of accepting a trial date three months hence." Refusing to schedule a summary judgment motion in the case, Brown said he believed some less experienced counsel are scared of trials because of their lack of familiarity with them. He compared the Toronto bench to Dr. Seuss' Sam-I-Am, a character who struggles to overcome another character's determined dislike for green eggs and ham despite the fact that he has never actually tasted them himself. "Are civil trials the legal equivalent of green eggs and ham?  Is Green Eggs and Ham an allegory in which Sam-I-am represents the bench, and the interlocutor the bar? I will leave the finer points of literary analysis to the critics, but the story does bear a striking resemblance to the ongoing dialogue between bench and bar regarding the respective merits of civil trials and motions," wrote Brown. And if you think he's any less forceful in person than he is in print, Brown laid those doubts to rest with a fiery address at an Ontario Bar Association event, also in September. Facing a room of Toronto litigators, he warned them that the conventional trial was as "dead as a dodo" and predicted more judges would follow his lead in promoting the use of hybrid trials at the expense of motions for summary judgment. "We don't have time, using unjudicial language, to piss away on this plethora, this infestation of interlocutory, process-related motions 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's a waste of taxpayers' money; it's a waste of our time. We don't have the resources to do it." Putting the legal community front and centre has made us the #1 choice with Canadian lawyers for over a decade. At Stewart Title, we keep real estate transactions where they belong – in your office! The title insurer that puts you front row, centre Untitled-3 1 1-888-667-5151 or www.stewart.ca 11-11-17 4:02 PM 2012 top news, newsmakers, and cases 5

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