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Bar told to embrace trials over summary judgment

|Written By Michael McKiernan

A Superior Court judge’s refusal to schedule summary judgment motions in two cases could signal an intensification of case management, according to one of the lawyers involved.

In a Sept. 3 double decision, Ontario Superior Court Justice David Brown declined to schedule the motions in commercial list cases George Weston Ltd. v. Domtar Inc. and 1318214 Ontario Ltd. v. Sobeys Capital Inc. and instead directed the parties to develop plans to allow them to proceed directly to trial.

Alan Mark, senior partner with Norton Rose Canada LLP, represents the defendant Domtar, which moved to strike the summary judgment motion brought by Weston following last year’s Ontario Court of Appeal decision in [a target="_blank" href="http://www.canlii.org/en/on/onca/doc/2011/2011onca764/2011onca764.html"]Combined Air Mechanical Services Inc. v. Flesch.

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In that case, the appeal court gave guidance on the suitability of cases for summary judgment. Mark says he was happy with the decision because it halted a motion he saw as inappropriate.

“Essentially, Justice Brown is saying that the judicial system is a partner in determining the most cost-effective way to get disputes resolved. It’s no longer acceptable for litigants to dictate to the court how much resources are to be used to resolve their disputes.

“I think Justice Brown is right that unless there is some sensible case management in place to regulate in what cases summary judgment will be brought, it’s going to be chaos.

Leaving it to the parties to bring massive motions for summary judgment with massive responses is obviously not sustainable if it’s going to be done on wide scale.”

Mark sees Brown’s approach to summary judgment as part of a wider move by judges to put proportionality at the heart of cases.

“More generally, we’re seeing a model where the court has to ration judicial time, and I think it is right to require parties to come up with a more effective trial plan than simply saying, ‘We will take as much time as we want to take,’” he says.

Weston sued Domtar back in 2007 over a clause in a share purchase agreement that Weston claims entitles it to $110 million. The case stuttered following the closing of pleadings before Weston served its summary judgment record in 2011.

Domtar initially consented to the scheduling of the motion but changed its position after the release of Combined Air.

In his decision, Brown found the motion wasn’t a good candidate for summary judgment because of the complexity of the contractual interpretation issues at play, the large amount of money at stake, the intention of both parties to rely on expert witnesses, and disputes over production.

Since both sides had already invested in producing a summary judgment record, he ordered the parties to prepare a “modified trial preparation plan” with a view to a “non-conventional” trial in early 2013 based on the record already established and supplemented with elements of traditional discovery.

“Under our rules, the ‘conventional trial’ no longer exists as a norm; the rules have made the civil trial modular in nature, with counsel and the judge able to fashion trials tailor-made to the circumstances of each particular case,” Brown wrote in a ruling that compared the 2010 amendments to the Rules of Civil Procedures to Lego blocks.

“Our court must use these trial building blocks to offer litigants creative, cost-attractive trial options if we stand any hope of limiting complex summary judgment motions to the role defined for them by the Court of Appeal in the Combined Air decision and preserving the role of the public courts as the primary adjudicators of civil cases.”

Weston’s lawyer Christopher Bredt, a senior litigation partner at Borden Ladner Gervais LLP, says his client won’t be appealing the ruling. “Our client brought the motion for summary judgment because we were interested in having a quick determination of the issues,” he says.

“Although we were unsuccessful on this motion, the judge has indicated that we will be able to get a relatively quick trial.”

Brown’s judgment suggests he wants more litigators to embrace quick trials. He highlighted a “motions culture” in Toronto that sees 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.”

Employing another unorthodox analogy, Brown said he believes some less experienced counsel are scared off from trials because of their unfamiliarity with them.

He compared the Toronto bench to Dr. Seuss’ Sam-I-Am, who struggles to shift another character’s determined dislike for green eggs and ham despite the fact that he has never actually tasted them himself.

In his factum, Bredt raised a concern that encouraging the striking of motions for summary judgment could create a “cottage industry” around strike motions and turn summary judgment into a two-step procedure.

But in his judgment, Brown said his approach would limit discussions on the appropriateness of a summary judgment motion to those that would consume significant court time. He sees a case conference as the best place to raise motions to strike so that no formal motions would be brought without leave of the case management judge.

In the other case decided by Brown, defendant Sobeys moved for partial summary judgment in an attempt to narrow the issues in its dispute with seven franchisees who ran its Price Chopper grocery stores.

Brown questioned whether the summary judgment motion would result in any cost savings considering that Sobeys had conceded a trial would still be necessary regardless of its success on the partial summary judgment motion.

“To have one judge (the motion judge) review that history to consider some of the complaints asserted by the plaintiffs in respect of the long course of contractual dealings between the parties and then to have another judge (the trial judge) review most or all of that history to review other complaints would involve an unnecessary and wasteful duplication of judicial effort,” wrote Brown.

He ordered a trial plan completed by the end of this month that would include the names of all witnesses, a time estimate for the length of the trial, and deadlines for expert reports. He also ordered an appearance by the end of October to set a trial date.

Jason Squire, a partner at Lerners LLP, says he has seen Brown take a similar hands-on approach with one of his matters on the commercial list and is interested to see how many judges will follow his lead.

“It remains to be seen if it becomes common practice. . . . The commercial list is certainly a more likely place for it to take hold because there’s a history of judges taking charge of things. It’s not a place where you can expect cases to languish.

If people expect that he [Brown] and others will maintain discipline like that on cases, I think you can expect Toronto practitioners will accommodate it. They’ll have to.”

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