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Adapt judge’s model to summary motions, lawyers say

|Written By Yamri Taddese

Following the Supreme Court’s decision in Hryniak v. Mauldin, civil litigators say Ontario should create a new summary judgment motion procedure based on the premise of a recent guideline written by Superior Court Justice David Brown.

‘When a judge becomes an interventionist, you just get much more done,’ says John McLeish.

After the top court gave judges wide discretion to decide cases through summary judgment in Hryniak, Brown wrote a standard case management protocol for commercial list cases he’ll preside over.

Now, some lawyers say Brown’s guideline — which involves hands-on intervention by a single judge, greater co-operation between counsel, and fewer court appearances ­— should apply across the board in the civil justice system.

“Counsel and self-represented parties are expected to practise the ‘3 Cs’ of the Commercial List: Co-operation, Communication, and Common Sense,” wrote Brown in Farrell v. Kavanagh on Feb. 7.

“While communication amongst counsel by e-mail may be convenient, often to resolve difficult issues, there is no substitute for ‘live’ communications between counsel, such as picking up the phone or chatting over a coffee.”

Brown’s guideline envisions fewer procedural motions and adjournments, a strategy lawyers say will be helpful outside of the commercial list as well.

“In my view, the ability to prepare a case for a final hearing on the merits without resorting to any process-related interlocutory motion represents the gold standard for hearing preparation,” the judge said. “No date for the hearing of an interlocutory motion will be set in this proceeding without an initial discussion of the procedural problem at a 9:30 attendance.”

Brown’s guideline is a good model for case management throughout the civil justice system in the wake of Hryniak, says Toronto lawyer Garry Wise.

“It will facilitate candid and early judicial comment on the likely merits of a proposed summary judgment motion, urge settlement of matters that should be settled, and maintain judicial supervision throughout on the overriding objective of proportionality,” he says.

Brown’s approach, “or a variation of it,” is already available in commercial list matters, but a similar standard should apply to other civil cases as well, Wise suggests.

“None of these promising approaches would appear to be as readily available in the remainder of the Ontario civil justice system as it now stands. Our rules committees and court administrators will need to create new processes to implement Justice Brown’s model, or a reasonable facsimile, in the balance of our civil justice system.”

For Andrea Burke, a litigation partner with Davies Ward Phillips & Vineberg LLP, it appears Brown will require parties to address the question of whether summary judgment is appropriate at the outset before scheduling any motion. That requirement is consistent with Brown’s general view about the overuse of summary judgment, she says.

“Any time you have a schedule imposed at the beginning and have someone you can go back to for further directions if you need it, I think it makes the process much more efficient,” she adds.

If parties can access Skype or GoToMeeting, Brown said he’d hold case conferences online. A day before the conference, he expects “a very short e-mail” from counsel identifying issues they’d like to discuss.

If a scheduled motion will involve three or more hours of hearings, “it would be my preference to conduct a ‘paperless’ hearing,” wrote Brown. Parties must prepare electronic copies in accordance with guidelines the court set up for a 2012 pilot project.

To help with quick searches, Brown said PDF documents submitted to the court must have character recognition functions and suggested imaged copies “are not acceptable.”

He added: “Ideally, counsel should co-operate and file, through the Commercial List Office, one USB key that contains the motion materials for all parties at least three (3) days before the hearing of the motion.”

In another recent endorsement in The Bank of Nova Scotia v. David Allin, Brown said it’s important to use the case management mechanism available for the Toronto region commercial list in order to minimize the number of attendances before a judge for a single summary judgment motion. If oral evidence is necessary, parties shouldn’t have to meet only to decide that and then come back another day, he said.

“Accordingly, it makes sense to me to set a schedule for a summary judgment motion which would require the parties to complete the written record, including out-of-court cross-examinations, well in advance of the motion hearing date, so that the judge scheduled to hear the motion could assess the adequacy of the written record in advance of the hearing and give directions in advance of the hearing about the calling of oral evidence,” he wrote.

A streamlined case management system will now be more important as more litigants, emboldened by a low-cost summary judgment option, bring an increased number of cases to court, says Wise.

“If Hryniak does in fact open the floodgates for summary judgment motions, as I believe the Supreme Court intended, our court system may ultimately require a broader reprioritization and reallocation of judicial resources simply to keep up with the caseload.”

Personal injury lawyer John McLeish also says Brown’s guideline is “absolutely” one that should become the standard.

“The Supreme Court of Canada has encouraged judges to become more interventionist,” he says.

“When a judge becomes an interventionist, you just get much more done. You can deal with the everyday stuff administratively rather than through motions scheduled for months from now.”

Wise says more work lies ahead outside of the commercial list system as the courts structure a road map for what he calls “Ontario’s new and possibly groundbreaking summary judgment era.”

He adds: “According to the Supreme Court, this change is no longer merely optional.”

For more, see "Hryniak will have profound impact on civil proceedings."


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