Focus: Conventional trial ‘dead as a dodo’

Two Ontario judges have a message for lawyers disappointed by the Ontario Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch on summary judgment: get over it.


The ruling went down like a lead balloon among some litigators who had hoped the 2010 amendments to the Rules of Civil Procedure would usher in a new era of easily available summary judgment.

Speaking at a Sept. 12 Ontario Bar Association conference on the full-appreciation test formulated in the decision, Ontario Court of Appeal Justice Robert Sharpe explained that the rare five-judge panel was necessary because of the divergent and conflicting body of jurisprudence that was developing in the Superior Court.

“It was a matter of great importance to the practice and the profession that we felt needed to be sorted out,” said Sharpe.

“Whether we got it right or wrong, at least we would be saying something to give guidance because there wasn’t any settled jurisprudence. Rightly or wrongly, there it is.

You’ve got to live with it.”

Another speaker at the conference, Ontario Superior Court Justice David Brown, has recently caused a stir with a number of commercial list judgments condemning the “motions culture” in the Toronto region and lamenting the apparent reluctance of counsel in the city to test their cases at trial.

He echoed Sharpe’s sentiments with gusto.

“You don’t like Combined Air? So what. The Court of Appeal has spoken,” he said.

“We have to follow Combined Air as motions judges and we will. So therefore you, as litigators on behalf of your clients, have to read, understand, and apply Combined Air.

We ain’t going to change it. And from what I’ve seen, since the release of Combined Air, that message just ain’t getting through. You’re trying to hammer square pegs into round holes. Well, we aren’t going to let you hammer square pegs into round holes.”

Brown laid out his own vision of a case-management approach to civil litigation in two decisions released last month: George Weston Ltd. v. Domtar Inc. and 1318214 Ontario Ltd. v. Sobeys Capital Inc.

The judge refused to schedule the requested summary judgment motions and instead directed the parties to develop plans for unconventional hybrid trials. At the conference, he told the audience of litigators that the conventional trial is as “dead as a dodo. It’s gone.”

“In jury cases, that’s the way it will be and perhaps in a few others you might have to have a full-blown conventional trial.

But so many cases these days you can creatively determine and construct a mode of trial combining written and oral evidence or perhaps just written evidence that will get you where you want.

Instead of beating your clients’ heads against the wall and draining their wallets of their money by going the summary judgment route, why not sit down and say, ‘OK, we’ve got a dispute.

Why don’t we have a proposal before a judge as to the form of trial and see if we can’t get on earlier?’ On the commercial list, we’re very open to that.”

Brown pointed to the eastern region as a model for a case-management approach. There, he said, lawyers get a “heart-to-heart” with a master about the suitability of their case for summary judgment, an approach that results in fewer motions than in Toronto.

Brown also presented a study of reported summary judgment decisions from the first half of 2012 showing that fewer than half resulted in final determinations. In a time of squeezed judicial resources, said Brown, that’s not good enough.

Predicting more would follow his lead in refusing to schedule motions for summary judgment, he said judges should focus on two things: hearing interim orders to preserve the status quo and final determinations of cases on their merits.

“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. As judges, increasingly we have to develop a bit of backbone.”

Sharpe noted judges often find motions for summary judgment more difficult to decide than trials because they also have to be certain there’s enough evidence before them to decide the matter.

“The dynamic of the trial is a wonderful thing.

You get the picture, 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 affidavits drafted by lawyers, not the words of the client. It’s all on paper, it’s all dry.

The 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 system. It isn’t. It is a tool that, when used appropriately, can be very effective.

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 shortcomings of the trial as a method of finding the truth.

“There’s a lot of very romantic language in the Combined Air judgment about the trial narrative and how important it is to craft a trial narrative,” he said. “Well, a narrative is a story, and a story is something that lawyers create, and it’s not necessarily the same as the truth.

I think the truth can usually be found in documents. The truth can be found not in what people say three years after the fact but what they actually did at the time.

Those 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 reluctantly 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 trying 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 expressed 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 stakeholders in the legal system that greater availability of summary judgment could increase access to justice.

“There’s been a tremendous amount of ad hoc reaction from the bench. There doesn’t seem to be much co-ordination.

If you’re getting trials earlier than summary judgment motions, then the response to that is quite clear: create a summary judgment court. It doesn’t seem that much different from creating a commercial list or an estates list.”

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