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06/May/2015
Efficiency, Affordability, and Proportionality: Pinto V. Kaur Et Al., 2015 Onsc 1356

A recent ruling by an Ontario judge has provided more evidence of the push under way in Canada’s courts to make the judicial system more affordable and accessible to all, and to expedite cases for plaintiffs.

In stating the reasons for his March 2 decision on legal costs involved in a motor vehicle accident case, Pinto v. Kaur et al., Justice Frederick L. Myers of the Ontario Superior Court of Justice discussed at length the change taking place in Canada’s civil justice system following the Supreme Court of Canada’s landmark 2014 decision in Hryniak v. Mauldin.

The Hryniak decision backed Ontario’s new rules on summary judgment (judgment made on a claim, without full trial, when a judge finds an issue can be decided based on certain facts or clear, incontrovertible evidence), and provided guidance on when it can be used. Summary judgment may reduce legal costs by eliminating the need for trial on some issues. In its unanimous decision, the Supreme Court commented extensively on the need for a ‘culture shift’ in the judicial system to make it more affordable and accessible.

Myers opened his decision with a quotation from the Hryniak ruling: “Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  Trials have become increasingly expensive and protracted.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.  Without an effective and accessible means of enforcing rights, the rule of law is threatened.  Without public adjudication of civil cases, the development of the common law is stunted.” (Hryniak v. Mauldin, 2014 SCC 7 [CanLII], par. 1)

In the case before Myers, one of the defendants had succeeded in having the plaintiff’s claim against him dismissed and sought payment of his legal costs on the dismissal motion. Such costs are often awarded, but Myers instead awarded costs against the defendant because the defendant had not provided information and documents, as he had been directed to do by the court, in a timely manner. In ordering the defendant to pay the costs of another party in the case, Myers stated that the motion process and its associated costs would not have been required for either party if the information and documents had been provided sooner.

“The culture shift requires all participants in the civil justice system to embrace the goals of efficiency, affordability, and proportionality,” Myers noted in closing his decision. “This means that all participants will have (to) implement real changes to accommodate a faster, less expensive, and a far more just and workable civil justice system.” (Pinto v. Kaur et al., 2015 ONSC 1356 [CanLII], par. 22)

For a long time now, motor vehicle accident victims and other plaintiffs have had to endure slow-moving litigation, often waiting many years for their matters to reach the pre-trial and trial stages.  The new principles of efficiency, affordability, and proportionality laid out by the Supreme Court of Canada in Hryniak and underlined by Justice Myers in Pinto, mean that cases should be resolved faster and more affordably, with the costs of litigation being proportionate to the size of the case.  Counsel will no longer be able to draw out the litigation process, at the expense of injured plaintiffs.  The courts have sent a clear message that litigation is not to be unnecessarily protracted to delay or avoid justice by “waiting out” parties, but is instead to be used as a tool for timely access to justice and fairness.

In addition to the change in approach signalled by these rulings, the courts have recently leaned toward the use of summary judgment motions, which in Toronto must be heard within 100 days of counsel’s attendance at Civil Practice Court, formerly called Motion Scheduling Court.  What this means is that, where issues can be decided and narrowed without a full trial, parties can use summary judgment motions to expedite the resolution of lawsuits, allowing for access to justice in a timely manner.

Timeliness is at the heart of everything we do at Bogoroch & Associates LLP.  Justice Myers said it best when he said: “…nothing can just wait anymore.  Counsel must be proactive in all steps to bring each action to the most efficient and affordable resolution.”

Parties will be held to tighter timelines to schedule examinations for discovery, mediations, motions, pre-trials and trials; the status quo of delay is no longer good enough.  At Bogoroch & Associates LLP, we work aggressively on behalf of our clients, bringing motions for litigation timetables and answers to undertakings, where necessary, to ensure timely and efficient advancement and expeditious resolution of cases.

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