Sometimes, counsel and their clients litigating in Ontario are faced with motions from the other side that are more tactical than substantive or are just “overkill” given the nature of the action. This may occur when one party brings a motion to try to “out-spend” the other (forcing a party to increase legal fees by responding to a frivolous motion). Or when one party brings a premature motion, the subject matter of which could easily be dealt with in the course of litigation and without the need for a motion.
Civil Practice Court (in the Toronto region) is an appropriate venue to initially raise such issues. One of the purposes of Civil Practice Court is to identify cases that “require a degree of case management” and to “assist in the orderly hearing of long motions.”
When dealing with inappropriate motions, counsel should not forget about Rule 50.13 of Ontario’s Rules of Civil Procedure. Under this Rule, counsel can request a case conference (either at Civil Practice Court or through other means) to try and bring some common sense back to the action.
At a case conference, a judge or case management master has the power to make certain procedural orders. Such powers include establishing a timetable for the proceeding and reviewing and amending an existing timetable.
These scheduling powers can be used to make sure that any motions brought can be heard at the appropriate time in the action. As an example, a frivolous or unnecessary motion for a further and better affidavit of documents can be scheduled to occur after examinations for discovery instead of before examinations for discovery. The practical result of such an order will be that the additional documents sought, and the refusals from discovery, will be moved on together in a single motion rather than in two, separate motions.
Following the Supreme Court of Canada’s directions in Hryniak, the court has taken a more active role in the scheduling of motions, generally. In some cases, the Ontario courts have refused to allow parties to even schedule summary judgment motions1 “on the basis that [these motions] would not sufficiently advance the litigation, or serve the principles of proportionality, timeliness and affordability.”2 Recent case law has found that “these considerations are equally applicable to all procedural orders and directions made by the court at a case conference in exercising its gate-keeping role.”3
It is not clear that a court will prevent parties from scheduling other types of motions apart from summary judgment motions. But based on the above case law and Rule 50.13, it now appears to be open to the court to make scheduling orders to ensure that motions are heard at the right time in an action and that “the principles of proportionality, timeliness and affordability” are served.
Of course, not every motion brought by the other side is “inappropriate” – no matter how it may seem! However, when motions are brought that are not proportional, not timely and needlessly increase costs for the litigants (and the courts) counsel would be wise to consider whether a case conference could be useful in making sure that common sense doesn’t take a back seat.