On January 1 2010 certain amendments were made to the Ontario Rules of Civil Procedure. One such amendment expressly incorporated into the rules the concept of proportionality, as follows:
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding."
Justice Colin Campbell of the Ontario Superior Court of Justice (Commercial List) stated:
"Rule 1.04 (1), 1.1, and (2) while seemingly adding little by way of substance now operate as a strong signal for a change in culture. Parties cannot expect that the discovery process can with the passage of time and crippling cost destroy the prospect of a determination of legal issues on the merits. In recent years this has too often been the case."(1)
Litigators in Ontario, particularly Toronto, and their clients have found themselves in the midst of what some jurists have called a "cultural revolution" with respect to the manner in which the courts expect litigants and their counsel to behave.(2) Phrases such as 'case management', 'ongoing management', 'orderly management', 'ongoing practical management', 'litigation management', 'assistive judicial management', 'case management tools', 'judicial assistance' and even 'case management of a heavy-handed sort' are now part of the litigation vernacular.
One Ontario Superior Court judge has been particularly outspoken in the area of active case management – Justice David Brown of the Ontario Superior Court of Justice.(3)
One of the driving forces behind this cultural revolution has no doubt been the proliferation of protracted interlocutory disputes over the sufficiency and adequacy of documentary production that has hamstrung the court, spawning scheduling bottlenecks. For example, in Toronto it typically takes five months to schedule a one-hour motion or application before a judge, and a two-hour motion or application takes nine months to be scheduled. This state of affairs is unseemly.
Before email and electronic files and file servers, litigators spent most of their time meaningfully engaged in attempts to resolve the real disputes in a case. As Justice Colin Campbell of the Ontario Superior Court of Justice (Commercial List) stated:
"If one were to go back 40 years, the parties to litigation and their counsel were largely responsible for managing production and discovery. In that bygone age there were often only 5 to 10 documents for production and less than a half a day for oral discovery."(4)
However, with the introduction of email, electronic data, social media, metadata and cloud document storage, an inordinate amount of time is spent engaged in what can be considered to be the litigation equivalent of an archaeological dig. Understandably, clients are growing weary of the associated costs of such endeavours, and the main players involved (ie, young litigators, paralegals and clerks) are equally weary.
After 15 years of getting to grips with computer speak, lawyers who had found their comfort zone using fancy technological language on discovery or cross-examination as a means of plumbing the depths of the sufficiency and adequacy of their opponents' productions now, more often than not, meet the defence that such requests are unreasonable, disproportionate and tantamount to a fishing expedition.
As an increasing number of disputes over the adequacy of documentary production(5) have been brought before the court, the judges, unsurprisingly, have grown weary of what, in many cases, amounts to sheer ankle biting. Therefore, the question is how can you teach an old dog new tricks? Put differently, how can you prevent an old dog from engaging in his or her well-honed, age-old tricks?
One way is to use the 'carrot and stick' theory – that is, by rewarding good behaviour, punishing bad behaviour and providing examples of both. Justice David Brown noted the utility of this approach in his paper entitled "Sacred Cows and Stumbling Blocks: Whither Civil Procedure Reform?". He quoted from this paper in Atlas Holdings v Vratsidas,(6) where he noted that "[t]his action has gone badly off the rails and requires case management of a heavy-handed sort":
"This past May at a Law Society of Upper Canada program I delivered a paper entitled, 'Sacred Cows and Stumbling Blocks: Whither Civil Procedure Reform?' My thesis was a simple one: until such time as our civil justice system decision-makers confront and discard several sacred cows upon which our civil litigation system rests and remove certain stumbling blocks standing in the way of the enhanced administrative performance of the civil court system, little in the way of significant improvements will result from the 2010 amendments made to the Rules of Civil Procedure and little hope exists for further meaningful reform to the way civil suits are conducted and adjudicated in Ontario.
One of the two 'sacred cows' which I argued had to be discarded was the view that 'unlimited judicial resources are available for every civil dispute'."
In the opening paragraph of this case, Brown's reasons commenced with a question and answer as follows:
"Who ultimately controls the allocation of court time for a proceeding: the litigants or the judges? This proceeding, which is mired in a pleadings war of attrition and delayed discovery, raises that question. The answer is simple: the judges. For reasons which I will explain below, this proceeding must be subjected to "heavy-handed" case management to prevent the parties from using up a disproportionate amount of judicial resources without moving this action closer to trial."
Some other recent examples noted below, all penned by Brown, illustrate the new attitude, approach and expectations of the court of litigants and their counsel.
In Abrams v Abrams(7) Brown, in discussing the inherent jurisdiction or powers of a superior court of record and the relationship between a court's inherent powers and the Rules of Practice, stated:
"In sum, the court's inherent jurisdiction, or power, to regulate, manage and control the proceedings before it co-exists with the specific rules of practice in respect of various proceedings. A court's power to control its own process is the sum of both sets of powers. Both sets of powers may operate together, with a court's inherent powers ceding only in the face of clear, unambiguous statutory, or regulatory, language that the court cannot manage its process in a specified manner."
In the same decision(8) Brown, in addressing the subject of case management, stated:
"it is important to stress that the concept of 'case management' for civil cases is a broad one, and the term 'case management' refers to a broad range of powers exercised by judges in the course of managing a civil proceeding.
A judge may intervene to manage a civil proceeding in a variety of circumstances. First, judges frequently issue directions for the further conduct or trial of a proceeding when disposing of a motion or application. For example, a judge hearing a motion, such as a motion to set aside a default judgment, may, as part of the disposition of the motion, give directions for further steps in the proceeding - e.g. timetabling the delivery of pleadings, affidavits of documents and the conduct of discoveries. This sort of case management occurs daily...
All seven types of judicial intervention are forms of 'case management' or 'litigation management', in the sense that a judge intervenes in the proceeding prior to trial in order to give directions for the preparation of the case for trial, for the actual conduct of the trial, or to attempt to resolve the proceeding. As can be seen, case or litigation management may arise in a variety of circumstances and will require the application of a range of management tools in order to secure the just, most expeditious, least expensive and proportionate determination of the proceeding on its merits."
In the same decision,(9) Brown highlighted 'judicial squeezing', 'pinching', 'judicial hammering' and the increasing use and escalating sound of the 'judicial hammer' as incidents of effective case management:
"The inevitability of 'judicial squeezing' in case management...
Judicial management of high-conflict cases, such as this one, involves, at times, a certain amount of 'judicial squeezing' in order to advance the case to a hearing in a timely and proportionate manner. Not all parties take kindly to such squeezing. But, it is worth recalling the comments made by Master Haberman in her decision in Mother of God Portaitissa Saint Raphael, Nicholas, Irene & Olympia Greek Orthodox Monastery of Metropolitan Toronto Inc. v. Bakolis where one party sought the recusal of a case management master with whose directions it did not agree:
'It is understood that, in a case managed environment, there will be times when the master forms an impression about how one party or the other has been conducting itself as a result of this repeated exposure. If the view is unfavourable, that, in and of itself, does not give rise to a basis for recusal. One must still meet the test that has been articulated by the Supreme Court of Canada. Similarly, if the master's repeated dealings with the parties and the issues gives rise to a sense that there is more merit to one side than the other, that, too, will not suffice to prevent further handling of the case. That is precisely what case management was intended to do – create an expeditious and cost effective way to resolve all aspects of the disputes that come before the courts, by allowing judges/masters to become familiar with the case through repeated exposure.'...
In other words, some amount of judicial squeezing accompanies litigation management. If some pinching occurs, that does not signal a lack of jurisdiction or bias, but simply a necessary degree of judicial hammering to bang a case back into proper procedural shape. The recent adoption of the principle of proportionality signals that the sound of the judicial hammer will only get louder."
In the same decision(10) Brown addressed the principle of proportionality as follows:
"Although the principle of proportionality as a guide to the exercise of judicial discretion in controlling the process of the court is not a new concept, it was only earlier this year that the principle found express statement in Rule 1.04(1.1) as a foundational principle of the Rules of Civil Procedure: 'In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceedings'...
The inclusion of an express principle of proportionality in the Ontario Rules of Civil Procedure resulted from the recommendations made by the Honourable Coulter A. Osborne, Q.C., in his 2007 report on the Civil Justice Reform Project. In that report he stated that proportionality, in the context of civil litigation, simply reflects that the time and expense devoted to a proceeding ought to be proportionate to what is at stake...
I think that Justice Colin Campbell of this Court accurately captured the dynamic and reach of the introduction of an express principle of proportionality into the Rules of Civil Procedure by describing it as a step which signals a shift in the practice and culture of civil litigation. While the Rules of Civil Procedure are not often compared to the Little Red Book of Chairman Mao popularized during China's Great Proletarian Cultural Revolution, I do not think it an exaggeration to characterize the recognition of proportionality in our Little Blue (or White) Book as a 'cultural revolution' in the realm of civil litigation. Proportionality signals that the old ways of litigating must give way to new ways which better achieve the general principle of securing the 'just, most expeditious and least expensive determination of every proceeding on its merits.' These new ways need be followed by the Bar which litigates and by the Bench, both in its adjudication of contested matters and in its management of litigation up to the point of adjudication...
Having ignored the 'light touch' directions of Strathy J., the parties should not be surprised that the next judicial intervention would possess a proportionally greater bite than the first. Or, to put it more colloquially, if parties turn their backs on a first set of judicial management directions, they can expect the court to turn up the heat on the second set. Such is one manifestation of the principle of proportionality in operation."
In Brown's much-publicised decision in George Weston Limited v Domtar Inc,(11) he stated as follows:
"At the heart of these two motions lies the issue about how courts should best manage the summary judgment process and fashion an approach which ensures that parties use summary judgment motions in the circumstances identified as appropriate by the Court of Appeal in Combined Air. The disposition which I make of these two motions rests in a specific view of the case management powers of a superior court of record and how those powers can and should be used to ensure that Ontario's public courts continue to provide timely, cost-effective and fair access to justice to civil litigants. If we, as judges of a superior court of record, are unable to respond to the challenges and stresses presently confronting our civil litigation system, we risk losing litigants to the private-sector justice system in which an ever increasing number of private arbitration centres offer parties dispute-resolution services employing modern technological systems and well-trained arbitrators, quite often retired judges of this court.
Private arbitration, of course, is all well and good, and it enjoys a place in society's dispute-resolution processes. But, if we continue to believe that a democracy requires its public courts to play the primary role in adjudicating civil disputes and in driving the development of civil jurisprudence, then those involved in the public court system - judges and administrators alike - must work hard, and must work creatively, to preserve the primacy of public courts. Whereas courts enjoy a monopoly with respect to the adjudication of criminal cases, increasingly public courts are simply one of several options from which litigants can select the forum in which they wish to present their civil disputes. To limit judges who hear civil cases to the old ways of adjudicating disputes risks ceding the primary role in civil dispute resolution to the private sector. Such a result would be a sad day for a free and democratic society."
Prompted, in part, by Brown's extensive writing, in his article "Proportionality, Case Management and Summary Judgment in the Ontario Courts: Lessons for the Arbitration Community"(12) Earl A Cherniak remarked:
"It is equally important for the arbitration community to ensure that private commercial arbitration remains a viable, and for many parties an essential, parallel to dispute resolution in the courts. Rather than the increased use of commercial arbitration to resolve disputes being 'a sad day for a free and democratic society' [quoting Brown in George Weston Limited v Domtar Inc 2012 ONSC 5001 at paragraph 10] it should be seen as a necessary adjunct to an increasingly overburdened civil justice system. Users of the private arbitration system, current and prospective, need to know that the arbitration community in Ontario is well aware of the challenges facing dispute resolution in the modern age, and is addressing them adequately and resolutely."
The lengthy delays experienced in Toronto with scheduling motions, applications, pre-trial conferences and trials on the regular civil list should cause litigants and their counsel to consider other means of resolving their disputes, such as mediation, med-arbs, third-party neutral evaluations and arbitrations if there is a desire to resolve disputes in a reasonably timely fashion. On the other hand, if litigants and their counsel are content to let cases languish in limbo, they can let their cases sit comfortably nestled on a seemingly endless list of civil cases and enjoy the status quo – but the litigators involved will need thick skin, earplugs and hardhats.
For further information on this topic please contact Norm Emblem or Chelsea Rasmussen at Fraser Milner Casgrain LLP by telephone (+1 416 863 4511), fax (+1 416 863 4592) or email (email@example.com or firstname.lastname@example.org).
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(5) In Rule 30.01 of the Ontario Rules of Civil Procedure, 'document' includes "a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form".