Just about a month ago I reported here that CourtCanada, the private software development company that had a deal with Ontario to provide some court services, had sued the Ontario government for breaching an understanding. The statement of claim [PDF] was made available then. CourtCanada's electronic booking system, OSCAR (Online System for Court Attendance Reservations) was implemented in the Estates Court as a pilot project and expanded to the Commercial Court, where it ran alongside FRANK, the government electronic booking system in place for a number of years. In essence, the dispute is about the government's decision not to expand the use of OSCAR to other courts and, indeed, to cease its use in Commercial Court.
Now the Ontario government has filed a statement of defence [PDF] and CourtCanada a reply [PDF].
There's nothing particularly noteworthy about the statement of defence from an outside point of view — it accepts and denies various allegations in the claim and asserts its view of events. The reply, though, seems — to my unpracticed eye, at least — to be characterized by strong language. The opening paragraph begins thus:
1. The Plaintiff denies all allegations except those which are expressly admitted. A blanket denial of the allegations in the Statement of Defence is appropriate in this case because the Defence is replete with false and misleading statements. The Defendant, not having a valid defence on the merits, has chosen subterfuge and obfuscation over the truth
Other examples include:
. . . the Defendant’s flagrant misrepresentation of the truth . . .
. . . the Defendant’s attempt to mislead . . .
This allegation is an attempt to cover up the Defendant’s sabotage of OSCAR . . .
Perhaps this is standard fare in litigation — it is, after all, a form of "plain language," which might be a welcome alternative to more stilted traditional expressions. On the other hand, it's not clear to me how the insertion of rhetoric at this stage of proceedings against the government could assist matters. CourtCanada's counsel, Martin Teplitsky, is an experienced and talented litigator, however, who will almost certainly have his reasons for this tack.
What do the litigators among our readership think about this use of rhetoric?
You mean
1. why would CourtCanada's lawyer create a Reply [pleading] in which, on its face, all the content seems to breach the applicable rules of pleading?*
2. but at same which will makes for good media fare? Indeed, it reads as if it is designed for a talking head (or the print/digital equivialent) to parrot portions of the pleading.
Saves on press releases and counsel having to speak at press conferences if one intends to conduct the litigation in the court of public opinion, too. You've probably noticed that CourtCanada's president has been very available to the media.
*Or, at the least, the traditional and I think current view of what the rules mean. On the other hand, I might be a dinosaur.
It seems to me that whenever government is involved, the court of public opinion is the only thing that matters, at least until a judgment is obtained. Government does not care about financial liability because it isn't their money. But the politicians sure as hell do care about looking stupid, or dishonest, in the press.
If the government did even half of the things they are accused of in this case, they are going to end uplooking stupid AND dishonest. Not hard to see why the company doesn't want to wait until trial to get its story out. And why should it? Besides, this is not a dispute between two private parties. If government is acting badly, then it is in the interests of ALL taxpayers to find out about it. After all, it is OUR money that the government is continuing to waste.
It should also be noted that it is hardly the first time that the Ministry has been sued for screwing over a software supplier. I read that MAG recently paid EDS $65 million for screwing them over, too. Shouldn't Ontarians know about that? Instead it just gets swept under the rug. Ontario is using OUR money to buy off companies who raise legitimate concerns about the way the Ministry does (or doesn't do) business.
I note that the fact that the efficiency of our court system – no e-filing yet, etc. – is hardly a ringing endorsement of whatever court management skills this MInistry has.
My guess is that at some point this is going to be quietly settled, with no admission of wrongdoing by government, etc. Isn't there an election coming?
Can't say I'm surprised at the silence from my cohorts.
Let me offer one possible explanation for the use of rhetoric of the type Simon describes. It's a version of the "Big Lie" approach, the lawyer realizing (or at least being concerned about the prospect) that if the case goes to trial the likely result will be comments aoout the merits of his or her case similar to those I'm about to quote.
Barber v. Molson Sport & Entertainment Inc., 2010 ONCA 570