In September I wrote a post about a case in which Justice Brown voiced the need for Superior Court Judges to respond to the challenges and stresses confronting our civil litigation system. The major challenge being, according to Justice Brown, that demand for judicial time exceeds available supply.
In a decision released this month, Justice Brown decided to lead by example.
Justice Brown had scheduled a refusals motion for one hour. Once he received two factums totaling 56 pages, he emailed counsel and told them that if he determined that the materials were more reflective of a 3 hour motion as opposed to a 1 hour motion, he would send the motion to be argued before a Master.
I should pause here to note that Justice Brown scheduled the motion on a day he was not even supposed to be sitting as a courtesy to the lawyers and the parties in order to move the lawsuit along.
At the motion Justice Brown spent 30 minutes questioning the lawyers about what the case really boiled down to. He determined that the refusals motion would be lengthy and sent the motion over to be argued before a Master.
Justice Brown indicated that parties should not expect Judges on the Commercial List to listen to extensive refusals or productions motions. Those motions are within the jurisdiction of the Masters in Toronto. In Justice Brown’s eyes, Judges should spend time hearing matters which are solely within the jurisdiction of Judges. He acknowledged that in some circumstances, depending on the nature of the case, a Commercial List Judge may hear a short and focused refusal/production motion, but that if parties are looking for more than a “quick and dirty” view on these issues they should make their case (or will be directed to make their case) before the Masters.