“A litigation culture has arisen in this province over the last three decades which extols creating and litigating peripheral procedural disputes, instead of moving towards the timely adjudication of disputes on their merits. That culture now lauds, as the skilled barrister, the motions specialist, not the final hearing expert.” – Justice David M. Brown
Given the hurdles presented by COVID-19, the Ontario courts are trying to shift the litigation culture away from litigating peripheral procedural disputes. It was recently acknowledged in a motion to consolidate two matters in Klassen v Klassen, 2020 ONSC 4835, that “[COVID-19] shut down Ontario’s non-virtual court rooms for almost four months, creating a significant case backlog and great uncertainty about what the criminal, family and civil trials of the future will look like and how far into the future they will be scheduled.” Scheduling of court time is now more than ever at a premium.
The new Practice Direction for Toronto Civil Matters in Ontario is nudging litigants towards being careful with court time and resources. More types of motions are being heard in writing, including some motions made on consent or a confirmed unopposed basis. Furthermore, “All opposed short motions and applications to a judge will be subject to review in writing before being scheduled. These motions and applications will be resolved in writing unless the reviewing judge directs a different procedure… All summary judgment motions, appeals from the Consent and Capacity Board, long motions and applications, and urgent matters must be scheduled through Civil Practice Court.”
It is in this new context that Justice Myers of the Ontario Superior Court, as the case management judge, rendered a new decision. Justice Myers was asked to decide whether leave should be granted to bring a motion in a hotly contested dispute. In 1539058 Ontario Inc. v. 2102503 Ontario Inc., 2020 ONSC 5251, Mr. Gertsel asked for leave to bring a motion to bar a witness, or at the very least to place a hurdle before a witness, from testifying at trial. Leave was denied.
In denying leave, Justice Myers quoted an earlier decision of his. This matter had been case managed for about 5 years, with seven lawsuits between the parties. Serious allegations of dishonesty and numerous interlocutory proceedings bogged the matter down. Justice Myers quoted a 2015 decision of his and reiterated that “[t]he Superior Court of Justice is not a free mock war theatre where parties can shoot verbal and tactical paintballs at each other for endless entertainment. The court resolves civil disputes. Litigants are expected to behave as rational economic actors in the process. They are not entitled to more than their fair share of the scarce public resource that the court represents.”
At para 24, Justice Myers states that the simple act of scheduling and hearing motions would be harmful in this case. Scheduling another motion would open up the doors for another round of “chess”. There could be cross-examinations, summons, a refusals motion, an appeal, the possibility of cancelled discoveries, or a request to defer setting the actions down. “What tidbits of information will be learned that can then be used (with appropriate outrage and flourish) to start the next phase of recriminations and motions?”
At para 25, Justice Myers notes that the parties have “no natural limits on their zeal to bring proceedings. Cost and delay does not seem to matter… the harm of allowing a motion to veer the parties from the straight and narrow path to trial far exceeds any possible benefit from an order that cannot bind the trial judge in any event.”
As the courts grapple with the backlog, a culture shift towards moving matters towards a final determination on the merits matters more than ever.
(Views are my own and do not represent the views of any organization.)