“Old Brain Thinking”

When I left a mid-sized firm to set up my own litigation practice three years ago, to describe my approach to civil litigation I used Seneca’s famous axiom which frames my business logo – “Truth hates delay”.

That message reverberates with new power through a decision released this month by Justice F. L. Myers in Letang v. Hertz Canada.

Myers J. refused a defendant’s request to adjourn a trial to permit discovery on 465 pages of documents produced by the plaintiff a month before trial.

The new productions suggested the plaintiff’s damages were $120,000 higher than the $3.5 million sought in the claim. The plaintiff agreed to further discovery providing it did not delay the trial date. He also offered to waive the additional damages.

The defendant delivered a 3 volume motion record on Christmas eve seeking the adjournment. It pointed out that its damages expert was unavailable given the holiday season to assist with the new documents.

In rejecting the adjournment request Justice Myers observed the defendant did not concentrate energies on promptly reviewing the new material, to the extent it did not require the expert. Nor did it make arrangements to get the expert’s input before the holidays. Instead the defendant’s lawyers,

“…did what counsel steeped in the traditional Toronto motions culture do – they served a big, thick motion and waited for their adjournment.”

His Honour noted a disparity between the parties. The plaintiff was an individual whose financial security was at risk and who sought his day in court without the stress and prejudice of further delay. The defendant was a substantial company to whom trial, the judge found, “is a matter of course”.

His Honour relied in particular on language in the Supreme Court of Canada’s decision in Hryniak to the effect that undue process can prevent the fair and just resolution of disputes.

The judge described expectations of perfect discovery and entitlement to adjournments to take a “romp” through backup financial documents, as “old brain thinking”.

In some of the most powerful language I have seen ascribing harm to the administration of justice caused by delay, Myers J. wrote:

“Courts and counsel must recognize that delay is itself a disease that eats away at the justice and justness of the system. The Court of Appeal has recognized the importance of prosecuting civil cases quickly in many cases dealing with dismissal for delay. But the last decade of efforts has proven that delay cannot be combatted successfully just by dismissing the oldest cases. Delay at all stages should be recognized as a serious form of prejudice that undermines affordability and proportionality and rots the uncompromisable goals of fairness and justice.”