The Ongoing Hryniak “Culture Shift”.

Last June I posted on how Canadian courts and creative counsel are using the Supreme Court of Canada’s decision in Hryniak v. Mauldin to improve access to justice by crafting procedures to bring cases to trial in a more efficient and cost effective way.

Last month in Letang v. Hertz Canada Myers J., invoking Hryniak, delivered a caustic attack on delay and the Toronto “motions culture” (see my post here – “Old Brain Thinking”).

The decision of Myers J. in Pinto v. Kaur last week, applies the Hryniak  “culture shift” in the context of costs.

Pinto was a motor vehicle case. The key issue was whether one defendant had driven the vehicle without the consent of another defendant who was the owner. The plaintiff’s insurer, which would respond if the owner’s consent had not been given, sought production of contemporaneous communications between the owner and his insurer. Despite undertakings and an order, these were not produced for a very long time. When the contemporary communications evidence was at last produced, it established the owner had not consented. The plaintiff’s insurer then accepted liability for coverage. The owner’s motion for dismissal of the claim was successful. He also beat his offers to settle.

Invoking Hryniak Myers J. awarded costs of the wasted motion against the successful party because had he produced the documentation of contemporaneous communications when asked, his motion would not have been necessary:

“Waiting to leisurely fulfill undertakings until trial preparation begins in earnest is no longer sufficient. Law firm administrative structures that only assign a staff member to freshen document production and to fulfil undertakings on the eve of trial may be understandable as a desire to defer avoidable costs in the event that settlement occurs at a pre-trial conference as it so often did in past. But pre-trials are no longer necessarily going to happen in the post-Hryniak environment. Moreover, nothing can just wait any more. Counsel must be proactive in all steps to bring each action to the most efficient and affordable resolution…

The culture shift requires all participants in the civil justice system to embrace the goals of efficiency, affordability, and proportionality. This means that all participants will have [to] implement real changes to accommodate a faster, less expensive, and a far more just and workable civil justice system.” (Emphasis in the original.)