Regulating Proportionality in Civil Litigation

The rules of civil procedure in Manitoba are about to undergo significant changes. Amendments to the Court of Queen’s Bench Rules, effective January 1, 2018, will introduce an overarching requirement that the Court considers proportionality in making orders and directions under those Rules.

A new Practice Direction outlines the breadth of the changes about to come into force in respect of case management of civil proceedings, scheduling of trials, use of judicially assisted dispute resolution and summary judgment proceedings.

The Practice Direction describes the objectives underlying all the changes as follows:

Animating the comprehensive amendments to the Court of Queen’s Bench Rules coming into force on January 1, 2018 are the overriding objectives of timely and affordable access to justice and the principle of proportionality. While these objectives and this principle are reflected in essentially every new or modified rule, it is anticipated that judicial involvement in managing cases, which is pervasive throughout the new rules, will be a particularly effective tool in ensuring that these objectives and this principle are achieved.

It will remain to be seen whether and to what extent these laudable objectives can be achieved. It is unlikely that rule changes alone will result in timely and affordable access to justice, absent the kind of change in legal culture described by the Supreme Court of Canada in Hryniak v. Mauldin:

[2] Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just….

[28] This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

These words from Karakatsanis, J., are clearly echoed in the Court of Queen’s Bench Practice Direction. She goes on to note, in Hryniak, that the shift in culture requires a change not only from the Bench but also from the Bar. Unless lawyers adopt the same approach, taking into account their clients’ means and the nature of the case, access to justice will continue to be frustrated, rather than facilitated. The Manitoba Court of Queen’s Bench has now clearly signalled its intent to apply this approach, and I remain hopeful and optimistic that Manitoba litigators are up for that challenge.