Much Sound and Fury, Signifying Nothing

Civil litigators are accustomed to counsel who pose and posture, typically needlessly, and in a manner that is counterproductive to resolution.

No, you will not likely be taking this matter to trial. That would be far too costly, and take far too much time for everyone involved, especially where the legal issues are just not that complex. In the meantime, counsel should put together practical solutions, and leave all the hot air for the sauna.

Unfortunately that is not what occurs in civil litigation, even though the pandemic would appear to call for such practical common sense more than ever. Justice Myers recently lamented this fact in Sheikh v Kathuria, indicating that the culture shift called for in Hyrniak simply has not yet occurred,

[4] Like RSJ Edwards, the motion before me is the poster child for a motion that “in no way advances the litigation to its logical conclusion”. If you look up “Toronto Motion Culture” in a Canadian legal dictionary, the definition should henceforth say, “Sheikh v Kathuria, 2021 ONSC 3273”. 

The litigation involved alleged negligence to a newborn, resulting in cerebral palsy and neurological deficits, but little had been achieved,

[8] It’s seven years later and the parties remain mired in costs and delay about procedural matters. There is much sound and fury signifying nothing.

The motions involved included adding parties and potential limitations issues, as well as a claim of abuse of process. Justice Myers stayed the action, pending the outcome of a motion to amend in a different jurisdiction, but left some parting comments,

[31] Both sides are fighting about what kind of motion or worse, motions, will be needed to resolve the Toronto doctors’ limitation defence…

[32] How many years and tens of thousands of dollars will be spent on the clever strategizing to avoid or to enforce a motion with a minimal burden that usually goes on consent?

[33] The cases could all be at trial and the limitation period dealt with on the full record rather than spending years to keep out extra doctors whose “insurer” is already before the court.

[34] How does a court or any lawyer on any side tell [the plaintiff]’s family that under our civil justice system, the resolution of their claims for compensation for [the plaintiff]’s disastrous injuries is being deferred and costs substantially increased by tactical and strategic positioning over who bears the burden of proof on a procedural motion to review the limitation period that is not yet even advanced by one set of doctors?

[35] The plaintiffs may or may not succeed in any of their claims. I have no idea. But are they not entitled to some effort to provide them timely, affordable, fair access to civil justice?
[emphasis added]

Indeed, an entire province of parties bogged down in this same system are asking exactly the same questions.

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