Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1163340
30 LEXPERT MAGAZINE | Q3 2019 cost of litigation." Nadia Campion, a partner at Lax O'Sullivan Lisus Gottlieb LLP, offered this comment: "Litigation could be streamlined with more rigid adherence to case manage- ment timetables and the application of cost or other consequences to those parties who fail to comply with court-ordered or con- sensual timetables. Interestingly, a similar suggestion was made by the Law Commis- sion of Ontario in its recent report recom- mending reforms in the class action sphere." [for more on the LCO's Class Action Re- port, see p. 37). Edward Babin of Babin Bessner Spry offered these two recommendations: A move to single judge case management should continue to be encouraged. Our experience with the Commercial list has shown that this is the single best way to streamline civil litigation. A dedicated case management judge is in a far better posi- tion to deal with delays, production issues, scheduling and unnecessary motions. We should also continue to encourage the use of technology at all stages of the litigation process, for at least more complex cases. Again, our experience is that the use of such technology, both for discovery and at trial, can significantly streamline the process, from both the client and the court's perspective. Finally, Lexpert brings you this column on streamlining contractual disputes, starting long before and continuing into the trial. Canada: Streamlining Contractual Disputes With An Expert BY RICHARD WONG AND PETER MAJOR QC Carefully draed alternative dispute reso- lution ("ADR") clauses can be tailored to parties' needs in solving disputes in a timely manner. Binding arbitration has commonly been implemented to limit the time and cost spent in court by providing finality to the dispute at issue. Similarly, limits on discovery can streamline issues and, in a recent Alberta Court of Queen's Bench case, the Court confirmed that a properly draed contractual clause can provide selected experts with significant decision-making authority, including the ability to consider and resolve legal issues when fulfilling their mandate. In Applied Industrial Technologies, LP v Sirois, 2018 ABQB 818 ("Applied") Applied Industrial Technologies, LP (the "Purchaser") was scheduled to purchase the shares of several companies known as the Reliance Group (the "Vendors") pursu- ant to a share purchase agreement ("SPA"). A term of the SPA provided that disputes over certain adjustments to the purchase price of the Vendors were to be determined by a nationally recognized accounting firm "as expert and not arbitrator," the expert's determination was to "be final and binding on all parties" and "not be subject to appeal, absent manifest error." In this case, the Purchaser delivered a Closing Balance Sheet to the Vendors, who objected, thus engaging the expert deter- mination process. e Vendors' objection included the argument that the relevant fig- ures for Reliance USA (one of the Vendors) at April 30, 2014 in the Closing Balance Sheet and the Combined Target April 2014 Net Profits Statement must be converted to Canadian dollars from US dollars at the prevailing exchange rate at closing, rather than at par. e parties selected a mutually agreeable expert pursuant to the SPA and the expert determined that the currency conversion must be made at the prevailing currency exchange rate at the closing date. e Purchaser applied to set aside the expert's decision arguing that the expert's professional qualifications (i.e., financial and not legal) meant that the expert could not decide questions of mixed fact and law including interpretation of the contract. As the expert was not an expert in law, the par- ties would not have intended that it answer legal matters and was confined to only as- certain accounting practices, assess compli- ance with generally accepted accounting principles, and compile financial informa- tion based on same. e Vendors and McLennan Ross LLP's partner, Corbin Devlin, disagreed and were successful. In the reasons resulting in the CLAIRE WILKINSON MARTIN AND HILLYER ASSOCIATES, BURLINGTON "The lack of judicial resources and the volume of litigation being managed by our judges is stretching our system to the point where litigation wait times have [become] dysfunctional in certain re- gions. We need to find innovative ways to deliver legal services, dispute resolution mechanisms, and ultimately adjudication of matters in dispute that cost less and are more efficient." regions. We need to find innovative ways to deliver legal services, dispute resolution mechanisms, and ultimately adjudication of matters in dispute that cost less and are more efficient." John Adair, of Adair Goldblatt Bieber LLP wrote: "e single biggest change I would like to see made in order to streamline civil litigation is for most civil motions to be heard in writing. Perhaps oral argument would occur only when the judge reading the materials believes it is required, which is similar to the U.S. model. Most of the 'run of the mill' civil motions (pleading amend- ments, discovery disputes — be they oral or documentary) are decided or very close to decided before counsel attend for oral argu- ment in any event, so little would actually change in substance, but the delay caused by these motions could be reduced sig- nificantly. is would of course require the government to put additional resources into providing judges with the support they need to deal with more matters at any particular time (more judges, and more support in the form of clerks), but that is a small price to pay for meaningful change in the delay and