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/1541334
6 www.lexpert.ca Feature e lawyers say several proposed rules could help tackle systemic delays in commer- cial disputes. Matthews says one such proposal is to start resolving procedural issues through conferences rather than motions. e CRR Working Group framed this proposal as a solution to the "motions culture" fostered by Ontario's current civil rules, which essentially involves litigants being "entangled in endless battles over the process that will govern how the dispute will be litigated." is type of scenario is particularly preva- lent in commercial litigation, Matthews says, adding that "if that motions culture is abol- ished or scaled back, that would have a mean- ingful impact on how quickly cases can get to a determination on their merits." Another promising proposal is requiring parties to disclose only documents they intend to rely on and "known adverse documents" during discovery. In contrast, the current system requires parties to comprehensively identify and produce documents related to a case, which Graham says can be particularly burdensome in business or corporate disputes. Graham says these types of disputes "tend to be document-heavy cases," so the change holds a lot of potential for helping disputes move through the court system faster. She argues that while she is sympathetic to the concerns of some lawyers, who have opined that such proposals to "cut corners" can prevent certain types of disputes from being litigated meaningfully, "more procedure doesn't necessarily mean more fairness. "I think there will be instances where a more streamlined process has a negative impact on a particular case or a particular circumstance," Graham says. "But overall, I think that streamlining the process will serve the imperative of improving access to justice." Graham and Matthews both identify the CRR Working Group's proposal to restrict dispute timelines to two years, from start to finish, as one of the reforms most likely to have a major impact on commercial liti- gation delays. However, both lawyers say they also see potential issues with ensuring the timeline is followed. Matthews notes that the current civil rules already impose certain litigation timelines that have been hard to enforce "in any meaningful way." For any reforms to function as intended, "they have to be sufficiently judicially resourced," he says. "It's fine to create a new regime that has strict timelines and a goal of having all proceedings brought to a final determination within two years. "But if the court system is not equipped to facilitate that and there aren't a sufficient number of judges or other court resources to enable the rules to function as they're intended, then the goal is ultimately not going to be achieved of getting these cases determined within two years." For Graham, a key concern is ensuring the current "maximalist" ethos prevalent in litigation does not carry over into the new system. "One of the defining aspects of success of a reformed system will be how it copes with efforts to litigate in the old style within the reform system," she says. e proposal to cut down on document production obligations during discovery, for example, offers parties the option of requesting additional documents via a so-called Redfern schedule – a table that lists the sought-aer documents and argu- ments for why they are relevant to the case. at option is intended to be "targeted and specific," Graham says, but parties could potentially cra overly broad Redfern requests that "effectively return the parties to the relevance-based production model" in effect now. But Graham remains hopeful the bar will manage any changes well. "I think there are real legitimate concerns, and I don't want to be taken to be cavalier about that," Graham says. "But I really do believe that we are capable of more stream- lined processes and that we're capable of doing things better and faster if we embrace the kind of cultural shi that the Supreme Court… suggested was a requirement to improving access to justice. "[It's] something we should all care about and something that I think all of our commercial clients want to see," she adds. "All participants in the system – from the courts and judges to counsel to the parties – [play] their part to achieve timely justice" Ian Matthews, BORDEN LADNER GERVAIS LLP "One of the defining aspects of success of a reformed system will be how it copes with efforts to litigate in the old style" Moya Graham, MCCARTHY TÉTRAULT LLP