Faster Lawsuits, Please. Innovative Judge Forces Parties to Quickly (and Carefully) Choose Their Strategy

The Problem

It is no secret that civil lawsuits in Ontario proceed quite slowly.

One of the many interim steps involves arguments between parties which arise from the Examination for Discovery process.  For example, one party requests information from one party (i.e. if you were hurt in this accident, disclose your personal health records from before this accident so I can verify your health condition) and the other party refuses.

To solve such a problem, you have to book a court motion in order to argue the issue before a Master or Judge.  The decision making is forced onto the Court, which has limited resources.

Expect to wait about 3 to 6 months for a motion date in Toronto.
The Innovation

In the brief endorsement of Justice Brown in Bank of Montreal v. Faibish, 2013 ONSC 5848, His Honour was dealing with multiple parties and the issue of refusals given by certain parties at Discovery.

The Court does not appear to be particularly impressed by the inability of counsel to resolve this (common) problem of refusals and states:

IV. Refusals

[6] In these times of very constrained judicial resources, I am loath to schedule refusals motions, in large part because experience shows that in most cases they have little tangible impact on the evidence adduced at trial. Dare I say that frequently refusals are no more than tactical posturing by a party, and when the party is faced with the issue of what a trial judge likely will want to hear by way of material evidence, advisements or refusals often crumble in the weeks just before trial.

Typically, the Court simply allows the parties to schedule their refusals motion and then schedules a timetable for the lawsuit accordingly.

In this case, Justice Brown imposes an innovative choice, forcing the parties to re-consider their positions closely, as well as increasing the pressure on the parties to attempt to look past minor issues and instead at the ‘whole’ litigation picture:

[7] Accordingly, I offer the parties a choice on the issue of any remaining refusals:

(i) Option A: I am prepared to write an endorsement which states that the parties have agreed to refrain from bringing refusals motions, but on the clear understanding that by so doing they will not be faced at trial with the submission by an opposite party that their failure to move on refusals should work against them. Under this scenario, if, at trial, an issue arises about a question refused, then the trial judge can consider the matter. If the trial judge concludes that the refusal was proper, so be it. If the trial judge concludes that the refusal was improper, then an adverse inference would be drawn against the refusing party for failing to disclose material evidence; or,

(ii) Option B: Alternatively, if the parties cannot agree on that approach, they should let me about the volume and the nature of the refusals on which they wish to move. I will consider whether or how to schedule a refusals motion. I should observe that in light of the offer of Option A, if the parties insist on a refusals motion, they risk cost consequences if their positions turn out to be incorrect.

The parties shall send me a joint letter no later than September 30 advising which option they choose.

This is a decision that the party refusing to answer should weigh carefully.  If that party forces a motion now on the issue of refusals, then beware cost consequences should they lose the motion.  On the other hand, allowing the requesting party the ability to argue, at Trial, that they can still pursue the issue despite not bringing a pre-trial motion is risky, given that Trial is a take-no-prisoners proposition and no advantage can be ceded to your opponent.

Likely the parties will reconsider their refusals and narrow them down to the most important ones and force a motion at this time.  Stick to your strengths, pick your battles and play to the endgame.

Gregory Chang
Toronto Insurance Lawyer