Has the method tradition modified? – Litigation, mediation and arbitration

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In 2014, the Supreme Court of Canada in Hryniak v. Mauldin, Section 7, issued a court order for clarification. The court called for a “culture change” in Canada, requiring the judiciary and lawyers to use more efficient methods of resolving disputes between parties.

Almost seven years later, the cultural change is still in its infancy. The pandemic has exacerbated the problems identified in Hyrniak: judicial resources are scarce; Courts remain under great pressure; and now more than ever, the need for “quick justice” has become acute.

A recent ruling by the Ontario Court of Appeal, Louis v Poitras 2021 ONCA 49, deals directly with cultural change.

Louis concludes that in the event of a pandemic, in the interests of administrative efficiency, appeal courts should resort to case management solutions deployed by the lower courts.

The Louis approach may very well come at the expense of legalistic purity – but it can also be a necessity in the COVID-19 era.

Think locally

Louis included a motion to delete a jury notice.

In two jointly negotiated motor vehicle accident actions, the defendants submitted separate reports to the jury. The processes were heard in April 2020 until the pandemic broke out.

In the summer of 2020, the plaintiff requested that the jury’s announcements be deleted. At this point in time, no court in Ottawa was planning a civil jury trial. However, solitary trials of three weeks or less were available. The petitioner granted the relief requested by the plaintiff.

After a detailed analysis of the status of court cases against civil juries in Ottawa, the court ordered that the two trials take place in three-week tranches before a judge alone. The petitioner noted that the profession had already been officially informed that civil jury trials would not take place in Ottawa until January 2021. For example, only a small number of courtrooms in Ottawa have been renovated to contain the plexiglass necessary to prevent the spread of COVID-19.

On appeal, the Divisional Court overturned the complainant’s order.

The motion judge’s solution to cancel the jury’s notice is arbitrary. In the Divisional Court’s view, the decision lacked evidence. It was based solely on the motion judge’s concerns about the late trial and there was insufficient evidence of “real prejudice against the parties”.

In the event of a further appeal, the appeal court overturned. The Divisional Court should have relied on the petitioner’s discretion to find a pragmatic and efficient solution to move the case forward in the Ottawa civil justice system.

An “Unprecedented Crisis”

Louis’ decision is an unprecedented decision for the Ontario civil justice system.

The court began its analysis by discussing why Hyrniak ushered in an era of civil justice reform. At that time, in 2014, the system was “overwhelmed” and access to justice was jeopardized. These concerns were only heightened during the pandemic.

Louis’ first sentences illustrate the toll that COVID-19 has taken on for the efficient operation of the courts:

“… the COVID-19 pandemic has significantly reduced the availability of courtrooms. Inevitably, judicial proceedings had to prioritize criminal and family cases in order to undermine the timely settlement of civil cases … Procedural reforms have been implemented to address the challenge of including the increased use of electronic filings and hearings … more fundamental changes to the way the civil justice system works are being considered, such as the possible elimination of civil jury trials … Supreme Court justices work tirelessly to keep the civil justice system afloat. “

Recognizing that the judicial system is in “an unprecedented crisis”, the court ruled that accordingly, intermediary appeals courts should use local and creative solutions for efficient case management.

This means that only in “rare situations” should an appeals court “override decisions about discretionary case management”. Unnecessary interference in the practical application of the law by the lower courts to local conditions should be discouraged. The right to trial was always at the discretion of the motion judge.

In Louis, at the time the motion to strike against the jury was heard, it was unclear when a civil jury trial would take place in Ottawa. At the beginning of the pandemic, judicial resources had to be reallocated elsewhere. Accordingly, in the view of the appellate court, the Divisional Court’s decision to uphold the notice of the jury contradicted the reality of litigation in Ottawa and, accordingly, Hyrniak’s “cultural change”:

“This case accurately captures the competing approaches to crisis management faced by the civil justice system. The motion judge approached this case practically because he was aware of his responsibility to the parties and the system to move cases forward and provide timely service to offer … the department The Court of Justice has misappropriated the new reality of civil justice …. [It engaged in the] Kind of complacency that has caused a systemic delay in the civil justice system and criticized by the Supreme Court of Canada in Hryniak. ”

Local judges, not appeals courts, “are best placed to understand the availability of resources and the appropriate approach in the circumstances of a particular case.”

In other words, the context is important. Courts of appeal, which intervene in discretionary decisions on case management, allegedly hinder access to justice and do not promote it.

What cultural change means for case management

The message in Louis is clear: The cultural shift in litigation, especially in a pandemic, requires lawyers and courts to adopt and respect pragmatic case management solutions.

While “quick justice” can come at the expense of non-compliance with legal tests and encourage a degree of arbitrariness, the appeals court is willing to take its risk.

Local, creative solutions for test management should have priority. The proper functioning of the judicial system depends on an idiosyncratic understanding of civil law operations at the lower court level.

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The content of this article is intended to provide general guidance on the subject. You should seek advice from a professional about your particular circumstances.

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