"I was bankrupt twice in my life. Once when I lost a
lawsuit and once when I won one." – Voltaire
supposedly said something like this in the 18th century. Are we in
the same situation in 2010?
The answer is a resounding, "We don't have to
Changes made to the Rules of Civil Procedure in Ontario
in January of this year have given judges a new power to determine
key issues in a lawsuit, before a full-blown trial.
This can mean the entire case can collapse much sooner, with
significant costs savings.
The important thing is to find lawyers who are prepared to adapt
their thinking to make use of this change. As Justice Colin
Campbell wrote recently, the change in the rules will achieve
success "only if at the same time there is an accompanying
change in the prevailing legal culture".
Who can benefit from the changes?
A party with a good case, whether a plaintiff or defendant, can
Generally, it is in the interest of a party that will likely
lose in a lawsuit to delay the date of paying out money for as long
as possible. Before the recent rule changes, all that was needed to
keep a case scheduled for a full-blown trial was to raise a factual
dispute between witnesses on an important issue. Today judges have
the power to decide those issues at a "mini-trial".
Take an example. A purchaser of property bought for development
discovers after closing that it is affected by substantial
permanent easements preventing the planned development. He sues his
lawyer who failed to discover and advise him about the easements,
although aware of the development plans. The lawyer defends saying
he told the client about the easements and their potential impact,
but the client chose to drop his development plans and purchase
anyway. The client swears there was no such conversation. Under the
old rules, the client would have to wait, probably several years,
for a trial. He could not bring a motion for judgment because the
judge would not be willing to decide which witness to believe on
the basis of written statements. He would want to watch both
parties give their evidence and be cross-examined.
Under the new rules, the judge could hold a
"mini-trial". The witnesses would come to court to give
their evidence on that issue alone. If the lawyer was disbelieved,
his entire defence would probably be decimated. The only remaining
question would be the amount of damages.
Access to justice is inversely proportional to the time it
takes to get to trial
The old maxim applies to litigation as to everything else: work
tends to expand to fill the time allotted to complete it. If a
litigant cannot get his or her case heard reasonably quickly, even
the most sophisticated judicial system in the world is of limited
use. Of all the human suffering Shakespeare could have listed in
Hamlet's famous soliloquy, he chose to include the law's
delay. The longer a matter takes to get to trial, the more it
costs, emotionally and financially. The more it costs, the more
likely it will fail the rational cost-benefit test, even if it is a
deserving case. By delaying a trial, a party with a weak case can
drive opponents to the point where settlement is the only option.
If the party with the weaker case also has greater financial
strength – one obvious example is insurance companies
– the combination is deadly.
There is, of course, much to be said for resolving civil
disputes through rational communication, cooperation and
compromise. However, in our effort to embrace these laudable,
loftier standards, we must take care not to throw the baby out with
the bath water. Individuals have rights. Classes of people have
rights. Corporations have rights. Sometimes it is not appropriate
to "saw off" rights. For those situations, we have an
adversarial legal system that has been tried and tested for
centuries. We must preserve it as a viable option for the
protection of rights. The amendments to the Rules of Civil
Procedure in Ontario in 2010 help do that. Now we need the
legal profession to make use of them.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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