Canada: Proportionality Trumps "Old Brain Thinking" Post-Hryniak

Last Updated: February 9 2015
Article by Jason Woycheshyn and Gannon Beaulne

In the recent decision of Letang v Hertz Canada Ltd, Justice Myers refused to adjourn a trial date despite the last-minute production of documents, decrying "old brain thinking" that has thwarted timely access to Canada's civil justice system. This decision represents one judge's answer to the Supreme Court of Canada's clarion call in Hryniak v Mauldin for a "culture shift" towards greater access to justice and proportionality.

In October 2010, the plaintiffs in Letang sued four Hertz entities for $3.5 million in damages for failing to enter into a franchise relationship despite written agreements allegedly requiring them to do so. The action proceeded through discoveries, and the trial was scheduled for January 2015. Two months before trial, a pre-trial conference judge suggested that the plaintiffs deliver further documentation to support their damages and expert evidence. A month before trial, the plaintiffs delivered 465 documents to Hertz. The plaintiffs admitted that the documents revealed errors in their financial statements and damages calculations but argued that the documents also disclosed $120,000 in additional damages.

On receiving these documents, Hertz sought the plaintiffs' consent to adjourn the trial to allow for further discovery. Although unwilling to consent to an adjournment, the plaintiffs offered to produce a plaintiff for further discovery and walk away from their additional claim of $120,000. Hertz refused because the holidays were approaching and their expert witness was apparently not available to review the new documents. Hertz moved to adjourn the trial for 90 days. The motion was returnable one week before the scheduled trial date.

Justice Myers refused to adjourn the trial. He underscored that a culture shift is necessary to ensure access to justice—which was identified in Hryniak as the greatest challenge to the rule of law in Canada today. The length and cost of civil trials mean that most Canadians cannot access the civil courts. Although fairness and justice cannot be compromised, undue process and protracted trials can prevent a fair and just resolution of a dispute. The Supreme Court therefore recognized that fairness and justice are illusory unless the civil justice system is also proportionate, timely and affordable.

Justice Myers continued that Hryniak suggests that the best forum for resolving a dispute is not necessarily the forum with the most painstaking procedure. Lawyers—especially at larger firms—routinely deal with cases involving tens of thousands of documents; a junior lawyer might only need a few hours to read 465 documents, depending on the content of the documents. Justice Myers thus accepted that Hertz could have requested the documentation earlier or, failing that, should have been able to review them, forward them along to their expert and then proceed with further discovery, all within a month. Instead, Hertz served a three-volume motion record seeking an adjournment.

Justice Myers decried the "old brain thinking" implicit in Hertz's approach, especially where the same effects as additional discovery could arguably be achieved by cross-examining the plaintiff and his expert on the new documents at trial. He concluded that, at least sometimes, perfect disclosure and discovery must give way to proportionality: "There does not need to be perfect disclosure and perfect discovery on every path and alleyway in order to achieve a fair and just outcome of the case on the merits." To achieve the goals outlined in Hryniak, Justice Myers suggested that delay at all stages of litigation should be recognized as a serious form of prejudice that undermines access to justice and "rots the uncompromisable goals of fairness and justice". Justice delayed is justice denied.

If courts are recognizing delay as intrinsically prejudicial, the culture shift mentioned in Hryniak is well underway. But Letang leaves litigants with perhaps more questions than answers, despite indicating at least one judge's enthusiasm for the important project of making civil courts more accessible. Some procedural steps are allowed almost automatically unless they would prejudice a party in a way that could not be compensated for by costs or an adjournment. Will judges cite Hryniak as authority for refusing to permit such steps where the relief requested is viewed as not worth the delay it may cause?

If so, it would signal a significant change in civil litigation practice. It might also cause unanticipated problems. If the determination of whether procedural steps should be permitted depends on a case-specific exercise of judicial discretion, litigants might be impelled to contest procedural steps historically resolved on consent—for example, adjournments and amendments of pleadings. Ironically, an injection of unstructured judicial discretion into civil procedure could produce more delay. It could also generate uncertainty, unpredictability and the uneven application of principles previously thought to be settled.

The full legacy of Hryniak is not yet clear. But if Letang is any indication, at least some judges are becoming increasingly aggressive in rooting out "old brain thinking" that has caused delays in moving litigation forward. And it might mean that judges are finally abandoning the idea of "perfect" discovery as the gold standard in every case.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jason Woycheshyn
Gannon Beaulne
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions