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.

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Jason Woycheshyn
Gannon Beaulne
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