Recently, the Ontario Superior Court of Justice released a decision that dispenses with "perfect" documentary disclosure and sets higher expectations for "big-time" law firms that deal with paper-heavy lawsuits. The court's message: More documents do not mean more delays. Make sure your lawyers are ready for trial!
In Letang v. Hertz,1 the defendants sought an adjournment after the plaintiffs voluntarily disclosed some 465 additional documents just one month before the start of trial. The documents were mainly copies of cheques, cheque stubs, bank statements and a few notes concerning financial calculations. They were disclosed at the suggestion of the pre-trial judge as a way to foster settlement. While the documents demonstrated that the plaintiffs were entitled to an additional $120,000 in damages, they also revealed that the plaintiffs made errors in their damages calculations.
Upon receiving the documents, the defendants immediately brought a motion to adjourn the trial so that they could review the evidence with their expert and conduct further discovery. At the motion, however, Justice Myers refused to grant the adjournment and ordered that the trial begin the following week, as scheduled.
MORE DOCUMENTS DO NOT MEAN MORE DELAYS
Justice Myers found that while 465 documents seemed like a significant amount of information, it actually was not. National firms (including the two reputable Bay Street law firms involved), should routinely deal with cases with tens of thousands of documents. A junior lawyer could probably have reviewed the documents in a few hours. Justice Myers made clear that today's law firms are expected to have sophisticated computer-based procedures to deal with document-heavy cases so that delays are avoided.
IMPERFECT DISCLOSURE IS PERFECTLY ACCEPTABLE
The defendants wanted an adjournment to obtain even more documents that would undermine the plaintiffs' damages calculations and destroy their credibility. Justice Myers found that the same effects could be achieved by simply cross-examining the plaintiffs and their experts on the correct numbers at trial. As Justice Myers put it: "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" (para 18 of decision).
REJECTING THE "OLD BRAIN THINKING" OF USING MOTIONS AS A DELAY TACTIC
Justice Myers criticized the defendants' failure to act quickly in dealing with the disclosure: "the idea that the defendants can ignore a trial date and sit on material for a month without bothering to call their expert and just deliver another fat motion record to buy 90 days of unlimited discovery time for more fishing for documents is old brain thinking" (para 18). While expressing his disdain for the procedural gamesmanship, incessant delay, and endless discovery that pervades "traditional Toronto motions culture" (para 16), Justice Myers opted for a legal system rooted in proportionality, timeliness and affordability.
LESSON LEARNED AND IMPORTANT CONSIDERATIONS FOR CLIENTS
The important lesson to be learned is that clients should be wary of the lawyers and the law firms they choose. With the growing sophistication of technology and the increasing ability to retain and retrieve information, lawsuits are becoming more and more document heavy. This reality, however, cannot derail the courts' — or our clients' — need for speedy justice.
When choosing a law firm, clients should keep in mind the following qualities that they should look for — and expect — in their lawyers:
- They are equipped with the right technology and skills to deal with document-heavy files. This includes the use of document-management software and having junior lawyers or clerks available to review documents quickly and efficiently. Your lawyer should also have, as a core legal skill, experience and facility in dealing with voluminous client information.
- They act quickly and efficiently in the face of unexpected issues (especially on the eve of trial). Lawyers cannot bank on getting an adjournment when the unexpected arises, even on the eve of trial. They must be prepared to deal with the unexpected, and do it quickly, because the courts and their clients expect timely justice to be top of mind.
- They are capable of dealing with imperfect disclosure. Perfect disclosure is non-existent in the age of proportionality and timeliness. Your lawyer must be prepared to deal with this reality as your case proceeds to trial.
- They think long and hard about any motion they bring. Exercising delay tactics will not be condoned by the court and is not necessarily in a client's financial or strategic interests. Make sure you have a lawyer who takes the time to explain the strategy, utility and the benefits of bringing a particular motion, because you will likely be on the hook for costs if you lose.
Originally published by Taxes & Wealth Management, March 2015 | Issue 8-1.
1. 2015 ONSC 72.
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