CITATION: Pinto v.Kaur et al., 2015 ONSC 1356 COURT FILE NO.: CV-11-424811 DATE: 20150302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARGARET PINTO
Plaintiff
– and –
SATBIR KAUR and JASWANT PANNU and AXA INSURANCE CANADA
Defendants
Michael Chadwick,for the Defendant,
Jaswant Pannu
Leonard Collier, for the Defendant, Axa Insurance Canada
HEARD: March 2, 2015
F.L. Myers J.
reasons for decision on costs
Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.
1With these important and powerful words, the Supreme Court of Canada introduced a “culture shift” in the civil justice system throughout Canada. It was just over one year ago that the Supreme Court of Canada challenged courts, administrators, users, the bar, and the public to reinvigorate the civil justice system in Hryniak v. Mauldin, 2014 SCC 7.
2Responding to the challenge is not straightforward. Courts are being asked to work harder and smarter without modern computer resources or sufficient budgets. Administrators are being asked to change decades old processes to accommodate civil cases being seized by a single judge. Processes do not exist for resolution of civil cases in a customized and summary way. Yet the Court recognized that this is required to achieve the goals of efficiency, affordability and proportionality and to avoid cripplingly expensive trials where they can be fairly avoided. The bar too is responding. Bar associations worked closely with the Regional Senior Justice, a number of judges, and Court administration in Toronto, for example, to help put in place the Toronto Region Pilot Practice Advisory – Civil Practice Court (Regional – October 14, 2014, in effect until July 1, 2015). Under the Practice Advisory, Civil Practice Court has been established to bring a form of light touch case management to motions in Toronto. As a result of the work overseen by the Regional Senior Justice, wait times in Toronto for motions and trials are grossly reduced to almost non-existent. Work is now underway, being spearheaded by the Advocates’ Society and others, to improve trial management techniques so as to streamline and shorten trials. Much has been done to make things better in just a short time. Much remains to be done. None of the early successes will be sustainable however, without a cooperative effort among government, the judiciary, and the bar.
3What does it mean to enhance the goals of “efficiency, affordability, and proportionality” in civil justice? It means that we are trying to make a system of civil justice that people can afford to use. It means resolving cases faster. It means resolving cases cheaper. It means resolving cases with an investment of costs commensurate with the amount in issue. While easy to say, how can it be achieved? The Supreme Court of Canada has told us. Civil trials are no longer the default process. Hryniak, supra, at para 43. Rather, cases will be decided summarily – sooner, with fewer issues, with less discovery, with less time committed by counsel, where it is in the interest of justice to do so. At para. 49 of Hryniak, supra, the court held:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
4In the past year, counsel and judges have resolved many cases summarily that would have had to go to trial just a few years ago. I explained one implication of the culture shift this way in Baghbanbashi et al. v. Hassle Free Clinic et al., 2014 ONSC 5934:
There is no right to a trial in civil litigation in Ontario. If the fair and just resolution of the action requires a trial, then a trial will be held. However, it is no more in the plaintiffs’ interests than it is in the defendants’ interests to endure the cost, delay and distress of a full trial if it turns out that the case could have been resolved years earlier and hundreds of thousands of dollars cheaper on a single issue.
5All providers and users of the civil justice system are responding to the culture shift. Everyone bona fide wants to give clients faster, more affordable access to justice. Leaving legal fees aside however, this can only be accomplished by moving cases along faster and doing less before each case is resolved. This is proving difficult for many users. Change usually is.
6Users, especially, large scale users, will have to alter their processes to keep up with the new speed and new limitations on processes required before resolution. Old checklists will have to be streamlined. Perhaps counsel will have to find ways to take on fewer cases at one time if each is to be resolved quicker. It is no longer sufficient, for example, for counsel to come into Civil Practice Court and say that she has discoveries booked for the next six months when motions are booked in Civil Practice Court to a maximum of 100 days out. Proceedings are being brought, heard, and resolved more expeditiously than before. Counsel have to leave room in their schedules to respond to more aggressive scheduling that arises in some cases on the sudden. Similarly, document production and fulfillment of undertakings must occur in a more timely way. These steps cannot be left for months with the thought that the case is slowly climbing its way up a multi-year trial list in any event. That is no longer the case. That’s the old way. It failed.
7Trial preparation will require counsel to meet and take active steps well before trial to ensure that trials are really ready before they start. That too will require a change in how counsel schedule themselves. Moreover cases will move along unique paths depending on how the parties and the case management judges design the process. These are all issues to be discussed among bar associations, court administrators, and the judiciary as new rules and procedures are developed and brought online under Hryniak.
8In this case, the defendant Mr. Pannu moved to dismiss the action against him. He was the owner of the car that hit the plaintiff. The car was being driven by the defendant Kaur. Ms Kaur and Mr. Pannu agreed that Ms Kaur took the car without Mr. Pannu’s consent. The motion therefore was, in reality, a contest between the insurer for Mr. Pannu and the uninsured motorist insurer for the plaintiff, as to which would respond to the claim.
9As set out in my Reasons dated September 15, 2014, reported at 2014 ONSC 5329, there were obvious and significant credibility issues in the story presented by Ms Kaur and Mr. Pannu. It appeared to be quite possible that she was not telling the whole story and that Mr. Pannu might have been pressuring her to avoid having his insurer respond to the claim. By the time of the motion, Mr. Collier, for the plaintiff’s insurer Axa Insurance, had not had a full opportunity to examine Ms Kaur. Mr. Collier had been given undertakings on the examination for discovery of Mr. Pannu in December, 2012, looking for the contemporaneous communication between the Pannu family and their insurer. Mr. Pannu was abroad on the day of the accident and the contemporaneous communication between his family members and the insurer could provide circumstantial guarantees of trustworthiness to the story that looked like it might have been decided upon when Mr Pannu’s returned to Canada and met with Ms Kaur sometime later.
10I determined that the issue of consent was infused with credibility issues that could not be decided at the hearing of the motion without the evidence of Ms Kaur. I made the decision to hold a mini-trial on the issue of consent. I discussed the practicalities of the situation as follows:
Before ordering a mini-trial, the court needs to be satisfied that doing so will allow the court to fairly and justly adjudicate the dispute in a timely, affordable, and proportionate manner. A mini-trial between the defendants will leave the plaintiff waiting for her trial. Should the plaintiff be stalled or might it be preferable from an overall perspective to just go to trial and leave consent to be dealt with as one of many issues at the trial? That is, might a mini-trial represent an inefficient expansion of procedures with a consequent increase in overall costs? This is especially a concern here where examinations for discovery are not complete so that if some further examinations are to be ordered, then the purpose of the examinations, the role of the plaintiff, and the uses which can be made of the transcripts may become issues.
It seems to me that the basic, practical question to be asked is “Will the addition of a mini-trial, with whatever processes and procedures it will entail, make the resolution of the overall case more efficient, affordable, timely or proportionate?” In lay terms, does a mini-trial make the path to a final outcome of this case quicker and cheaper or slower and more expensive? Will the mini-trial risk obscuring witnesses’ voices or require so many witnesses to be heard to avoid that risk that the mini-trial becomes a poor substitute and expensive addition to the trial itself.
Looked at practically, this motion is a contest between two insurance companies. If the court finds that Ms Kaur possessed the car with Mr. Pannu’s implied consent, then Mr. Pannu’s insurer, State Farm, will respond to the plaintiff’s claim. If the court holds that Ms Kaur drove without Mr. Pannu’s implied consent, then the plaintiff’s uninsured driver coverage through her insurer, Axa Insurance Canada, will respond to the claim. Whichever insurer responds, it will be facing a claim based on a rear-ender. Despite Ms Kaur’s statutory declaration, barring unusual circumstances, it is unlikely that liability will be contested at trial. Trial, therefore, is likely to be limited to the issue of the quantum of the plaintiff’s damages. I have no indication about the extent of the plaintiff’s injuries. Unless there is a threshold issue, catastrophic injuries, provable exaggeration, or chronic pain claimed, a trial on damages is also not very likely. That is, once the issue of consent is resolved, barring unusual facts, there is little left to try and the case should settle. In fact, the sooner that the issue of responsibility between the insurers is settled, the sooner the plaintiff’s claim is likely to be resolved.
In this case, therefore, holding a mini-trial may well eliminate the need for a trial altogether. Even if the plaintiff’s claim proceeds, a trial on damages is completely distinct from a trial on the issue of consent. I see no synergies or savings by having them both together as opposed to hearing the issues sequentially. The witnesses on the mini-trial and the damages trial are distinct. There is no risk of allowing affidavits to mask a witness’s testimony. In fact it is the need for limited oral testimony on a gating issue in this case that makes the mini-trial desirable. In this case, resolution may speed up the case, eliminate the need for a trial and, even if not, will not cause any loss of efficiency in the trial process for whatever remains.
If a party cannot win summary judgment on a written record, then the analysis of whether to hold a mini-trial should be a practical one focusing on whether there is benefit to all parties by resolving issues sequentially and whether efficiencies can be found or may be lost by doing so. If holding a mini-trial does not enhance the prospects for overall resolution in a tangible and not merely hypothetical way, or if the mini-trial will cause a loss of efficiency, increased cost, or delay that cannot be controlled with careful case management, then the case should proceed toward trial with the motion judge seized with case management in all but exceptional cases as required by the final steps in the Hryniak roadmap.
11The need for disclosure and fulfilment of undertakings by Mr. Pannu and his insurer was noted in my Reasons as well.
12At a Case Conference held on September 23, 2014 to discuss procedures for the mini-trial, I gave the following direction:
The Court directs that within sixty days the defendant Jaswant Pannu provide answers to the questions that he undertook to answer at his examination for discovery. The undertakings may be supplemented by Mr. Collier asking a limited number of additional requests for documents or will-say responses tailored to issues related to the relationship between Ms Kaur and the Pannus, the employment of Ms Kaur, and communications by the Pannus with the police, their insurer and each other near the time of the motor vehicle accident. These responses will also be provided within sixty days provided that Mr. Collier puts his requests in writing to Mr. Chadwick this week. I may be contacted for a summary determination if there are issues as to the scope of Mr. Collier’s requests. It is my fervent desire that counsel will be able to resolve issues such as that without the intervention of the court.
13The defendant Pannu did not answer his undertakings or produce the required documents as directed by the court.
14A further Case Conference was held on December 2, 2015 by telephone. At that time I noted that the defendant Pannu had still not fulfilled his undertakings given three years earlier and I required orally that he do so forthwith.
15The mini-trial was scheduled for two days in February, 2015.
16Documents were finally produced by the defendant Pannu on the eve of the mini-trial. They showed that the Pannus made a contemporaneous complaint to their insurer consistent with their claim and that this position was taken before Ms Kaur had spoken to Mr. Pannu upon his return to Canada. As soon as Mr. Collier received the documents, he advised that Axa consented to the motion and that Axa would respond to the plaintiff’s claims.
17The defendant Pannu seeks costs of the motions. Not only was he successful in having the claim against him dismissed, he met or beat his offers to settle.
18There is just one problem with Mr. Pannu’s argument. Had he fulfilled his undertakings given in December, 2012 or just made disclosure as requested and agreed, the whole motion would never have been necessary. Waiting to leisurely fulfill undertakings until trial preparation begins in earnest is no longer sufficient. Law firm administrative structures that only assign a staff member to freshen document production and to fulfil undertakings on the eve of trial may be understandable as a desire to defer avoidable costs in the event that settlement occurs at a pre-trial conference as it so often did in past. But pre-trials are no longer necessarily going to happen in the post-Hryniak environment. Moreover, nothing can just wait any more. Counsel must be proactive in all steps to bring each action to the most efficient and affordable resolution.
19As I was struggling with the practical aspects of the decision to hold a mini-trial to resolve the action in my Reasons above, there was one practical step that would have been even more efficient and cheaper to resolve this action - Mr. Pannu’s insurer could have produced its documents as undertaken. In light of Mr. Collier’s response once the documents were disclosed, had the contemporaneous documents been provided to Mr. Collier and Axa on a timely basis, I have no doubt that Axa would have agreed to assume carriage of the action without the need for Mr. Pannu’s summary judgment motion being brought.
20The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.
21In this case, in my view, rule 57.01(1)(f)(i) is the dominant consideration. It allows the court to take into account in assessing costs, “whether any step in the proceeding was…unnecessary”. The entire motion process was unnecessary and could have been avoided if Mr. Pannu had fulfilled his undertakings in a timely manner. Its counsel could have sat down with Axa’s counsel in 2011, when Axa was added as a party, and discussed cooperatively what Axa needed to see to make a decision. If that was not yet the way things were done, then, Mr. Pannu and State Farm certainly knew that they were required to fulfill undertakings well before I ordered them to do so and yet they continued to delay despite my directions up to the eve of trial. Considering the Boucher factors, and especially rule 57.01(1)(f)(i), it is fair and reasonable for Mr. Pannu to pay costs of the wasted summary judgment to Axa of $2,500.
22The culture shift requires all participants in the civil justice system to embrace the goals of efficiency, affordability, and proportionality. This means that all participants will have implement real changes to accommodate a faster, less expensive, and a far more just and workable civil justice system.
F.L. Myers J.
Date: March 2, 2015
CITATION: Pinto v.Kaur et al., 2015 ONSC 1356 COURT FILE NO.: CV-11-424811 DATE: 20150302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARGARET PINTO
Plaintiff
– and –
SATBIR KAUR and JASWANT PANNU and AXA INSURANCE CANADA
Defendants
REASONS FOR DECISION ON COSTS
F. L. Myers, J.
Released: March 2, 2015