Cali’s Plumbing Ltd. v. National Dispatch Services Ltd. et al., 2015 ONSC 1918

COURT FILE NO.: CV-13-490843

DATE: 20150324

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

CALI’S PLUMBING LTD.

Plaintiffs

-and-

NATIONAL DISPATCH SERVICES LTD. and MARISSA SIDEL

Defendants

BEFORE: F.L. Myers J.

COUNSEL: F. Teixeira for the plaintiffs

S. Bentley-Jacobs for the defendants

HEARD: March 20, 2015

ENDORSEMENT

[1] Civil Practice Court is a work in progress. It will not work however, unless the bench, bar, and administration can find ways to avoid cases like this.

[2] On December 9, 2014, counsel appeared before Spence J. in Civil Practice Court and agreed to schedule the plaintiff’s motion for summary judgment for March 20, 2015 for two hours. Counsel agreed to a schedule to ready the motion for hearing on the date agreed upon and ordered. The schedule was appended to Justice Spence’s endorsement and, in my view, was part of the consent order obtained that day. The schedule provided that cross-examinations were to be completed by February 20, 2015.

[3] Counsel appeared before me in Civil Practice Court on March 20, 2015 – the return date of the motion - to seek an adjournment of the motion on consent. Counsel advised that they had contacted the court to advise that they wished to adjourn the motion on consent and they had been told to attend Civil Practice Court on the return date. I inquired as to why the motion was not proceeding and was told by counsel that the defendants’ affiant is in Montreal and counsel had just not been able to arrange a time for cross-examination of the witness that was convenient for all. I inquired of the defendants’ counsel as to what had been the problem and was advised that counsel before me was not counsel with carriage of the matter and she knew nothing at all about the action.

[4] In all, it seems to me that:

a. a court order has been ignored; and

b. effective case management in Civil Practice Court has been frustrated;

[5] More significantly, the parties have been denied speedy, efficient, affordable, proportionate civil justice because all parts of the “system” have yet to acclimatize to its new needs. This is not a question of simply criticizing counsel or enforcing minor orders out of an over-sensitive sense of judgitis. The Supreme Court of Canada has called for a “culture shift” in civil justice in Canada. See: Hryniak v. Mauldin, 2014 SCC 7. Implementing change is never easy and there will always be bumps in the road. Civil Practice Court has been up and running for almost six months now. In that time, some lessons have been learned. Unfortunately, the facts of this case bring together two of the problems that are seen very frequently in Civil Practice Court and must be dealt with to make the system work as intended in Toronto.

The Practice Advisory

[6] Civil Practice Court was rebranded under the Toronto Region Pilot Practice Advisory – Civil Practice Court (Regional – October 14, 2014, in effect until July 1, 2015). The Practice Advisory is a response to Hryniak and, more generally, to the severe systematic delays that had infected motions court in Toronto. The Practice Advisory was a result of the Civil Review Project implemented by the Chief Justice of the Superior Court of Justice through Regional Senior Justice Morawetz in 2013 even prior to the Hryniak decision. The Practice Advisory was also the result of broad based consultations. Among other things, the Civil Review Project recommended increased use of active case management in Toronto motions court to help reduce delays:

Case Management for Summary Judgment Motions: A system is to be instituted where case conferences are conducted well in advance of the summary judgment motions (wherever motions are longer than 2 hours) in case managed proceedings...

Motions will only be booked if the parties can confirm their availability to have them heard in the next 100 days (14 weeks), otherwise they will not be scheduled. Absent exceptional circumstances, the Court will schedule a hearing date within 100 days. In order to effectively implement this policy, it will be necessary to adopt a “no adjournment within 2 days of the scheduling hearing” policy, in the absence of extenuating circumstances.

[7] Under the Practice Advisory, the motion in this case should have proceeded on March 20, 2015. The fact that the plaintiff consented to an adjournment, while obviously collegial and civil, ought not to have been determinative. If motions are to be scheduled within 100 days, (and they can usually be scheduled much sooner than that if desired) counsel need to ensure that they are prepared on day one to implement the steps necessary to meet the timeline. This means that scheduling steps are not just pro forma. Counsel are to contact clients or witnesses to ensure availability in advance. When asked to schedule a motion on consent, I inquire about the nature of the relationships among the parties and among counsel to try to assess whether there are likely to be refusals arising on cross-examinations or other roadblocks that might prevent the schedule from being met. Where there are scheduling problems apparent, Civil Practice Court judges often convene case conferences under Rule 50.13 as part of the light-touch case management discussed in the Practice Advisory.

[8] In this case, the parties found themselves unable to meet the schedule. I do not know why. But they did not come back to Civil Practice Court to ask for an amendment to the schedule. They chose to let the scheduled deadline pass. I do not know when they called the court and were told to come to Civil Practice Court only on the return date of the motion. That was not appropriate. They should not have just ignored the scheduling order. They should have sought an amendment as soon as they realized that they could not fulfill the schedule as agreed and as ordered.

[9] In UHA Research Society v. Canada (Attorney General), 2014 FCA 134 Stratas J.A. made reference to the importance of scheduling orders of the court as follows:

[8] I reiterate and underscore the fact that the end result is an order of the Court scheduling the appeal hearing. A scheduling order is no different from any other order of the Court – it is an instrument of law, on its terms mandatory and effective.

*** [10] Scheduling Orders of this Court are not trivial matters that can be set aside whenever something comes up for counsel.

[10] Rule 3.04 allows the parties to amend court ordered schedules on consent. Everyone understands that stuff happens. Counsel cooperating in the best traditions of the bar and acting under the Advocates Society’s Principles’ of Civility make allowances to help each other achieve mutually desired outcomes. But where the outcome is cast into doubt, in the Civil Practice Court context, where the return date and the 100 day window are imperiled, the case management goals of the Practice Advisory require that the parties immediately come back to Civil Practice Court.

[11] In this case, as discussed above, the parties did not come back to Civil Practice Court until the return date of the motion. It appears that court staff may have mistakenly directed this approach. The effect was to lose the motion time and to leave this case in limbo for several weeks.

Counsel Must be Prepared

[12] Once the parties did attend Civil Practice Court, the next shoe dropped. Counsel who attended for the defendants was unprepared to deal with case management. It has become common for counsel to send local agents to Civil Practice Court and even to case conferences. The agents usually have in hand their principals’ calendars and are otherwise totally unarmed to deal with the case. This is inappropriate on a number of levels. In the first place, counsel are not mere messengers or scribes. Counsel attend court to represent their clients as officers of the court. They are required to be competent and fully prepared to do so. They do a disservice to their clients, their colleagues opposite, and the court by attending unprepared. Junior counsel must require that their seniors properly instruct them and allow them to properly review the file prior to attending court. Counsel’s reputation is on the line at each appearance.

[13] In this case, the parties agreed to adjourn the motion to July and set a new cross-examination deadline. The court was unable to determine whether those dates can be met realistically. There was no discussion about mechanisms to deal with the witness being in Montreal. Might video-conferencing be a possibility? Is an inter-provincial subpoena necessary to compel attendance of the witness? Is counsel’s schedule or witness reluctance getting in the way of the efficient hearing of the motion and an efficient resolution of the action? While the lawyers are content deferring the motion for four months and the civility demonstrated by the plaintiff’s counsel is admirable, the plaintiff is still being required to wait four months due to the failure of the defendants and their counsel to meet the agreed upon and court ordered timetable.

[14] In Pinto v. Kaur et al., 2015 ONSC 1356, I discussed the nature of the “culture shift” and how some of the practicalities are starting to be felt on the ground. Making cases proceed more quickly, efficiently and more cheaply requires systemic changes.

[5] All 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.

[6] Users, 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.

[18] 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.

[15] In this case, I made the following endorsement at Civil Practice Court:

Motion set for today is adjourned to July 24, 2015 only because [the plaintiff] consents. Attached schedule is ordered. This schedule is to be complied with by [the defendant]. Costs reserved to the judge hearing the motion for reasons to be delivered by me. Motion booked for 2.5 hours.

[16] The defendant has an explanation due as to why it failed to meet the agreed and ordered schedule. The judge who hears the motion may choose to award costs of the attendance at Civil Practice Court.

[17] Civil motions court in Toronto is a case managed court. Case management consists of active judicial involvement and oversight bounded by agreements and orders. It is not for the parties alone to determine the procedure applicable to their motion. The parties should return to Civil Practice Court right away for case management if it appears for any reason that the scheduled return date of the motion may not be met.

[18] Finally, counsel who attend Civil Practice Court must be prepared to deal with their cases procedurally if not on the merits. Counsel must be sufficiently prepared to deal with case management issues including canvassing possibilities for settlement at each appearance. Counsel must understand that motion and application dates are assigned in Civil Practice Court on the basis that the dates are fixed and that last minute adjournments will not be allowed. Let me just reiterate that these changes have been made to try to engage the “culture shift” so that clients see a working civil justice system that is accessible to Canadians generally. Government, bench, and bar must continue to work together to devise and implement change if the goals of and efficient, affordable, and proportionate civil justice system are to be met.

________________________________ F.L. Myers J.

Date: March 24, 2015