COURT FILE NO.: CV-18-00138394
DATE: 20221220
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Robert Lepp, Plaintiff
AND:
The Regional Municipality of York, The York Regional Police Services Board, York Regional Police, The Corporation of The Town of Aurora, Mandie Eddie (Aka Mandie Crawford), Helen Clarke (aka Helen Clarke-Jennings), Jaclyn Solomon, Defendants
BEFORE: The Honourable Regional Senior Justice M. Edwards
COUNSEL: Robert Lepp, In-Person
Benjamin Lee, for the Defendant, Helen Clarke
HEARD: December 9, 2022, via Zoom
ENDORSEMENT
Overview
[1] I have been case managing this matter now for a number of years. It has consumed an inordinate amount of time. This morning I had before me a motion by Helen Clarke seeking an order finding Mr. Lepp in contempt of an earlier order made by me. If the motion had proceeded, and if Mr. Lepp had been found in contempt, it would have been at least the fourth time Mr. Lepp has been found in contempt. The motion, however, did not proceed for reasons set forth below.
[2] The motion was to be heard virtually. Caselines was the method by which everyone, including the court, would access the material filed. When I accessed Caselines, I was confronted with a motion record filed on behalf of Ms. Clarke that was in excess of 1300 pages long. Counsel for Ms. Clarke had filed a factum and a Brief of Authorities.
[3] Mr. Lepp had filed on Caselines a document he entitled “Defence of Motion November 24, 2022, by H. Clarke”. This document had hyperlinks in the Index page as well as throughout the document.
[4] When the motion was called, I raised with counsel concerns I had about non-compliance with the Notice to the Profession (the Notice) which became effective on August 2, 2022 and was signed by Chief Justice Morawetz. The Notice is comprehensive and relates to all three lines of work that come before the Superior Court - family, criminal, and civil. Counsel would be well advised to have a copy of the Notice on their desks at all times.
[5] As it relates to Civil matters, the Notice (amongst other things) provides a roadmap to all litigants and the Bar as to what is required when a matter comes before the court. The Notice is not a suggestion of what should be filed. Rather, the Notice sets forth the minimum expectations of the Court in terms of what is to be filed for a hearing.
[6] Specifically, as it relates to the motion before this court, the Notice makes clear that each party “must” upload to Caselines a compendium containing “key materials that will be referred to in oral argument”. The Notice also makes clear that the only documents to be included in the compendium are those materials that “will be referred to in argument” and most importantly “must have a table of contents hyperlinked to the sections within it and hyperlinks to authorities cited”.
[7] The Notice also addresses the use of Books of Authorities. In that regard, the Notice tells the reader that “No” books of authorities are to be filed with the court unless the court orders otherwise. The Notice goes on to provide guidance about how case law is to be dealt with. Specifically. the Notice provides that litigants are to file a factum which is to have hyperlinks to case law that is widely available on a “free website like CanLll”.
[8] As it relates to the material that was uploaded to Caselines, on behalf of Ms. Clarke, I was provided with a motion record that was in excess of 1300 pages. There was no compendium. I was provided with a factum and a Brief of Authorities. Apart from the fact that a Brief of Authorities should not have been filed, the Brief that was filed had an index with tabs which were not hyperlinked.
[9] Regrettably, I have seen numerous instances where counsel has filed materials that are separated by “Tabs”. In order to find a particular tab, one has to scroll through the materials to find what you are looking for. In the so called “good old days”, when briefs were filed with actual tabs, we could all go to that tab without difficulty. In the virtual world if the “tabs” are not separated by hyperlinks or some other method by which the court can find a document then counsel will find the judiciary simply won’t have read their materials.
[10] Advocacy is both an art and a skill. To advocate for one’s client involves both written and oral advocacy. Both are skills that can be learned and improved upon. Part of that skill begins in the lawyer’s office as he or she prepares for oral argument. Part of the skill is recognizing what your motion judge will need to write his or her endorsement/reasons. Counsel needs to exercise good judgement in their determination of the written record that the court will need to review prior to oral argument. Good judgement does not include “throwing the kitchen sink” into a “document dump” that you hope the court will be able to sort out. Rather good judgement will involve how to make your client’s case more attractive to the motion judge.
[11] Amongst the things that a lawyer provides to his or her client are the skills expected of an advocate. It is no secret that civil litigation has its challenges and that the costs of litigation increase every year creating access to justice issues for the general public. While lawyers will take their instructions from their clients those instructions must be informed instructions. Exercising good judgement in terms of the documents to be filed with the court does not require a lawyer to blindly follow instructions to create a “document dump”. The good advocate will ensure the client understands that not every piece of paper in the clients file is relevant or necessary to what the court will need to adjudicate a matter.
[12] The late Marvin Catzman wrote in the Advocates Society Journal an article entitled “The Wrong Stuff: How to Lose Appeals in the Court of Appeal” - see 19 Advocates Soc J. No 1,1-5. This article has stood the test of time and is well worth reading. It lays out how not to argue an appeal in the Court of Appeal.
[13] I do not profess to have the wit nor the experience of Catzman J.A. and so while tempted I will not suggest the top ten ways to lose a motion. The essence of “The Wrong Stuff”, written tongue in cheek, was a roadmap of how counsel could ensure they lose their appeal.
[14] Regrettably what might have been reflected in the top ten ways to lose a motion is what the judges of this court have to deal with everyday. Like lawyers one of the most valuable commodities, we have is time. Time is in very short supply. Judges are asked every day to adjudicate numerous motions and or to deal with numerous pre trials. It is simply impossible to expect that the judiciary will have read everything that lawyers typically file. The Notice and The Rules are written not as suggestions but rather to help the Bar streamline their materials in a manner that will ensure the bench will have read the “key” documents and caselaw.
[15] While tempted to suggest there are many ways counsel regularly create unnecessary impediments to a successful motion, let me suggest that there are twelve ways the Bar can ensure that their clients will have a good chance of winning the relief that is being sought from the court. In my view the following reflect twelve ways to win your motion or to have a productive pretrial (I include pre trials because the written pretrial memo is crucial to a successful pretrial for your client).
a) Before you even serve you motion materials ask the fundamental question is the time and expense of the motion really worth the effort. Keep in mind that statistics show that well over 95% of all cases will settle without a trial. So, ask the question how much impact, if any, will the motion being contemplated improve the chances your case will resolve in a manner favourable to your client.
b) Assuming you have decided that a motion is needed consider doing something really old fashioned and that is to pick up the phone and talk to your opponent. In person discussion whether by phone or may I dare say actually a meeting, might obviate the need for the motion or perhaps narrow the issues you need to argue. All too frequently the Court will be confronted with affidavits to which are appended numerous email communications between counsel. Regrettably what counsel sometimes say in their emails will not portray counsel in a positive light.
c) The single most important guiding principle as it relates to written advocacy might start with an old saying “less is more”. Put another way your motion judge will be greatly impressed with a motion record that contains only the documents that are fundamental to the determination of the motion.
d) Following along with the “less is more” principle it is fundamental to a positive outcome for your client that counsel comply with the Notice and Rule 4.05 (3. File a compendium that only contains the critical documents you will refer to in argument together with extracts of any case law you intend to refer to in oral argument. Ensure the documents and caselaw are hyperlinked so the reader doesn’t become frustrated trying to find them.
e) While it is not every motion that may require a factum if your motion is important enough to the outcome of the case you may want to consider filing a factum even where the Rules specifically don’t require a factum.
f) In any case where you are either required by the Rules (as an example Rule 20 and Rule 21 motions) or where the importance of the motion dictates good practice in filing a factum consider the following: I) a simple argument might very well be a winning argument; ii) make sure the issues you are asking the court to decide are clear from the beginning and narrow the issues down to the one or two real issues that need to be decided; iii) refer the reader to the leading appellate authority(s) that address the issues you say need to be decided; iv) if there are critical parts of a document such as the language of a contract consider reproducing right in the factum an extract of the document. Put in layman’s language the easier you can make the job of the decision maker the greater the likelihood of a positive decision for your client.
g) When there is a page limit – as with the Central East 15-page limit for pretrial memos- there is no requirement that you actually file 15 pages. Less is more. But where there is a page limit do not exceed it.
h) While the filing of a compendium is an essential component to good written advocacy, where other documents are filed that include multiple exhibits, make sure those exhibits are readily accessible to the reader -either with separate electronic tabs, hyperlinks or bookmarks, The reader i.e., your motion judge will not scroll though hundreds of pages to find a document.
i) Before the hearing of your motion take the time to check Caselines and ensure that the documents you will be referring to have been properly uploaded to Caselines and are easily accessible. This may only take you a few minutes, but it may save considerable embarrassment when you get to oral argument only to have your motion judge say he or she hasn’t read anything because the documents have not been uploaded to Caselines or they have been uploaded into the wrong bundle.
j) Once you have served and uploaded everything and you have reviewed everything that your opponent has served consider the wisdom of another phone call with your opposite side. Can the motion be resolved? Can the issues be narrowed? Is the motion ready to be heard or will there be a late breaking request to adjourn-if so, better you try and resolve that before your attendance than to waste precious court time.
k) Come prepared to argue costs or at the very least exchange your Costs Outline as required by Rule 57.01 (6)-better still consider discussing with your opponent an agreed upon amount for costs to the successful party. You can be rest assured that even if you are the loosing party the presiding judge will likely have positive memories of counsel who can agree upon costs rather than being subjected to having to write a costs endorsement.
l) Last but not least Upload to Caselines a draft order in Word format. It may come as a surprise to many that some judges-myself included, have great difficulty manipulating a “Pdf”. Your motion judge will greatly appreciate seeing in Word format what it is that he or she is being asked to order.
[16] The Bar needs to be assured that the Bench will read the factums filed. The Bench will also read the Compendiums. Where time permits the Bench will also read the salient documents filed as part of the motion record. The compendium should contain the relevant documents and caselaw that will be argued in oral argument. The judiciary simply can not be expected to read 1300 pages for a motion that was to be argued in under an hour.
[17] In the result, I adjourned today’s motion to allow counsel to comply with the Notice. Very simply put, the Bar needs to reflect on why they are filing materials that are hundreds, if not thousands of pages long. This applies to Motion Records, Caselaw and Pre Trial memos. In the world we now live in, the Bar needs to appreciate that apart from the requirements imposed by the Notice and the Rules of Civil Procedure judges are human beings. We simply do not have the time to read the volume of material we are often confronted with. The Bar would be well advised to read the Notice and The Rules to ensure they have complied with the minimum filing requirements for the hearing of a motion or a pre trial.
[18] The motion to find Mr. Lepp in contempt is adjourned to a date to be arranged through the trial coordinator. The motion will be heard provided all parties adhere to the requirements of the Notice. Costs of today are reserved to the completion of the motion.
Edwards, RSJ.
Date: December 20, 2022