Introduction
Voltaire once said about the legal system, "I was never ruined but twice: once when I lost a lawsuit and once when I won one".
There can be little doubt that the cost and delay of litigation has caused more than one winning litigant to feel it to have been a pyrrhic endeavour once the final recovery and the costs are measured. This, of course, says nothing for the loser. Although litigants often do not understand the costs inherent even in a legal victory, lawyers from the outset are required to handicap their clients cases by assessing risks and costs within an adversarial justice system that has been designed to balance the due process rights of both plaintiffs and defendants. Ultimately the paradigm litigation analysis requires a lawyer to chart a route that optimizes recovery as economically as possible, while taking into account the likelihood and quantum of recovery for a client, both on the merits and in terms of collectability. This is not an easy task since the nature of the adversarial system permits some litigants to employ tactics that increase the costs of litigation and that promote delay when in their interests to do so. The cost and procedural delay of litigation are often used as bargaining chips to reduce the expectations of an opposite party and to grind them down to accept a resolution that in all of the circumstances is less than they actually deserve and are entitled to. This, while a stark reality, is not truly justice.
The ever-increasing costs of litigation and inefficiencies associated with the layers of process that can be utilized by a party to cause delay, not to mention the inherent risk in adversarial litigation, have in today's justice system led many litigants to resolve their disputes through mediation or arbitration or to seek more streamlined adjudication using the Rules of Civil Procedure in an effort to dispose of a case or issues at an earlier stage short of a full blown trial. Alternative dispute resolution or disposal of a case at an early stage preserves access to justice on a practical level.
Indeed, to accommodate the desire of litigants to avoid the inherent cost and delay of taking a matter through a trial while preserving the need for accessible justice, changes were made to the Rules of Civil Procedure in 2010. More specifically, Rule 20 was amended with the intent to allow a motions court judge to either in whole or in part dispose of matters short of a full-blown trial. This amendment was designed to signal a 'culture shift' in litigation away from trials being the be all and end all model of ideal adjudication of all issues in dispute in civil litigation.
In 2014, the Supreme Court of Canada's landmark decision in Hyrniak1 accepted the "culture shift" that was required to take place in litigation and seemingly embraced the new powers given to Ontario motions court judges to deal with summary judgment motions and dispose of claims efficiently and proportionally. The Supreme Court recognized that without a meaningful 'short circuit', the civil justice system was collapsing under its own weight. In its quest for near perfect justice, the system was denying justice altogether as the cost and risk associated with civil litigation was well beyond the means and tolerance of average Canadians. A movement to a streamlined and efficient method to deal with claims through an abbreviated summary judgment process supplemented with the tools necessary to do justice in a particular matter was heralded as the means to clear the backlog in the Courts and re-open the civil justice system to the average citizen.
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* Gavin J. Tighe is a Partner at Gardiner Roberts LLP and is a certified by the Law Society of Ontario as a specialist in civil litigation. Stephen A. Thiele is a Partner and the Director of Legal Research at Gardiner Roberts LLP. Gavin and Stephen also acknowledge, and are greatly appreciative of, the assistance of Rojin Jayazeri and Rachel Islam. Rojin and Rachel are Students-at-Law at Gardiner Roberts LLP.
Footnote
1 Hyrniak v. Mauldin, 2014 SCC 7, 2014 CarswellOnt 640.
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