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No one wants to enter into a drawn-out and expensive court trial. There are times, however, when resolving a dispute in court is necessary. It’s a reality that litigation is costly and slow, and it has been recognized that there are many obstacles faced by Canadians who are attempting to enforce their legal rights in court.

A series of decisions released over the last few years have emphasized the need for trial counsel to engage in a “culture shift”, in order to ensure ready and affordable access to justice for everybody.

Promoting access to our courts

In Hryniak v. Mauldin, Justice Karakatsanis’ emphasis on promoting the principles of proportionality, timeliness and affordability in the justice system have resonated throughout the legal world.

Hryniak dealt primarily with the expanded powers available to courts for summary judgment; that is, cases where a dispute can be resolved without a full trial. The Court made it clear that this is merely one opportunity that is available to address the increasingly expensive and complex system of civil justice, and to achieve a more accurate reflection of the modern legal reality. As Justice Karakatsanis noted, the decision in Hryniakconcerns the values and choices underlying our civil justice system, and the ability of ordinary Canadians to access that justice.”

Orders for costs

This revised approach to traditional models of civil litigation is on full display in Saleh v. Nebel, which concerned an order for costs arising from an unsuccessful action for damages following a motor vehicle accident. “Costs” are the amount the successful party spent on the lawsuit, which a court sometimes orders the unsuccessful party to cover. In this case, Justice Myers denied the successful defendants their costs of the action, pointing to the conduct of the defendant’s counsel at trial as a justification for withholding an award to which they were otherwise entitled.

Justice Myers detailed the comprehensive trial management order that had been made at a pretrial conference, which required counsel to take a number of steps before trial, including the provision of updated medical and financial reports, among other undertakings. The court stated: “Playing uncivil, tactical, inappropriate, old-school, trial by ambush games […] are all wrongful. Most of these things have been considered unprofessional sharp practice and inappropriate for decades.

Motions to adjourn trial

Another example of a court making use of Hryniak to justify an overhauled approach to the traditional trial model is Letang v. Hertz Canada Limited.

In that case, the plaintiffs sought roughly $3.5 million in damages, alleging that the defendants had failed to enter into a franchise relationship despite the existence of written agreements requiring them to do so. The defendants sought to adjourn the trial in order to allow more opportunity for examination of the documents. When this was denied, they delivered a three-volume motion record on Christmas Eve, seeking adjournment of the trial. The motion was dismissed by Justice Meyers, who chastised the defendants for failing to arrange to have their experts made available in the lead-up to trial.

In a scathing critique of tactics of delay, which characterized this civil litigation process, Justice Meyers stated that: “Delay at all stages should be recognized as a serious form of prejudice that undermines affordability and proportionality and rots the uncompromisable goals of fairness and justice.

Disclosure obligations

Last year, the Ontario Court of Appeal provided new insight into the requirements surrounding disclosure in civil litigation, which the court made clear should be undertaken with the ultimate goal of fostering settlement.

In Iannarella v. Corbett, the Ontario Court of Appeal dealt with a personal injury case in which damages were claimed following a motor vehicle accident. The issue confronting the Court of Appeal was surveillance video, which was used to cross-examine the plaintiff, despite the fact that its existence had not been disclosed beforehand.

The Court of Appeal expressed its displeasure with the tactics that had been employed at trial, noting that “Here, for example, the appellants did not accept a substantial settlement offer; perhaps they would have accepted it, thus avoiding a lengthy and costly trial, had the respondents properly disclosed their surveillance evidence.”


All of these decisions are a positive sign for potential litigants. Courts will no longer tolerate tactics that aim to delay the litigation process. Recent decisions make it clear that there will be consequences for non-compliance, including the denial of costs, even for successful litigants. This is all good news for those who have no choice but to resolve their issue in the court-room.

For more information about the litigation process in the personal injury context, contact our Personal Injury and Wrongful Death Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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