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March 2018

Case Management: Be Zealous But Be Reasonable

The purpose of case management in the Ontario civil justice system is to reduce unnecessary delay and cost, facilitate early and fair settlements, and bring cases promptly to a just conclusion.1 As part of this system, all the steps in a particular case might be heard by one particular judge. This mechanism often provides parties with "repeated, privileged access to a judge" to help streamline an action.2

However, when case management is abused by parties and/or their counsel, the Court will not hesitate to remove the matter from case management and will likely also chastise the parties and their counsel in the process. Justice Frederick Myers did just that in a recent Endorsement which arose in the context of a heavily litigated trusts and estates matter.

Justice Myers' Endorsement, Mayer v. Rubin 2018 ONSC 1826, came out of a case conference whose purpose was to settle the terms of a previous court order and to schedule competing motions for costs. Justice Myers had been case managing this matter for some time and numerous motions were argued before him.3 This action has a very substantial amount of money at stake between the principle parties, who happen to be siblings.4 Justice Myers has found that the allegations are "exceptionally nasty and betray an underlying personal bitterness that perhaps only family members can hold toward one another".5 As a result of the amounts in dispute and the animosity between the parties, Justice Myers noted that the siblings are "now engulfed in a sea of professionals poised to engage on a very extensive and expensive voyage through years and years of legal and accounting documentation to re-package history to best suit their own current positions".6

Justice Myers decided to stop case managing this particular dispute...

In this instance, Justice Myers decided to stop case managing this particular dispute because the process had become a tool to help the parties bludgeon each other rather than resolve their issues. He remarked that this case became one of a small number of unfortunate cases in which case management seems to encourage parties to disagree.7 In those circumstances, case management does not move the case forward nor does it lessen the expenses involved and, therefore, frustrates the purpose of the entire case management system.8

The Endorsement noted that typically parties do recognize that if their matter is being case managed, they should be reasonable and look to compromise and cooperate with the other side when they can. One of the rationales provided is that "most parties do not want to show themselves to be taking unreasonable positions in front of a judge whom they know will be seeing them over and over again".9 Justice Myers commented that on the whole parties do typically realize a "case management premium" by cooperating with each other.10

The perils of the case management system, however, are that "the low cost of case management leads parties to an erroneous conclusion that they should harden their position and decline even the slightest cooperation because the process of seeking resolution is so quick and cheap". The case management judge is "just a phone call away" and becomes the parties' "private referee".11 management only works where the parties and counsel are willing to cooperate with each other.

Justice Myers reminded the legal community that case management only works where the parties and counsel are willing to cooperate with each other. He remarked that counsel can sometimes overly focus on their professional obligation to be zealous and fearless advocates for their client, while at the same time forgoing their other professional obligation, namely to advocate for their client in a way that promotes the parties right to a fair hearing in which justice can be done.12 Both obligations are enshrined in the Rules of Professional Conduct and its Commentary.

It was stressed that "the overriding commitment to fairness and justice is part and parcel of the obligation to be zealous and fearless advocates. Otherwise, we revert to trial by battle in which parties pay champions to assault each other. That is not justice as we know it".13 Quoting from the Supreme Court of Canada in Hryniak v. Mauldin 2014 SCC 7, Justice Myers stressed that the principal goal of the civil justice system is a "fair process that results in a just adjudication of disputes".14

It is often tempting for litigants and their counsel to attempt to extract tactical gains no matter how minor from the other side and it is similarly enticing to resolutely oppose even the most inconsequential request from the other side. The Endorsement in Mayer v. Rubin 2018 ONSC 1826 is a reminder that while aggressive, zealous and fearless advocacy has a place in the justice system; it needs to be coupled with a willingness to be reasonable, compromise and cooperate where possible. The Court will not hesitate to chastise parties and their counsel who do not recognize that this is a fundamental element of the civil justice system.

Read the full endorsement.

1 Fact Sheet: Civil Case Management as published by The Ministry of the Attorney General
2 Mayer v. Rubin 2018 ONCS 1826 at para 13.
3 See for example 2017 ONSC 1404, 2017 ONSC 1704, 2017 ONSC 3498 and 2017 ONSC 4121.
4 Ibid at para 10.
5 Ibid at para 10.
6 Ibid at para 10.
7 Ibid at para 11.
8 Ibid at para 13.
9 Ibid at para 12.
10 Ibid at para 12.
11 Ibid at para 13.
12 Ibid at para 14.
13 Ibid at para 14.
14 Ibid at para 15.


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