In Letang v. Hertz Canada Limited, 2015 ONSC 72, Justice Myers called out the defendants on their delay tactic. “So they did what counsel steeped in the traditional Toronto motions culture do – they served a big, thick motion and waited for their adjournment.” (paragraph 16)
On December 3rd, 2014, the plaintiffs (represented by Dentons) served close to 500 pages of documents (mostly bank statements and copies of cheques and notes) on to the defendants. In response, the defendant (represented by Stikeman Elliott) delivered a 3 volume motion record on Christmas eve seeking the adjournment of the trial scheduled for January 12, 2015.
At paragraph 18 Justice Myers remarks that:
There does not need to be perfect disclosure and perfect discovery on every path and alleyway in order to achieve a fair and just outcome of the case on the merits. The Supreme Court of Canada has ruled that the goal of achieving a fair and just civil dispute resolution process becomes illusory unless it is proportionate, timely, and affordable. The idea that the defendants can ignore a trial date and sit on material for a month without bothering to call their expert and just deliver another fat motion record to buy 90 days of unlimited discovery time for more fishing for documents is old brain thinking…
Procedural gamesmanship, incessant delay, and discovery without end have brought the civil justice system to the brink of a crisis. There are real people behind lawsuits – even claims involving sophisticated corporations. These people are entitled to timely justice. Because the civil justice system does not deliver timely, affordable and proportionate justice, people are looking elsewhere for dispute resolution to the detriment of the public and the common law. Fixing the civil justice system requires a culture shift on the part of the players in the system.
…Delay… rots the uncompromisable goals of fairness and justice.
A culture shift seems unlikely as long as litigators are rewarded by the billable hour. In Thinking Fast and Slow, Daniel Kahneman asserts that incentives play a critical role in how people operate. The billable hour encourages the creation of “fat motion records” over the promotion of a fair and quick dispute resolution.