February 28, 2017

Embracing the common-sense ‘culture shift’  


Rob Kennaley In a previous column, we discussed the Supreme Court of Canada’s recent call for lawyers and Judges in our country to embrace a ‘culture shift’ to make justice more affordable and litigation more efficient. We would now like to share a recent experience, which led to a Court deciding whether or not what we were doing fit properly within that shift.

In DeGrandis v. 1123951 Ontario Ltd., 2016 ONSC 4335 we acted for a small underpinning and shoring contractor who had been retained by an owner directly to underpin the existing foundations to her home, and excavate a new basement. In keeping with the ‘culture shift,’ we chose to have the wife of the company’s principal/president act as our ‘law clerk’ — taking on tasks such as preparing affidavits of documents, reviewing the documents of the other side and preparing accounting and other summaries of the evidence. We would normally have to charge $100 or $150 per hour for our own clerk to perform such tasks. We did so because, in our experience and so long as our new ‘clerk’ was up to the task, the option could save the client tens of thousands of dollars.

In this matter, we prepared for examinations for discovery (which are pre-trial processes in which each side is examined under oath to vet issues and obtain evidence) with the assistance of our client’s wife, who also then attended the discoveries to assist us in that process. When we arrived, however, the lawyer for the other side sharply objected to her presence, falling back on rather old case law precedents to argue that she was not entitled to be in the room as she was not a party to the litigation.

"It appears to me that this is a sensible way
to reduce expenses and the overall cost of litigation."

Rather than simply agreeing to the other side’s demands (and after we had reviewed the state of the law in Ontario on the issue), our client decided the incentive of reduced costs was enough for him to hold firm on his request that his wife (my clerk) be allowed to remain in attendance. We accordingly took the position, on the record, that because I needed the assistance of my client’s wife as my clerk, we would only continue with the examination if she were allowed to stay. In doing so, we expressly advised we would rely on the Supreme Court’s recent decision on the need for a culture shift. The other side maintained his objection, without setting out the basis for same. The discoveries did not proceed and the matter ended up in front of the Court for resolution. In its decision, the Court held as follows:
“The defendant wishes to have a non-party present at discovery in order to assist counsel. The non-party in question is … the spouse of the principal of the defendant corporation. She is apparently not an employee, officer or director of the defendant. [She] has assumed the role of unpaid law clerk for this litigation in order to keep costs down. It also appears that [she] provides unpaid labour to the defendant from time to time apart from her role in this litigation.

“First, the case law relied upon by both sides establishes that the court has the discretion to permit the attendance of a non-party at discovery in order to assist counsel, depending on the circumstances of the particular case...

“I agree with the plaintiffs that the attendance of the non-party must not disrupt the examination process and the non-party’s role must be limited to assisting counsel. In my view, [her] attendance is appropriate in the circumstances of this case. A significant number of documents will need to be organized and reviewed. The amounts of the claims are relatively modest but there are many discreet issues to cover. I see nothing improper about her attendance so long as her role is limited to involvement similar in nature to a law clerk or articling student assisting counsel. It appears to me that this is a sensible way to reduce expenses and the overall cost of litigation. …

“I also agree with the submissions of counsel for the defendant with respect to a litigation ‘culture shift.’ The Supreme Court of Canada has made it abundantly clear that there needs to be a culture shift in how the parties, the bar and the courts approach the resolution of civil disputes. This approach is reflected in Justice Karakatsanis’ observations in Hryniak v. Mauldin, [2014] 1 S.C.R. 87 (S.C.C.) beginning at paragraph 23. … 

“The culture shift referred to by Justice Karakatsanis goes beyond summary judgment motions. It infuses all aspects of civil procedure including, I might note, the allocation of the court’s finite judicial resources. See Farmers Oil & Gas Inc. v. Ontario (Ministry of Natural Resources), 2015 ONSC 223 (Ont. S.C.J.) at paragraphs 4-8.

“These principles are certainly applicable to the issue involving the attendance of the non-party at discovery.” We hope that the culture shift will continue to be embraced in the way we litigate disputes, and that creative ways of managing costs will be welcomed, as opposed to resisted, by all parties to the litigation process. Time, of course, will tell. Our recent experience, however, gives us room for optimism.
Robert Kennaley is a former landscape design/build contractor and an Honorary Member of Landscape Ontario, who now practices construction law in Toronto and Simcoe, Ont. 
He can be reached at 416-368-2522 or at kennaley@mclauchlin.ca.