The current delays plaguing the civil justice system in Ontario represent a significant problem. There are many reasons that civil cases are slow to be heard on the merits, including (i) the use of procedural steps to intentionally cause delay and frustrate progress, (ii) regular non-compliance with the Rules of Civil Procedure[1] that result in adjournments; and (iii) judicial vacancies. These issues have been exacerbated by the backlog created during the COVID-19 pandemic as courts have sought to prioritize criminal and family matters. It is not uncommon to wait several months, and in some cases over a year, to secure a date for a motion to address procedural matters that arise throughout the litigation process.
Understandably, the backlog and delays have left litigants feeling frustrated and powerless. Increasingly, the courts are echoing this frustration and are looking for ways to assume greater control of the court’s process and resolve disputes in a more timely fashion. Examples of this are found in the recent decisions of Miller v. Ledra et al.[2] and Think Research Corporation v. N&M Medical Enterprises,[3] wherein, in each case, the court sought to achieve that goal by awarding substantive relief at a case conference.
Case conferences are often used to address procedural, timetabling and other issues to avoid the need for a formal motion and to arrange for the orderly adjudication of motions where needed. Typically, it is much faster to obtain a date for a case conference than it is for the hearing of a motion or application. Rule 50.13(6) of the Rules provides that a case conference judge may:
- make a procedural order;
- convene a pre-trial conference;
- give directions; and
- in the case of a judge,
- make an order for interlocutory relief, or
- convene a hearing.[4]
The applicant in Miller is a former director and alleged shareholder of the corporate respondent. He sought production of the corporation’s annual financial statements and an order requiring the company hold a shareholders’ meeting. The respondents denied that the applicant is a shareholder, although agreed he was a director. The respondents argued that the applicant is not entitled to the financial statements if he was not a shareholder. Although the respondents’ lawyer agreed that the applicant was a named shareholder on the corporate records, they took the position that the records were “not authentic,” however, did not offer any further explanation.
The applicant in Miller requested a hearing for a 1.5 hour application; the earliest available hearing date was 14 months away. This requested hearing was governed by a new policy of the Civil List in Toronto that required that all opposed short motions and applications (less than two hours) are directed to a case conference. Pursuant to that policy, the matter was directed to Justice Koehnen who ordered the exchange of case conference briefs and directed the parties to appear before him to resolve the issues at hand without any further hearing.
Ultimately, Justice Koehnen was satisfied that he could grant the relief sought by the applicant in the context of the case conference. The court considered the facts of the case, the respondents’ apparent delay tactics, and the prejudice the respondent would suffer if the relief were granted. In doing so, Justice Koehnen observed the “minor difference in the facts” of the case and found that deciding the application at the case conference was proportional to the importance and complexity of the case.
While Justice Koehnen acknowledged that case conferences are not typically a forum in which substantive relief is granted, he noted that for years, courts, judges and counsel have commented on the dangerous state of the civil justice system and the repeated calls for reform.[5] He further observed that the predominant practice in civil matters has tended to be to allow the parties to determine how much court time they want and how they want to use that court time which is an unsustainable approach as the current delays demonstrate.[6] Judges must have the ability to determine, with the help of the parties, what information the judge needs, how best to get it to the judge and the procedure that is proportional to the issue at hand.
In the subsequent decision, Think Research, Justice Koehnen again addressed the sort of a relief that can be provided at a case conference.[7] In this case, the parties were unable to agree on the appropriate calculation of “net working capital” in order to determine the purchase price of shares. The matter was scheduled for a case conference before Justice Koehnen who advised the parties that the object of the conference was to determine the application on the merits. The respondent resisted this approach on the basis that an evidentiary record was required in order to resolve the application and that the court did not have the power to grant substantive relief at a case conference. Justice Koehnen rejected these arguments and appointed an independent accountant to determine the purchase price.
In Think Research, Justice Koehnen reiterated the concern that courts have become burdened by their own procedures to the point that those procedures impede the very justice that civil courts are asked to administer.[8]
From a strategic point of view, it is much faster and more efficient to bring a matter before a judge at a case conference as opposed to a hearing. As such, parties should carefully consider whether their case is sufficiently straightforward to seek a substantive finding at a case conference in an effort to save the time and expense of a full hearing. Likewise, parties should be prepared to address the substantive merits of their case at a case conference in the event the presiding justice decides that it is an expeditious and proportionate procedure to make findings.
Notwithstanding the above considerations, it remains to be seen whether there will be an uptick in the use of case conferences to make substantive rulings in light of Miller and Think Research or whether these decisions will remain exceptions to the general practice that rulings require a full evidentiary record. Nevertheless, Miller and Think Research show an increasing willingness on the part of courts to develop procedures that are tailored to an individual case. The decisions also serve as an important reminder to counsel and parties that we must be part of the solution by looking outside the one-size-fits-all model of having a matter heard on its merits, working together to resolve disputes without court intervention where possible and finding ways to avoid unnecessary procedural steps to reduce delays.
[1] Rules of Civil Procedure, RRO 1990, Reg. 194, made under the Courts of Justice Act, RSO 1990, c. C. 43 at rr. 50.13(6). [Rules]
[2] Miller v. Ledra et al., 2023 ONSC 4656 (CanLII) [Miller]
[3] Think Research Corporation v. N&M Medical Enterprises, 2023 ONSC 6910 (CanLII) [Think Research]
[4] Rules, supra note 1.
[5] Miller, supra note 2 at para 22-24.
[6] Miller, supra note 2 at para 37
[7] Think Research, supra note 3
[8] Think Research, supra note 3 at para. 24
