Emerging Judicial Guidance - Tips from Recent Decisions

Courts sometimes provide practice tips and guidance to counsel in their reasons for decisions, especially in the wake of systems such as CaseLines. It can be easy to overlook the part of a decision that provides direction to the profession or that touches on an issue that has implications beyond the particular case at hand. Below are some such tips from the bench coming out of recent Ontario cases, with guidance for lawyers practising not only in Ontario but in other provinces and territories as well.

Tip #1: Don’t litigate through judicial assistants

We are always trying to advocate on behalf of our clients, sometimes in emails copying judicial assistants. In Navartnarajah v. FSB Group Ltd., in the context of a class action, Justice Morgan cautioned counsel to limit their email communication with his judicial assistant to scheduling matters, and directed against engaging in “full-blown advocacy by email”.

Tip #2: Use presentation mode in CaseLines

By now, many of us are familiar with CaseLines. Typically, counsel will provide a page number reference or use ‘direct to page.’ In Bowman v. Uwaifo, an appeal to the Divisional Court from the Consent and Capacity Board, Justice Myers extolled Case-Lines’ presentation mode: “the use of Presentation mode freed me from having to manage CaseLines to find documents referred to by counsel. It allowed me to concentrate solely on the merits of counsel’s arguments and to see the documents quickly and with no effort or distractions.”

According to Justice Myers, such efforts would “increase the chances of comprehension by the judge and therefore the persuasiveness of the presentation” and would also be “likely to garner some appreciation for the effort to simplify cumbersome and distracting technical tasks”.

(Of course, be sure to take instruction from the particular decision-maker before whom you are appearing: some judges or associate judges may prefer to retain control of their CaseLines.)

Tip #3: Injunctions require a heightened degree of civility

Cooperation and civility with opposing counsel is always important but can be more so in the context of injunctions. In 1162268 Ontario Limited v. Uddin,4 Justice Dunphy noted that a high degree of civility and cooperation between counsel is required if a fair hearing is to be held in the limited time available, failing to take such an approach contributed to a finding of substantial indemnity costs.

Tip #4: Failure to hyperlink, tab and upload in CaseLines could sink your motion Counsel need to ensure that evidence in CaseLines is easily navigable: hyperlinks, bookmarks, and separately uploaded tabs are all useful tools to this end.

A failure to hyperlink references in facta and motion records and upload materials to CaseLines has been likened by Justice Dunphy to a request to “sort through an overturned bowl of spaghetti.” This alone was more than sufficient to dismiss a motion (Basaraba v. Bridal Image Inc.).5

In Monster Snacks Inc. v. David, Associate Justice Ilchenko required counsel to file fresh as amended hyperlinked fact and compendia due to a lack of bookmarks.

Another decision, Parekh et al v. Schecter et al, held that a failure to bookmark delays the administration of justice

Tip #5: Think twice before scheduling a summary judgment motion or trying to strike affidavit evidence

The Courts have long been critical of counsel’s overuse of the summary judgment path.

Also in Basaraba (referenced above), Justice Dunphy notified the profession that 2022 would see a very significant re-allocation of judicial resources in Toronto away from motions and towards trial. In spring of 2022, motion dates are being booked into December.

Counsel in the Toronto region should be mindful of the delay they will face in scheduling motions and only schedule motions for summary judgment in rare circumstances in the face of this direction.

In a recent Alberta Court of Queen’s Bench decision, Justice Feasby noted that applications to strike affidavit evidence are typically not a good use of the Court’s time. Counsel should reserve applications to strike such evidence to situations where it is material and where its admission would be genuinely prejudicial.

Tip #6: The Court retains discretion to require in-person attendance

Both the Nunavut and B.C. provincial courts have reiterated that judges should not be rubber-stamping applications that seek orders to allow accused, witnesses, and other participants to appear in court proceedings by videoconferencing. Counsel making such a request outside of a provincial practice direction should be prepared to provide an evidentiary foundation as the court retains discretion to require personal attendance.

Need some help implementing this practice advice from the judiciary? TAS has you covered:

- Principles of Civility and Professionalism for Advocates

- Introduction to Thomson Reuters – CaseLines - Best Practices for Remote Hearings, Second