So Long, Farewell

January 29, 2014

Harakiri (1962) DIRECTOR: Masaki Kobayashi

Following my initial reaction, I have had some more time to reflect on the recent decisions of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 and  Bruno Appliance and Furniture, Inc. v. Hryniak2014 SCC 8 [collectively "Hryniak"] and what it means, in the wake of Hryniak, to have a blog called “The Trial Warrior“.

Frankly, I am experiencing severe cognitive dissonance.

I started this blog back on August 10, 2009 with modest objectives: to write about legal topics that interested me and hopefully my readers and to share ideas, arguments and trends with other blawgers.

My subject-matter was, admittedly, esoteric — cutting a wide swath from civil litigation to international law to professionalism and ethics —- but it was the greatest vehicle to participate in the Blawgosphere and meet some great legal minds along the way, some of whom I have had the distinct privilege in meeting in person or talking over the phone. Mind you, the legal blawging community has changed dramatically since I started, as it had in the first wave in the early 2000’s.

I often blogged about trial strategy and tactics, but I noticed, in the last couple of years, fewer and fewer reported trial decisions and appeals. Yes, I am aware of the oft-repeated statistic (anecdotal or apocryphal as it may be) that 95% of civil cases settle or are dismissed before trial. So what about the other 5%? While I continue to have a number of my own cases go to trial, I expect a major seismic event in the the conduct of a trial of an action in the Ontario courts, especially in Toronto.

C’est la vie. C’est la guerre.

What troubles me greatly is not the name of this personal blawg: I could have used a catchier title or theme. This one stuck over the years. I could change the name to “EXTREME HAIL DAMAGE ATTORNEY BLOG ™ ” or “THE HTRATCTTTCATHOUH BLOG ™”.

So what’s my problem, you ask?

Here’s what the Court of Appeal for Ontario said about the purpose of summary judgment and the primacy of the civil trial in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII) :

[38]         However, we emphasize that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court. [emphasis in the original]

Now, compare what the  Supreme Court of Canada’s view in Hryniak v. Mauldin, 2014 SCC 7 :

[2]                              Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.  This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.  The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. [emphasis added]

Thanks to my fellow blawgers: Scott Greenfield, Mark Bennett, Brian Cuban, Ken White, Gideon, Rick Horowitz, Karim Renno, Keith Lee, Eric Turkewitz and many others who have been gracious in linking to my posts and challenging my preconceptions, biases, nescience and cantankerousness.

I may start up a new blawg, eventually. In the meantime, I wish to express my gratitude to my regular readers. I will not commit seppuku and shut down The Trial Warrior Blog; rather, I will indulge in the irony of the death of the civil trial in Canada by keeping it as an internet monument, until it gets ripped off by some splogger.

Thanks,

Antonin I. Pribetic

2014 Canadian International Law Students Conference

January 28, 2014

CILSC

I am privileged to be the keynote speaker at the upcoming  2014 Canadian International Law Students Conference, jointly presented by the International Law Society of University of Toronto Faculty of Law and Osgoode Hall Law School on Saturday, 1 February 2014 from 9:30 AM to 6:00 PM (EST). Here are the event details:

Event Details

The CILSC provides a forum for law students, academics, practitioners, and leaders in the field to exchange ideas about Canada’s international and domestic performance in public and private international law. Speakers will also touch on how to begin exploring a career in this field. For speaker bios visit www.cilsc.com

The conference has a history of attracting prominent speakers involved in the practice and study of international law. This year we are featuring speakers across five panels:

Panel 1: Litigating Foreign Cases in Canadian Courts
Panel 2: International Intellectual Property Law
Panel 3: Careers in Public International Law
Panel 4: Careers in Private International Law
Panel 5: Law and the Syrian Crisis

Schedule:

9:30-9:45 Introductions
9:45-11:00: Substantive panel 1 (Public)
11:15-12:30: Substantive panel 2 (Private)
12:30-1:30: Lunch
1:30-2:30: Concurrent Career Panels
2:45-4:00 Substantive Panel (Syria)
4:00-5:30 Reception

Ticket Information:

Online Student Ticket: $12.00

In-person Student Ticket: $10.00

For in-person tickets, Osgoode students please contact cassandrastefanucci@osgoode.yorku.ca; U of T students please contact james.rendell@mail.utoronto.ca or ws.wu@mail.utoronto.ca. These tickets will be available at the door.

Professional Tickets: $75.00

Current members of the bar who attend the conference are eligible for up to 3.75 hours of CPD credits. We will provide holders of Professional Tickets materials to be submitted to the law society for CPD credits.

If you’re interested in a career in international law or want to hear about the latest international law developments from leading academics and practitioners , this is a must-attend program.

The Trial Warrior Blog, But Not Yours Truly, Gets Cited By An Ontario Court

January 23, 2014

[15]           The plaintiffs rely on a document entitled The Trial Warrior Blog dated November 11, 2013 that discusses Kaynes v. BP2013 ONSC 5802 (CanLII), 2013 ONSC 5802 (“Kaynes”). The plaintiffs rely on the fact that the defendant Penn West’s shares are traded over the Toronto Stock Exchange in support of their allegation that Penn West carries on business in Ontario.  In Kaynes, an Ontario Court assumed jurisdiction over a foreign issuer in a securities class action.  TheKaynes decision can be readily distinguished from the claims in this action because the plaintiff in Kaynes sought leave to bring a statutory action for secondary market representation under Part XXIII.I of the Securities Act, R.S.O., 1990, c. S.5, as a result of alleged misrepresentations in the defendant’s prospectus. The Court considered the analysis in Van Breda and held that the alleged “statutory tort” was a new connecting factor created by section 138.3 of the Securities ActThere are no such claims nor is there any allegation of a breach of an Ontario statute in this case.

Manson v. Canetic Resources Ltd., 2014 ONSC 261 (CanLII), per Beaudoin J.

Well, it’s more than a document, it’s a blog post: Antonin I. Pribetic, “Ontario Court Assumes Jurisdiction Over Foreign Issuer in Securities Class Action”, The Trial Warrior Blog: http://thetrialwarrior.com/2013/10/24/ontario-court-assumes-jurisdiction-over-foreign-issuer-in-securities-class-action/ , October 24, 2013) .

Still, I’m pleased that self-represented plaintiffs took the time to cite The Trial Warrior Blog, even without author or link attribution.

Carry on.

Happy Trails and Happy Trials: Supreme Court of Canada Rules On the Test for Summary Judgment

January 23, 2014

 Today’s Supreme Court of Canada decisions on the summary judgment appeals in Hryniak v. Mauldin, 2014 SCC 7 and  Bruno Appliance and Furniture, Inc. v. Hryniak2014 SCC 8  offer a somewhat less than “full appreciation” of the test summary judgment established by the Court of Appeal for Ontario. [See my backgrounder on the Court of Appeal for Ontario's "full appreciation" test  here.] 
Read the rest of this entry »

How NOT To Bring a Motion for Interim Recovery of Personal Property

January 22, 2014

[2]        On other occasions, I have seen and expressed – both orally and in handwritten endorsements – concerns about the approach adopted on matters such as these.   Since this motion follows the same path, I am hopeful a more formal endorsement may have the effect a less forceful approach did not.

….

[8]        The court must be vigilant to ensure that orders are not made without notice easily.  The moving party must satisfy the court that all procedural and substantive requirements have been met.  Even then, the terms of the order should be carefully tailored to ensure that rights are not trampled.  Its terms and duration should be no more than is required to ensure that the court can effectively and fairly adjudicate the ultimate dispute.

[9]        This case provides a useful example of one requiring caution.

So begin the sobering reasons of Justice Grace in Paccar Financial Services Ltd. v. 2026125 Ontario Limited, 2014 ONSC 456 (CanLII),. a cautionary tale of the perils of moving without notice when notice is not only advisable,  but mandatory. It also serves as an object lesson in the vital importance of formulating a sound litigation strategy, including filing a factum that cites not only the applicable procedural rules, but also the cases upon which one intends to rely.

The plaintiff’s motion under  Rule 44 of the Rules of Civil Procedurewould appear to most practicing commercial litigation as relatively straightforward.  The problem identified by Grace, J. is that plaintiff’s counsel failure to follow basic procedural requirements:

[12]       Rule 44 establishes a number of requirements.  For example, an affidavit filed in support of a motion for interim recovery of personal property must contain listed information.  Rule 44.01(2) addresses the issue of service in these terms:

The notice of motion shall be served on the defendant unless the court is satisfied that there is reason to believe that the defendant may improperly attempt to prevent recovery of possession of the property or that, for any other sufficient reason, the order should be made without notice.

[13]        If a motion is made under Rule 44 without notice, the court may make an interim order.  Rule 44.03(2) provides in part:

On a motion for an interim order for the recovery of possession of personal property made without notice to the defendant, the court may,

(a)…direct the sheriff to take and detain the property for a period of ten days after service of the interim order on the defendant before giving it to the plaintiff… [Italics added]

[14]       I noted that the draft order provided by Paccar’s counsel contained no temporal limitation.  It did not comply with Rule 44 and importantly if signed, completely obliterated the rights of a party given no voice.

[15]       Furthermore, rule 44.03(2) clearly contemplates that an order for interim recovery of personal property will be enforced by the sheriff.[2]  That comes as no surprise.  Section 141(1) of the CJA provides that the court’s orders arising out of a civil proceeding shall be directed to the sheriff for enforcement in Ontario unless a statute provides otherwise.

[16]       The draft order contemplated enforcement by a bailiff retained by Paccar.  That, too, is not in accordance with the CJA or rule 44.

Although moving party’s counsel also relied upon  s. 67 of the Personal Property Security Act, R.S.O. 1990, c. P.10 (“PPSA”)which empowers a judge to “grant a range of orders at the request of, among others, a secured party ‘[u]pon application’.  ”  Since the proceeding was commenced by way of a notice of action, it too failed to follow the correct procedure.

Justice Grace’s consternation is evident:

[26]       Those differences are not cosmetic.  By way of example only, an affidavit filed in support of a motion may contain statements of the deponent’s information and belief.  An affidavit filed in support of an application must confine such statements “to facts that are not contentious”: see rules 39.01(4) and (5).  Much of the solicitor’s affidavit in this case is based on information and belief.  In paragraph 11 of his affidavit, the solicitor deposed:

I do verily believe that the acts of each of the Defendants are intentional and designed to deprive the Plaintiff of the Equipment and convert same to their own use.

[27]        The affidavit strays beyond issues which can be termed “not contentious”.

[28]       On a motion under Rule 44, the general rule applicable to facta applies.  A party may file a factum but is not obligated to do so: rule 37.10(6).  On an application, a factum is required: rule 38.09(1) (a).  While, in my view, even on motions counsel should file copies of provisions of statutes that are not included within publications containing the Rules, the importance of a factum in a case like this should be obvious.  The PPSA is not referenced on a daily basis on dockets in this region.  I suspect that is so elsewhere in Ontario with the possible exception of the Commercial List.

 The learned judge also expresses dismay over the lack of notice:

[37]       One would have thought that an inquiry would have been made before a motion was brought without notice.  One would have thought that the duty to provide full and frank disclosure necessitated disclosure of the existence of a lawyer who was believed to represent 125 in a piece of litigation raised by Paccar in support of its position before me.[6]  One would have thought that, out of an abundance of caution if nothing else, that lawyer would have been given notice – even if abridged – of the January 14, 2014 attendance.  One would have thought that full and accurate information would have been volunteered to the court.

[38]       After raising the issue, I was told that a copy of Paccar’s motion record had been sent to 125’s lawyer after the first attendance.  At my request, counsel filed a copy of the January 16, 2014 e-mail enclosing same and advising 125’s lawyer of the January 17, 2014 return date.

[39]       For now I will go no further than expressing my profound disappointment.  Advocacy has boundaries.  They were not respected.  Some notice could and should have been provided.  The solicitor’s affidavit on this motion was sworn on January 7, 2014, the very day that the same lawyer was writing to 125’s lawyer in respect of the CLE matter.

[40]       While my concerns with the lack of notice have overtaken my concerns with the procedure Paccar adopted, I will address the procedural issues too.

Ultimately, the motion failed for a variety of procedural deficiencies, the most telling of which was that interim relief was sought, yet no return date for the defendant was provided.  After telegraphing on what terms the court may be willing to entertain an application under  s. 67 of the PPSA,  Grace J. ends with this parting shot:

[61]                … Whirlwind justice is rarely just.  Paccar’s current motion is flawed in every respect.  It is dismissed without prejudice to the right of Paccar to start afresh.   

Back to the drawing board.


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