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. Hryniak, 2014 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) :
 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 :
 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.
Antonin I. Pribetic