Decision rightly embraces Hryniak principles: Yegendorf

An Ontario Superior Court justice’s comments on the need for efficiency, affordability and proportionality in the civil justice system are welcome and represent a new standard where civil trials are no longer a default process, says Ottawa personal injury lawyer Howard Yegendorf.

In Pinto v.Kaur et al., 2015 ONSC 1356 (CanLII), Justice Frederick L. Myers opens with a quote from Hryniak v. Mauldin, 2014 SCC 7(CanLII) – the Supreme Court of Canada decision well known for its finding that summary judgment motions must be granted whenever there is no genuine issue requiring a trial.

“All providers and users of the civil justice system are responding to the culture shift,” writes Myers. “Everyone bona fide wants to give clients faster, more affordable access to justice. Leaving legal fees aside however, this can only be accomplished by moving cases along faster and doing less before each case is resolved. This is proving difficult for many users. Change usually is.”

In Pinto, a costs decision dealing with an issue between two personal injury defendants, Justice Myers says civil cases should be “decided summarily – sooner, with fewer issues, with less discovery, with less time committed by counsel, where it is in the interest of justice to do so.”

Yegendorf, a founding partner with Howard Yegendorf & Associates LLP, says the culture change discussed in both Hryniak and Pinto is poised to help plaintiffs.

“Justice Myers enthusiastically embraces the culture shift espoused in Hryniak v. Mauldin, which I think is very positive,” says Yegendorf, noting he has not yet seen a court grant a plaintiff’s motion for summary judgment post-Hryniak, though he expects it will happen soon.

“Although there have been no summary judgment decisions following Hryniak on personal injury cases in terms of liability and damages, it remains helpful for future cases.”

Quoting Hryniak, Myers says, “Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted.”

“Delays are a big issue for plaintiffs,” says Yegendorf. “When it comes to delays, there’s a real issue for their health and safety. The reality is that in many cases, the delays can jeopardize the person’s health because they do not have access to funds for care or devices.”

Beyond the financial burden, Yegendorf says being tied up in litigation has been known to cause plaintiffs’ health to further deteriorate.

“Plaintiffs don’t like personal injury litigation. It is an extremely stressful process and can sometimes last three years. As much as I tell my clients to try not to obsess on it, to let the lawyers deal with it, most cannot and it stresses them out,” he says. “It’s not a coincidence that after a case is resolved at trial or resolved through settlement the client feels physically better because they don’t have to deal with the litigation anymore. The delays are very, very onerous for plaintiffs.”

In Pinto, Justice Myers quotes a previous decision of his – Baghbanbashi et al. v. Hassle Free Clinic et al., 2014 ONSC 5934 (CanLII) – where he states, “There is no right to a trial in civil litigation in Ontario.”

It’s a “very significant statement,” says Yegendorf.

“People have always said, ‘Everybody has the right to a trial,’ but Myers is basically saying post-Hryniak that’s not true,” he says.

Myers also notes, “Counsel have to leave room in their schedules to respond to more aggressive scheduling that arises in some cases on the sudden” – an idea Yegendorf welcomes.

“I’m not going to say all defence lawyers delay cases, but it is not uncommon that, when trying to schedule trials, mediations and discoveries, we could be told they’re not available for eight or nine months, or that a certain doctor is required for a medical examination and they don’t have an opening for a year,” he says. “I think some defence lawyers take advantage of schedules to delay matters, and the most difficult thing for a plaintiff is going through delays. I think this is going to help plaintiffs.”