Tuesday, August 21, 2012

Delay and Fairness in Civil Litigation

1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544 is a useful case dealing with delay in civil litigation:


[17]       The civil justice system aims to resolve disputes fairly, on the merits and in a timely and efficient manner. The Rules of Civil Procedure provide that the rules are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”: rule 1.04(1).

[18]       Achieving that goal in cases involving dismissal for delay requires a careful balance of two fundamental principles. The first is that civil actions should, if possible, be decided on their merits and procedural rules should be interpreted accordingly. The second is that the procedural rules that aim to resolve disputes in a timely and efficient manner can only achieve their goal if they are respected and enforced.

[19]       Time lines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of time lines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in Finlay v. Paassen, 2010 ONCA 204, 101 O.R. (3d) 390, at para. 14: “the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute.”

[20]       The challenge posed in cases involving dismissal for delay is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits.



Canadian Law Firm said...

Since civil litigation is an adversarial process, litigation attorneys and paralegals must be willing to assume an oppositional position and embrace conflict and controversy.

Brielle Franklin said...

What an interesting post. I have been doing research for a Civil Litigation lawyer in California for a case in my law class, when I came across your article. Thanks so much for this interesting article to read. I am glad I came across your post.