The unfortunate reality for many fraud victims is that those who betrayed their trust will resort to lawyers who are more concerned with lining their pockets with a victim’s money (as paid to them by their fraudster clients) rather than provide immediate open disclosure to what happened with a fraud victim’s money; the usual reason – alleging there was nothing fraudulent about the transaction in question.
Historically the procedure courts in Toronto (referred to as Master’s Courts) have been inefficient at dealing with the obstructionist tactics of fraudsters and their lawyers, notwithstanding that the general principle of the Rules of Civil Procedure is 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.
Recently Justice Brown has admonished his fellow judges on their lack of concern for parties to fraud litigation who get stuck in a procedural quagmire of obstructionist tactics during the discovery phase of litigation. As discovery procedure is controlled by procedural judges, known as Masters, his comments are most applicable to them. The following is an extract from one of Justice Brown’s cases:
More substantively, the motion raises important questions about the practical availability of access to the civil justice system.
Access to the civil justice system requires ensuring that courts are made accessible to all, not just to the wealthy. Such access must be achieved in ways which are fair to the legitimate interests of both parties to a lawsuit. How to achieve such fair access to our system of civil justice is not a debate about abstract concepts. Maintenance of the cohesion of our civil society depends, in significant part, upon ensuring that those in society who have legal disputes enjoy access to the public civil justice system in order to secure an adjudication of those disputes. Lack of access to justice is not the negative of some desired abstract concept; lack of access to justice puts us on the road to unwinding the weave which holds our civil society together.
The present case presents a concrete example of the problem. [The Plaintiff] is making serious allegations of fraud…[The defendant] vigorously denies the allegations…The lawsuit has been on-going for over a year…[S]uffice it to say for this overview, some year and a half after this action commenced, it is not much, if any, closer to a trial date…[H}ere the parties stand, five months after my decision on their first round of … motions, no closer to trial, and with one defendant asking for…
Achieving access to the civil justice system requires taking concrete steps. The most concrete and most readily available step to improving access to justice involves judges consistently making greater use of their inherent powers to control the civil justice process to ensure that those who seek justice actually end up in a court room where justice is dispensed, without encountering financial exhaustion before reaching the threshold of the court room.
Why do judges not exercise greater control over the civil justice process to achieve that end? Are they fearful that if they try something creative to move a case along, they will be slapped down by an appellate court? Perhaps that thought lingers in the recesses of their minds, but decisions of appellate courts of this province in recent years have supported such efforts by trial and motion court judges, as long as the creative solutions are fair.
Are judges becoming indifferent to the task of attempting to control the civil justice system? Here we are moving closer to the present day reality on the ground. One cannot overstate the oppressive effect on judicial morale of the endless waves of cases which seem to be going nowhere in a civil justice system that is sinking. Why try to be creative when the system, with a life of its own, grinds relentlessly on and downward?
Have judges lost touch with how to move a case along to a final adjudication? For the better part of 20 years the relentless mantra has been – trials are bad, mediation will solve all problems. Of course, it hasn’t…Let me venture the view that judges, as a collective, are losing the will and ability to move cases along to trial because we are led (wrongly) to believe that trials represent a failure of the system.
Where does all of this leave the person who really matters – the litigant in the civil justice process, who more often than not simply wants to get before a judge, tell his or her story, and get a decision? If one were to describe the progression of a civil lawsuit, from its start to finish, as akin to a walk from one side of a field to the other, with the determination of the parties’ legal rights awaiting on the far side of the field, then litigants increasingly are coming to see that walk as one involving small, tentative, money-draining steps, with each side probing the ground ahead, through interlocutory motions, to ensure no tactical obstacle or hidden mine lurks beneath the surface of the field. As the parties’ snail-paced walk proceeds across the field, and as the money flows out of their pockets, all too often, at the point when the parties’ financial resources are exhausted, they raise their heads, look across the field, and discover that the other side – whence rests the final decision on their dispute – remains elusively distant and beyond their practical reach.
That should not be. Such a state of affairs reflects an unacceptable failure on the part of our civil justice system. The primary purpose of our civil justice system must be to enable those who have legal disputes against each other to secure an impartial third-party adjudication of their disputes.
I have come to the conclusion that the best way to adjudicate the merits of the case is not through endless interlocutory motions, where slivers of the merits of the case are subjected to intense scrutiny, but to no final result. Nor is it through making every case pass through the hoop of rigid mandatory mediation, when the nature of some disputes dictates getting before a judge as soon as possible. Nor does the solution lie solely in case management which, unless relentlessly focused on pushing a case on to trial readiness can turn into as unproductive a quagmire as interlocutory motions. The best way is by forcefully managing the parties to trial.
The plaintiff has made serious allegations against the…defendants, which the defendants deny. I do not know who is right or who is wrong. What I do know is that the [parties] are entitled to their day in this Court. If they win before the trial judge; they win. If they lose; they lose. But, the [parties] are entitled to have a judge of this Court be the one who decides whether the most serious allegations leveled against them have or have not been made out.
These comments express, perhaps in somewhat blunt language, the fundamental principle underpinning our province’s civil justice system – its purpose is to secure the just, most expeditious and least expensive determination of civil proceedings on their merits, by employing a process proportionate to the importance and complexity of the issues and to the amount of involved and, I would emphasize, by using a process which actually results in a final decision on the merits. Fair; fast; cost-effective; finality – these, then, are the principles which will guide the exercise of my discretion engaged by this particular motion.
Justice Brown also declared that in order for access to justice to have meaning, the conventional trial no longer is the norm. Civil trials should be modular in nature, with the court fashioning trials tailor-made to the circumstances of each particular case. York University v. Michael Markicevic, 2013 CarswellOnt 8851, 2013 ONSC 4311, at paras. 1-14 [Emphasis Added]. It is our submission to the Master’s Courts that they follow Justice Brown’s directives.
At Investigation Counsel PC, we are experienced at dealing with the obstructionist tactics of fraudsters and their lawyers. For further information feel free to contact us .