We previously published a blog on Access to Justice and Dealing with Fraudster Obstruction wherein we referred to the decision of Justice Brown in a case reported as York University v. Michael Markicevic, 2013 CarswellOnt 8851, 2013 ONSC 4311.
Access to justice is a topic of keen interest to Justice Brown, as he conveyed in a paper entitled Legoland for Litigators: or How Hybrid Trials Can Bring Out Your Inner Child. This paper was delivered on March 28, 2013, at a Law Society of Upper Canada continuing education seminar on Complex Commercial Litigation. In this blog, we summarize a selection of Justice Brown’s comments regarding access to justice, including the concept of a Hybrid Trial. We focus on when it may be appropriate to seek a hybrid procedure and the rules that may apply to it.
A significant problem with our civil litigation system, as identified by Justice Brown, is that there is a “motions culture” wherein lawyers seem to prefer to wait long periods of time for summary judgment motions rather than take advantage of short trial dates that are available within months. Often, these summary judgment motions are brought on too broad of a basis, resulting in dismissal and additional delay and expense to the parties.
Justice Brown proposes that the solution for this problem is the Hybrid Trial and points out that the days of the “conventional trial” (addressing all of the issues within the context of a single drawn-out trial) are over. Referring to his decision in George Weston Ltd. v. Domtar Inc., 2012 CarswellOnt 10880, 2012 ONSC 5001, at paragraph 35 (citing to his further decision in D’Addario v. Englobe Corp., 2012 CarswellOnt 9715, 2012 ONSC 4380, at paragraph 16) Justice Brown opined:
Our courts lack the resources to conduct each civil trial in a “conventional” fashion; they take too much time. In many cases…much of the factual evidence can be placed before the Court in written form, whether by way of an agreed statement of fact, affidavits of witnesses, or out-of-court examinations of those witnesses. Any viva voce evidence at the trial should focus on enabling the trial judge to understand and decide credibility issues, including material disputed facts.
In his paper, Justice Brown noted that the 2010 amendments to the Ontario Rules of Civil Procedure have made the civil trial modular in nature with counsel and the judge able to fashion trials tailor-made to the circumstances of each particular case. While no formal definition of a Hybrid Trial exists in the Rules, they tend to possess the following characteristics:
1. The parties file with the trial judge, in advance of trial, concise summaries of their opening statements, together with a list of witnesses and a chronology of events;
2. Affidavit evidence is used for most of the evidence-in-chief at trial of a witness, including the witnesses’ evidence on issues in dispute, and through the affidavit the witness introduces documents relevant to his or her narrative;
3. The evidence-in-chief of key witnesses may be supplemented by some viva voce evidence-in-chief at the trial, designed in part to “warm-up” the witness before cross-examination or to provide the witness evidence on key documents or events;
4. Most documents are tendered on consent, with the formal proof of specific documents limited to cases where a dispute exists about the authenticity per Rule 51 (Admissions);
5. Pre-Trial out-of-court examinations may form part of the evidence of a witness for the purposes of trial;
6. Most of the viva voce evidence of a witness at trial will focus on the cross-examination of the witness on key events which are in dispute or on challenging the credibility of the witness;
7. Agreed statements of fact may be used by the parties;
8. Where experts are to be relied upon, the experts should meet in advance of trial to prepare a joint statement identifying (a) the issues they agree upon, (2) the issues they disagree upon, and (c) their reasons for disagreement.
This list is not exhaustive. The point is that the Hybrid Trial can be custom designed to fulfill the underlying theme of the Rules – to secure the just, most expeditious and least expensive determination of every civil proceeding on the merits. Judges can rely upon Rule 20.05(2) – that is, if an action is ordered to proceed to trial, the court may give such directions or impose such terms as are just.
So when should Hybrid Trials be considered by the parties? Justice Brown advises that Hybrid Trials are appropriate when the chronology of events and the supporting documentation generated by those events are largely not in dispute, but there remain sharp differences over a number of material events. This is often the case in commercial disputes, including commercial fraud litigation and asset recovery.
The difficult issue, and one that has not yet been adequately adjudicated, is how to obtain an order directing a Hybrid Trial. Lawyers defending “fraudsters” find that delay is their ally and they are reluctant to consent to a Hybrid Trial. If a fraud victim wishes to proceed by way of Hybrid Trial, they should notify the defence counsel of their intention prior to, or during, discovery, as the hybrid mode will influence the approach to discovery (e.g. obtaining admissions and building a chronology with respect to documents). With a well tailored examination for discovery transcript, where the admissibility of documents is admitted and a chronology of events is clearly laid out, a motion may be brought for an order to set the action down for a Hybrid Trial. This is especially the case where there are “Doe Defendants”, who may have knowingly assisted in the wrongful conduct or received the victim’s funds, and where the fraud victim wishes to proceed for judgment first against the known primary fraudster. See also Wish Group Inc. ats De Vrij 2013 CarswellOnt 8039 (Commercial List).
At Investigation Counsel PC, we advocate Hybrid Trials for fraud victims seeking access to justice. For further information, please contact us at www.investigationcounsel.com.