Lawyers ‘love’ hybrid trial decision

The Ontario Court of Appeal has reaffirmed judges’ discretion to choose hybrid trials. A ruling this week dismissed a claim in which the appellants said they were effectively “robbed of their ability to control the trial narrative.”

In Harris v. Leikin Group Inc., a multi-party case regarding breach of fiduciary duty, Superior Court Justice David Brown gave specific directions about the way the trial would take place. Instead of starting from scratch, the parties would use affidavits filed in a failed summary judgment motion as their examination-in-chief and the transcripts filed in the motion would serve as discovery materials, said Brown.

The lower court judge, known for his intolerance of civil matter inefficiencies, also identified who would give viva voce evidence at the trial and on what issues.

After they lost in trial, the appellants said the trial as directed by the judge was too narrow a “reconfiguration of the dismissed motion.”

But consistent with the theme of the Supreme Court of Canada’s decision in Hryniak v. Mauldin, a ruling that advanced the case for summary judgements, the appeal court approved of the judge’s directions as a legitimate way “to salvage the resources that went into the summary judgment motion.”

“It is my view that both the letter and the spirit of the judge’s directions fell squarely within what the Supreme Court of Canada contemplated in Hryniak v. Mauldin, at paras. 76-77,” wrote Justice Robert Sharpe on the appeal court’s behalf.

Civil litigation lawyers say hybrid trials play an important role in curbing inefficiencies.

“What the judge’s direction did here was it said all of this evidence didn’t have to be put in again,” says personal injury lawyer Bill Keele.

Keele’s colleague John McLeish says it’s all too common to see unnecessary examinations in their practice.

“We love the decision,” he says, adding there’s no reason to dispute trial directions like this one unless the parties want to change a response they gave in the summary judgement motion.

The appeal court also said the appellants’ complaint about the narrowness of the trial direction is a little too late. It should have been broached at the trial.

“The parties proceeded with a lengthy, complex and costly trial on the basis of the terms laid down by the trial management order. In my view, it would be contrary to law and common sense to allow the disappointed loser to complain now about the fairness of an order that could have been challenged when it was made,” said Sharpe.

He added: “Here, even with the benefit of hindsight, the appellants cannot point to a specific instance during the trial that was unfair or prejudicial, nor have they shown that they were prevented from putting the case they wanted to put before the trial judge.”

The ruling is in favour of two Ogilvy Renault LLP (now Norton Rose Fulbright LLP) lawyers who were respondents in the case. Grant Jameson and Geoffrey Gilbert were sued on the basis they knowingly assisted a company in breaching its fiduciary duty to former shareholders.

The appeal court upheld the trial judge’s decision that there was no fiduciary duty between the lawyers and the shareholders, who sold their shares.

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