The Perfect is the Enemy of the Good

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The Perfect is the Enemy of the Good

As practicing lawyers the above phrase has long held a lot of meaning for our firm. Our justice system, for too long, has been focused on achieving perfect justice for the benefit of 1% of citizens with the result that our civil litigation system is prohibitively expensive for the great majority of middle class people to access. The bottom line is middle class people do not have access to our civil litigation system because the cost is too expensive.

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In a recent decision of the Supreme Court of Canada in Hryniak vs. Mauldin 2014 S.C.J. No. 7, the Supreme Court of Canada attempted to rectify this problem. The Supreme Court attempted to do so by allowing what is called Summary Judgment in potentially more cases. Summary judgment avoids a full-blown trial, and the matter is determined based upon affidavit evidence only. This allows a resolution of a problem in a much quicker and less costly process.

The Supreme Court of Canada Courthouse.

The Supreme Court of Canada Courthouse.

Summary judgment rules have been in place in Alberta for many years, but they have resulted in longer and more expensive litigation rather than less expensive litigation! This is because if you bring a Summary Judgment application the court will typically decline to grant Judgment erring too much on the side of caution saying it needs to hear and see oral witness evidence. The result is that a lot of time and energy was spent on the Summary Judgment application and then the parties are back to square one trying to get the matter to trial.

In this new decision the Supreme Court of Canada has directed trial judges to grant Summary Judgment when it is “just and fair”, and when the court has the necessary information needed to make a decision. Basically the court is saying, it is not an interesting question anymore, how good are trials?

Unfortunately the Supreme Court of Canada did not give further guidance as to what is “just and fair” and when a court has the necessary information.

However, at least the Supreme Court of Canada is aware of the problem as Justice Karakatsanis’ Judgment declares that “a culture shift is required” in civil justice. She calls on motion judges across Canada to interpret their civil procedural rules on Summary Judgment, “broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”.

We also agree with the Supreme Court of Canada when it stated that the “touchstone” for access to civil justice is the “proportionality principle”, i.e. the process used must be proportionate to the nature of the dispute and the interests involved, and the most pain staking procedure is not always the best means for resolving a dispute.

In layman’s terms if you have $100,000.00 dispute the same procedures, protections, cautions, and due diligence rules should not apply as if it is a $5 Million dispute.

Fortunately with injury claims lawyers can work on what is called a contingency fee agreement, which means the lawyer is not paid anything unless the lawyer is successful in the outcome and then the fee is a percentage of the successful settlement or judgment. This allows many victims to bring claims as the law firm is carrying the costs and not being paid anything, sometimes for years, until final conclusion, and then the law firm is paid from the settlement proceeds. Unfortunately, contingency fee agreements are not appropriate for all areas of civil law, and many times where liability is not clear in a motor vehicle accident the injured party may still have a difficult time finding a lawyer. This is because if the case is not successful, under the terms of the contingency fee agreement, the lawyer is not paid anything at all for his or her time.

By | 2017-07-14T18:17:03+00:00 July 2nd, 2014|Insurance Claim Issues|0 Comments

About the Author:

Mr. Brent Handel, J.D., Q.C. is the head of the Personal Injury and Fatal Accident Group at Handel Law Firm.

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