Legalviews Personal

Often there are long waits (and complications) before an application is heard and decided in the Court of King’s Bench. That eats up a lot of time and money. Often the wait greatly favors a defendant, especially a defendant with a weak defence. If your client has an arguable lawsuit or defence and will be prejudiced by delay, the situation is bad, but not 100% hopeless. What can you do about that?

Keep making reasonable, written suggestions and concessions to speed up the process. If your opponent is honest and dependable, even include litigation plans with deadlines. Keep updating those offers, to forestall any (probably unsound) suggestion that they were made too early in the suit. Try to make your suggestions comply with all the requirements for a formal settlement offer.
Do the same thing with proposals to settle the whole lawsuit. If a procedural or other dispute arises and an application is needed or pending, do the same thing with that dispute.
See if you can start with an application before a justice i.e. one outside the powers of an Applications Judge, as the lists for dates for the latter officers are often entirely full.
Go more than halfway to meet any procedural disputes, and offer to your opponent several alternatives. During an examination for discovery (questioning), try to restate and reword your question if it is objected to. Be slow to object to a question from the other side. If you must object, suggest how the opponent could amend or rephrase the question to remove any objection. After the session is finished, go over any objections which you have made and see if you can withdraw some of the objections and furnish an answer or a partial answer. Offer to put under oath such answers.
Be conservative in claiming or imposing or using any privilege or restrictions on any kind of disclosure. Work hard to ensure that your client digs up all relevant records or other information, and prepares very carefully for affidavits of records, or for being questioned, especially as a corporation’s representative. If you are in a hurry in this suit, make your affidavit of records informative. Do not use only two words (or zero words) to describe a big bundle. Always show which type of privilege applies to which records.
Do not make or resist an application unless you are satisfied that your position is reasonable, fair, likeable, and legally sound. In other words, that you have well over a 50% chance. And make sure the topic is important. If you are junior, get advice from an experienced litigator.
Use notices to admit facts, often accompanied by papers (such as copies of records) showing why the proposed admission is true. Draft the notices to make it hard for opposing counsel to give what in form is an answer, but in substance is not. (For clues about that, look at English precedents for interrogatories.)
Negotiate agreeing to having an application promptly arbitrated by a sole respected lawyer or retired judge.
Make use of mediation, judicial dispute resolution, a reference to a referee, or case management of the suit by a judge of some kind. The cost of mediation is usually comparatively low, even if the parties have to split a mediator’s fee.
Try to shave an application down short enough to be heard in ordinary morning chambers, especially at the end of the list. For example, have a brief supporting written argument.
See if your application can legitimately fit into the criteria for the Commercial List (which moves at a proper speed).

– Hon. J.E. Côté

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