Litigation Fever – Part II: Dealing with Delays

Mathieu:  Hi, I’m Mathieu Rompré.
 
Peggy: And I’m Peggy Moss. This is episode 5 of the Blakes Continuity Video Chat.
 
Mathieu: A what? No. No, no. This is a podcast. You know, the thing we’ve been doing for nearly two months now?
 
Peggy: But haven’t you heard? Everything is video now. Even courts are doing video hearings. Which makes me wonder, do you think there is some flexibility on robes?
 
Mathieu: You mean like bath robes?
 
Peggy: Yeah! Never mind! Maybe now would be a good time to remind listeners that this podcast does not constitute legal advice.
 
Mathieu: Or fashion advice, in case anyone was wondering.
 
Peggy: We are joined now by Blakes litigation Partner Max Shapiro. Max, I understand that courts have made it clear that they’re up and running. What does that look like?
 
Max: Well, there is certainly a shift towards reopening of courts. They’re starting from the position where there has been a fairly lengthy period of initial suspension and service adjustments.
 
If you had a non-urgent hearing that was scheduled in late March, April and now into May, there’s a good chance that it was postponed. And if you were looking to file something in a court office, there’s a good chance you could no longer do that in person. So, certain courts were able to maintain more “normal operations” ― some of the smaller and more specialized commercial courts come to mind ― but there was a shift from initial suspensions now towards gradual reopenings where we’re seeing a big push for written court matters, teleconferences, videoconferences and an expansion of the types of matters that can be heard remotely.
 
The bench has been signalling a greater emphasis on keeping things short and simple and encouraging parties to resolve their differences outside of court, if they can. There’s not much patience for disputes that will not determine the case or for parties playing games. But the reality is that the courts are facing a backlog of cases that have been put on pause as a result of the emergency declarations.
 
It’s also important to note that the courts have not been closed for new matters. So new filings have been trickling in, and parties tend to be using electronic filing to do this. So, the new normal continues to evolve day by day. The courts are adapting week by week, and you’re now going to be seeing a shift towards dealing with this log-jam at the same time as trying to efficiently manage a new batch of cases.
 
Mathieu: Max, talking about the log-jam. Do you hear concerns from clients about the possibility of getting a timely hearing?
 
Max: Litigation in the court system can sometimes take many years, and now litigants are facing the prospect of delays of additional months to have their matters handled, and there is concern about that one.
 
But there is, on the other hand, I think, a good sense of flexibility among most litigants that this type of situation is no one’s fault and it’s out of people’s control. What the thrust of the questions we are getting now from clients relates to is how can we deal with our dispute most efficiently having regard to the constraints. And although the courts are anticipating, you know, a gradual reopening and a rescheduling of matters that were postponed, I would say starting in June, the process for managing that backlog is still unclear in a lot of places. And courts are moving towards the direction of avoiding, what I’ll call, a first-come, first-serve rescheduling system that is dealing with cases where their lawyers get there first asking to reschedule them and instead trying to develop a system that’s somewhat more actively managed by the type of case and the type of hearing.
 
We are planning for a very busy fall in 2020 as litigants are gearing up for courts to reopen. But you are seeing parties, Mathieu, respond in three ways to the current log-jam, as you put it. The first main way that we’re seeing is reconsidering ways to resolve their cases without having to use the courts. So, we have definitely seen an uptick in settlement discussions among lawyers of parties, as well as an uptick in virtual out-of-court mediations. The second coping strategy we’ve seen is waiting things out and moving things forward as best as one can given the current constraints. And a third group is exploring arbitration out of court where the parties agree to have a third-party arbitrator settle their dispute.
 
Mathieu: Thank you, Max. That’s the perfect segue to bring Alyssa Duke into the conversation. Alyssa, you have a dispute resolution practice, and you are based in Alberta. Do you have a sense of how clients in your province are responding to the log-jam that Max just described?
 
Alyssa: Clients and counsel now have to evaluate each dispute under a new light given the challenging economic realities we’re facing both with COVID and in Alberta with the record-low price of oil. So, clients are looking for options to resolve disputes in a more timely manner. In fact, in Alberta, the court is even encouraging litigants to act as alternative dispute resolution forums.
 
There’s three options, I think, that everyone should look at, the first being reconsidering settlement options in light of these new economic realities. The second is mediation. I attended a mediation last week by video conference at a very early juncture in the file. The matter was successfully resolved in advance of questioning for discovery. So, in that instance, mediation was the most effective means. And the third option that should be looked at is arbitration.
 
Peggy: Alyssa, what kinds of issues are good candidates for arbitration?
 
Alyssa: Parties often agree to arbitration in contracts. Parties can also move cases that are already in the court system to an arbitration process for final resolution. Further to that, parties can also agree to move some interlocutory motions or isolated issues that you may see in the litigation should the arbitration ― so that they can get that resolved on a more timely basis than may be possible in the courts.
 
Peggy: Alyssa, what are some of the potential advantages of proceeding by arbitration?
 
Alyssa: Arbitration is a really flexible process. You can tailor the arbitration to your dispute. Arbitrations are largely driven by the parties. Especially if you have competent counsel that can put forward a joint recommendation to the arbitrator with respect to timelines, limited discovery protocols, exchange of records, deadlines for expert reports. The process itself can be heavily guided by the parties. The parties also can select the arbitrator or arbitrators that have the requisite experience in the area of the dispute. Finally, counsel can agree to participate via videoconference with arbitrator approval.
 
Peggy: So, video’s interesting. What are the merits and some of the disadvantages, if there are some, of proceeding via video?
 
Alyssa: I think a clear merit is timeliness. With social distancing and office closures, witnesses are able to participate via video from their home. Video’s well suited for disputes where there’s a focus on a question of law with a more limited number of documents and fewer witnesses. You can also submit your evidence in writing in the form of witness statements, and so there’s less need to have somebody sitting on the stand for hours on end in person. Their witness statement can go in and then they’re cross-examined on that witness statement, and that can be done via videoconference.
 
In terms of disadvantages, if you have numerous witnesses and you have over half a million records, a videoconference may be a disadvantage, especially if the dispute is document intensive. It’s hard to get everybody on the same page, literally, when you have thousands and thousands of records to sift through. If there’s an issue of credibility between witnesses, I also think it’s generally preferable to have that witness in person. For cross-examination, it’s all about pace and control, and it would be harder to maintain that pace and control if you don’t have a live witness in front of you.
 
Peggy: Yeah, that makes sense. What are some of the other things that clients should think about as they consider arbitration as an option?
 
Alyssa: Typically, arbitrations are private and confidential. If there are reputational issues or other business considerations that would lead a client to want a dispute to be completely private and not on the public record, arbitration is a great forum to resolve the dispute. It also allows the parties to really set the agenda in terms of the issues. Finally, it’s just an inherently flexible process, and so in this new normal where we want to be as nimble as possible, arbitrations allow you to do that.
 
Peggy: Great. Alyssa, thank you so much for taking the time to talk with us, and good luck. I know you’ve been really busy. Alyssa Duke and Max Shapiro are partners at Blakes. They were speaking with us from their homes in Calgary and Toronto. This concludes episode 5 of the Blakes Continuity Podcast.
 
Mathieu: Thank you for tuning in. If you missed part 1 of our Litigation Fever series, listen to episode 4 on Apple Podcasts, Spotify or Google Podcasts.
 
Peggy: Until next time, be safe and stay well.