“Old Brain Thinking”

AuthorJohn O'Sullivan
DateJanuary 19, 2015

When I left a mid-sized firm to set up my own litigation practice three years ago, to describe my approach to civil litigation I used Seneca’s famous axiom which frames my business logo – “Truth hates delay”.

That message reverberates with new power through a decision released this month by Justice F. L. Myers in Letang v. Hertz Canada.

Myers J. refused a defendant’s request to adjourn a trial to permit discovery on 465 pages of documents produced by the plaintiff a month before trial.

The new productions suggested the plaintiff’s damages were $120,000 higher than the $3.5 million sought in the claim. The plaintiff agreed to further discovery providing it did not delay the trial date. He also offered to waive the additional damages.

The defendant delivered a 3 volume motion record on Christmas eve seeking the adjournment. It pointed out that its damages expert was unavailable given the holiday season to assist with the new documents.

In rejecting the adjournment request Justice Myers observed the defendant did not concentrate energies on promptly reviewing the new material, to the extent it did not require the expert. Nor did it make arrangements to get the expert’s input before the holidays. Instead the defendant’s lawyers,

“…did what counsel steeped in the traditional Toronto motions culture do – they served a big, thick motion and waited for their adjournment.”

His Honour noted a disparity between the parties. The plaintiff was an individual whose financial...

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