The recent case of Lepp v. The Municipality of York, 2022 ONSC 6978 (CanLII) (“Lepp”) is now considered to be a form of required reading for litigants and their counsel. While the facts of the case are not particularly unique, the court’s comments on lawyers’ compliance with the Notice to Profession (effective as of August 2, 2022) (the “Notice”), and general practices as they relate to motions and applications, are noteworthy.
Regional Senior Justice M. Edwards noted in Lepp that he had been case managing the matter for several years and that it has consumed an inordinate amount of time. His Honour commented that a motion record filed was in excess of 1300 pages and that he had contacted counsel about concerns regarding non-compliance with the Notice.
The court stated, “As it relates to Civil matters, the Notice (amongst other things) provides a roadmap to all litigants and the Bar as to what is required when a matter comes before the court. The Notice is not a suggestion of what should be filed. Rather, the Notice sets forth the minimum expectations of the Court in terms of what is to be filed for a hearing.”
The Notice, in part, sets out what material is to be uploaded to Caselines (the online portal through which the court and parties access documents filed) in advance of an appearance, and how it should be uploaded. Specifically, the parties must upload to Caselines a compendium of key materials that will be referred to by counsel in argument, and have a table of contents hyperlinked to the sections within it. There should also be hyperlinks to the cases referred to. Hyperlinking is necessary so the court is able to quickly turn up the tabs in a party’s brief. Simply flipping to a tab, as was done when hard copies were filed and all court attendances were in person, is no longer always the case.
The court went on to identify 12 ways that lawyers can ensure their clients have a good chance of winning the relief sought from the court. These points include, but are not limited to: dutifully considering the fundamental question of whether the time and expense of the motion is really worth the effort. If ultimately a motion is necessary, counsel should ‘do the old fashioned thing’ and call each other up before proceeding to court, to see what issues may be resolved; less is more, and a motion record that only contains key documents necessary for a determination of the issues is best; do not exceed page limits (again, less is more); consider filing a concise factum, even when not strictly required; and upload a draft order in word format to Caselines.
Indeed, as noted by Justice Edwards, advocacy is both an art and a skill. An important part of the role of the advocate is to make the judge’s job as straightforward as possible. Overwhelming the court with documents or material that is not easy to navigate does not bode well. Clients are better served by using a practical, proportionate approach. And, that approach should be in line with the Notice, which, as the court recommends, should have a place on our desks at all times.