As a lawsuit winds its way through the courts, more often than not procedural disputes pop up – timetables, disclosure obligations, the scope of examinations of witnesses: these are all areas ripe for disagreements between counsel (and often little understood by clients). The courts generally expect counsel to sort these matters out between themselves. In fact, the Toronto Commercial List has established “three C’s” which counsel are expected to adhere to: cooperation, communication, and common sense.

When agreement is impossible and the dispute is put before the court for resolution, judges indict the behaviour of counsel as often as they dispose of the matter on legal grounds. Schroder v Estate of Freebold-Schroder, 2019 ONSC 6569 (CanLII) is one such example.

In this decision, there were no substantive issues before the court. Rather, one party had unilaterally scheduled a settlement conference. The other party asked that the settlement conference be adjourned until previously-ordered disclosure was provided. The first party insisted the date be maintained, although agreed that it would no longer be a settlement conference. By the time the matter was heard, the only thing counsel agreed on was that it was not, in fact, a settlement conference.

In reaching his decision, Justice Pazaratz pointed out the mis-steps of counsel. These general rules, which apply to all litigation counsel, are:

• It is inappropriate for counsel to unilaterally select a date;
• It is inappropriate not to respond to reasonable requests for re-scheduling; and
• It is inappropriate to characterize a motion for directions as a “settlement conference.”

Justice Pazaratz also reached several conclusions which are particularly relevant to estate litigators:

• The court took judicial notice of the fact that cases involving 93 year old litigants should move more quickly, rather than more slowly, through the court system; and
• Counsel have an obligation to all their clients, but in particular to frail 93 year olds, to be sensible and efficient.

Sometimes procedural disputes cannot be avoided and putting them before the court is the only way to move matters forward. However, it is always wise to explore all options to resolve the matter and to ensure you act with civility towards opposing counsel throughout. As Justice Pazaratz held: “Our court system frequently gets blamed for being slow. But more often than not, it’s overly litigious parties who cause the delay.”