Heenan and Hyriniak: Taking Stock

Canada’s legal sector appears to be on the cusp of major change.

From the towers of Bay Street to our courthouses across the nation, we may be embarking upon a bumpy, but perhaps overdue ride of reorganization, re-prioritization and rationalization.

Last week’s sudden collapse of Heenan Blaikie and the Supreme Court of Canada’s January 23, 2014 ruling in Hryniak v Maudlin could be harbingers of the revolution ahead.

While the Heenan, Blaikie debacle may have more, ultimately, to teach us about human shortcomings and hubris than the perils of the immediate legal marketplace, it does underscore the reality that defections, shakeups, acquisitions and takeovers have become the norm among our nations largest law firms.

The formerly stable, blue-chip legacy firms of 30 years ago have, by and large, been assimilated, merged and swallowed up into huge, global legal enterprises in which I suspect the participation of Canadian branch offices reflects a mere footnote in both balance sheets and boardroom influence.

We can only predict that this trend is bound to continue, whether it be because of internal politics and intrigue, changing client requirements and demands, or the mere, unavoidable economies of scale in an era of increasing globalization and resultingly, decreasing autonomy within Canada’s largest firms.

This cannot help but have a significant impact on the environments in which many of Canada’s lawyers work, the way they conduct business, and the expectations they may safely maintain about the future.

For those of us who work in smaller environments, however, our reactions as outside observers may range from gossipy fascination to sheer relief that our professional lives are not subject on a day-to-day basis to such unexpected tremors and eruptions.

Nonetheless, the Supreme Court’s ruling in Hyriniak leaves the rest of us with much to ponder about the future of lawyering in our civil justice system.

The most interesting aspect of this ruling remains our Supremes’ unanimous admonition to the nation’s court administrators and judges that they had better ready themselves and their judicial systems for a flood of summary judgment motions, aimed at achieving cost-effective finality, at the likely expense of the civil trial, as we have long known it.

This may prove to be a revolutionary moment in Canadian civil jurisprudence.

Our lower courts have long played a game of dance and dodge when it comes to harnessing the potential of summary judgment proceedings to render final determinations. With every Rule change that urged increasing use of summary judgment motions, our Courts responded to this mandate by establishing extraordinarily high, often ambiguous thresholds of proof and certainty as prerequisites for their preparedness to rule on a final basis.

Underlying this hesitation was a genuine deference by our judges to the civil trial as a time-honored and tested best methodology for getting to the truth.

The prohibitive cost of civil trials, however, has made such “getting to the truth” a near impossibility for most. As a result, the civil trial remains a relatively rare occurrence in the lives of even the most seasoned civil litigation practitioners.

In Ontario, the costs consequences of losing a summary judgment motion and lengthy delays in the availability of motion dates have effectively thwarted the summary judgment motion as an alternate process for most ordinary litigants.

The result has been an access to justice nightmare.  And for practical purposes, our lofty ideals regarding the civil trial process have been reduced for most to the stuff of folklore and ancient jurisprudential history.

One is left to wonder whether the more ready availability of summary judgment proceedings in civil matters will ultimately lead to more courts ruling in more cases, with fewer cases settling.  Will we observe a corresponding decline in the prohibitive influence of legal fees as a reason for avoiding the legal process altogether?

For lawyers, this change may require a heightened emphasis upon court advocacy, rather than negotiation and mediation skills, as the primary tool in our box for achieving our clients’ objectives.

More broadly, the question remains – will this new world of summary judgment lead to better, more fair outcomes, or will we be left with a “quick and dirty” justice system that will serve to further frustrate and disgruntle the public and the profession?

We are about to find out, it appears.

In either event, the theme of our times in the legal profession will remain “change.”

For new practitioners this may be a daunting experience.  Will our future success stories be comprised only of those who will see and seize the opportunities in the new horizon that is emerging?

How do we plan for a future in which the stability of our largest firms is uncertain, the civil trial will be relegated to the dustbins of history for the average citizen, and changes are now emerging with ever increasing speed?  I don’t know the answer to that questions, but I do suspect that is now particularly critical for law firms and individual lawyers to take stock.

And that is today’s SlawTip: Take stock and plan ahead.

Start drawing the roadmap for your firm ‘s emergence in the new legal frontier we are only beginning to see. Assess where your practice is, where you would like to get, where your talents lie, and what the opportunities and obstacles look like for you and your firm in the future.

And expect the unexpected.

– Garry J. Wise, Toronto (@wiselaw on Twitter)