graesser j

1.2: Purpose and intention of these rules
4.1: Responsibilities of parties to manage litigation

Case Summary

This was an Application to move litigation forward in a number of Actions for which certification as a Class Action was proposed. The analysis focused on whether a stand-alone Application could be made under Rule 1.2(3).

Graesser J. remarked that the only precondition to making an Application under Rule 1.2(3) would appear to be the existence of an Action, although in his view such an Application would be premature without the parties first having made efforts among themselves to identify the issues and to determine the quickest way to resolve the dispute at the least expense: see Rules 1.2(2)(a)-(c). Graesser J. also stated that Rule 1.2(3) contemplates that both substantive and procedural matters may be addressed. Because the Plaintiff had sought responses from the Defendant on a number of procedural and substantive matters, and because the Defendant’s response was essentially non-responsive, Fthe Court determined there was no procedural bar to bringing this Application. Graesser J. determined that in light of the obligations to comply with Rule 1.2, the Plaintiff was entitled to a meaningful response. His Lordship stated: “a meaningful response does not mean total agreement, but it does mean addressing each of the matters raised in an open and forthright way”. Graesser J. defined “facilitate” in Rule 1.2(3)(a) as meaning “to render easier; to promote, help forward; to lessen the labour of, assist (a person)”. His Lordship determined that this provision must be read in the context of Part 4: Managing Litigation and, in particular, Rule 4.1:

4.1       The parties are responsible for managing their dispute and for planning its resolution in a timely and cost effective way.

Graesser J. noted that scheduling and moving the matter forward is no longer primarily the obligation of the Plaintiff; that the Defendant must shoulder some of the responsibility for the Rule 1.2(1) obligations. Graesser J. concluded that Rule 1.2(3) is intended to facilitate creating an appropriate task list and moving the timeline towards completion.

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