[10] It is counsels’ duty to ensure a fair hearing. That means that process issues like production and scheduling are to be approached in a cooperative basis to reduce cost and aid the most expeditious resolution on the merits available. The commentary under Rule 5.1-1 of the Rules of Professional Conduct of the Law Society of Upper Canada provides:
The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected. [emphasis added]
[11] In Authorson (Litigation Guardian of) v. Canada (Attorney General) 2002 CarswellOnt 1724
A party is entitled to a fair opportunity to present its case in a focused way. Counsel, as officers of the court, are expected in furthering the best interests of their clients to present their case on its merits, its true merits.
[12] Neither side focused on presenting the case in a focused, efficient way that was proportionate to the amounts in issue. Neither side, even after being cajoled by the court, simply sat down and discussed the problem openly to work through it. Neither worked towards a fair, expeditious, proportionate resolution. It was the same old same old. The culture shift required by the Supreme Court of Canada requires change in how cases are handled. It is not good enough for counsel to just make demands in nasty emails while ignoring their own obligation to be available to produce, talk, meet, and cooperate to make issues soluble fairly and quickly. It is no longer good enough for insurance company lawyers to sit back and just wait for clerks and juniors to fill in their tick boxes on forms before dealing with the merits of an issue. At every step along the way, counsel are required to apply professional judgment to clear the way for the resolution of issues as quickly, cheaply, and proportionately as possible. Counsel are expected to bring their clients to such resolutions or to bring the issues to the court for early, proportionate, fair hearings.
[13] The plaintiff should have openly and quickly disclosed the structure of the company and provide enough information to allow the defendant to fairly make the decision of whether the plaintiff ought to be considered an employee or an owner of the company. The defendant, for its part, ought to have exercised the judgment to make a $10,000 decision and not turned the issue into an inquiry fit for a $5 million case. There was no issue of principle at play. People just needed to sit down and talk to each other instead of talking at and around each other.
[14] It follows that I am disinclined to award costs to either side.
[15] The culture shift is trying to move a mountain. It will happen one shovelful at a time.