Wednesday, April 25, 2012

Covelli v. Sears not to be Case Managed

Under the Rules of Civil Procedure, there's a process called "Case Management".  In essence, this involves the Court taking a more active role in the litigation, with a Case Management Master overseeing timeframes for the various necessary steps within the litigation, to make sure that the process moves along to a final resolution in a timely manner.  All motions end up getting heard before the same Case Management Master, which improves efficiency.

In Covelli v. Sears, which I've been following and posting about (here and here), the plaintiffs just brought and lost an unopposed motion to bring the actions into Case Management.

If you read my prior posts, you'll know that this case involves the pleading of systemic practices - essentially, the allegation is that Sears makes a practice of alleging just cause for termination to avoid having to satisfy its statutory and common law notice obligations.  Sears challenged the pleading of these practices, and was unsuccessful.

The Case Management decision looks at the background of the case a little bit.  The actions were started in November and December 2009.  Sears brought its motion to strike portions of the pleadings promptly, which were heard in April and July 2010.  The decision was released in March 2011.  Sears applied for leave to appeal, which was denied on November 23, 2011.

As I noted in my commentary on the latter decision, Sears was out of options relating to that issue, but it seemed likely to me that the case would not just go away, but would continue to be hard fought.

Apparently, Sears still hasn't served a Statement of Defence, but rather availed itself of a process that can defer the requirement for a Defence, being a Request for Particulars.  (The basic idea is this:  If I issue a Statement of Claim against you with vague allegations, you may not have all the information you need to understand the nature of the claim being made, so you can ask for more specific information before being required to serve a Statement of Defence.)

The plaintiffs responded to the Request for Particulars, but Sears isn't "satisfied" with the response, and the parties now can't agree on how best to move forward.  It appears that Sears is taking the position that it doesn't have to serve a Statement of Defence until the request is satisfied, whereas the plaintiffs appear to be of the view that the request has been satisfied.  The plaintiffs brought this motion in the hopes that Case Management would "break the log-jam".

Master Haberman heard the motion, and refused it.  Essentially, she held that the need for Case Management here was not sufficiently established.  She acknowledged that she had "no doubt that the parties' approach to this litigation will mean multiple trips back and forth to court", and that actions with more than a couple of motions are cheaper and faster with Case Management, but that doesn't matter because the test is not whether or not Case Management would be beneficial but instead is whether a "need for the court's intervention is demonstrated".  Case Management resources are limited, Master Haberman asserts, and have further been reduced recently, including that 2 Case Management Masters have been reassigned and Case Management Masters no longer have their own dedicated assistants, and therefore it is necessary to apply the test for Case Management strictly.

There's definitely something a little unsatisfactory about this decision.  Yes, Case Management would be useful.  Yes, we're nearly 2.5 years into this litigation without even having a Statement of Defence yet.  Yes, without Case Management the process here is likely to be long, drawn out, and expensive.  But no, we're not going to move the files into Case Management, because we don't have the resources.

Worse, by all accounts Case Management is more efficient in appropriate cases; if multiple motions will be needed in this process, it will still take up Court resources, and probably more Court resources than if they were Case Managed.  This means that the refusal to Case Manage may save *Case Management* resources, but what it saves there will be lost in other ways.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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