Eight years ago when Wortzmans was first founded, we would scour the cases looking for a mere mention of proportionality in cases other than Charter violations or sentencing. Now, proportionality is a hot topic for Canadian courts. Since the Supreme Court’s landmark decision in Hryniak v.Mauldin proportionality is a frequent discussion point in civil litigation, including the discovery process. Case after case addresses proportionality concerns.
As e-discovery lawyers, we are always considering how proportionality can be applied to our practice. This often means adopting a more ‘civil’ approach to litigation by balancing competing interests of the parties and taking a reasonable approach, instead of fighting tooth and nail for small victories.
Litigation is often impeded by excessive expense and delay, undermining litigants’ access to justice. Proportionality is now a means to address some of these issues. Since Hyrniak, the zealous advocacy that we were taught in law school has been dubbed ‘Old Brain Thinking’ and lawyers today are prevailed upon to balance the costs associated with each step in the litigation with the likely outcomes. This might mean accepting a flawed Affidavit of Documents in circumstances where perfection will not assist in achieving a better (or different) outcome. It could also mean playing your trump card early on in the litigation, instead of waiting for trial.
Proportionality will mean different things in different contexts and how it is applied will vary from case to case. But one thing is clear – proportionality will govern how we practice law in Canada.