The Proportionality Principle

The Proportionality Principle

Campoli Electric Ltd v Georgian Clairlea Inc 2017 ONSC 4898 commented on the proportionality principle that is emerging in litigation- the quest for a cultural change to best promote the most expeditious and least expensive determination of every proceeding on its merits. attempts to utilize the mediation process as much as possible as it is fast, inexpensive and results in settlements in over %90 of the cases that utilize it.

Abrams v. Abrams, 2010 ONSC 2703:

“Proportionality signals that the old ways of litigating must give way to new ways which better achieve the general principle of securing the ‘just, most expeditious and least expensive determination of every proceeding on its merits.’ ”

In Hryniak v. Mauldin, 2014 SCC 7, Justice Karakatsanis was discussing the test for summary judgment, but what she had to say is thematically applicable to lifting these stays. At paragraphs 27 and 28 of her judgment at the Supreme Court of Canada, she stated:

There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. [my emphasis]

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