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Lecture Slides:

Welcome to YouCounsel.

Most people have this general understanding that if they are involved in a court action in Ontario and if their matter does not settle then it will eventually go to trial.  They believe that one trial procedure is no different from another trial because we will just need to simply follow the Rules of Civil Procedure and have the trial conducted. Many people don’t have this understanding that there is a significant flexibility within the Rules of Civil Procedure that allows the parties to be more innovative, more creative and then create their own trial processes which may be appropriate for the specific circumstances of their case.  These trials are called hybrid trials.

What are hybrid trials? What are the benefits of hybrid trials? How do you go about creating a hybrid trial? We will discuss that in today’s lecture.

We will begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions regarding your own issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

To understand what is a hybrid trial, I think, it is important to understand what is a conventional trial.  

I’ll give you this by way of an example.  How a conventional trial is done? What are some of the components?  In a conventional trial, parties make oral opening statements. If you have retained counsel, your counsel will get up and provide an opening statement which is essentially a roadmap for the judge with respect to your case—what is your case about; what is it that you’re going to prove through evidence and what not—these are opening statements, in conventional trials they are made orally.  Then comes the viva voce evidence—all witnesses are called to the stand, they are sworn in and then they provide their viva voce (oral) evidence.  Then whatever documents that the party is relying on, those documents are introduced to those witnesses.  You bring in a document. You provide a copy to the witness. You provide a copy to the judge. The witness tells the court what the document is about. The document is admitted or not based on the relevance of the documents’ authenticity.  The other side / the other party if they oppose the inclusion of that document, they will object to it and what not. There is a whole process of introducing documents into evidence which is done through the witnesses.

Then in the same context all parties have their separate book of documents which they have prepared.  You may have prepared your book of documents—these are documents that you intend to rely on at trial (to prove your case). Similarly, other parties will have their book of documents.  Nobody has a joint book of documents because each party may have disputes about what documents of the other party are relevant, which are authentic and which are not.  That is all (discussed) argued at trial. 

There is usually minimal agreement on facts between parties.  Some of the issues that may not be disputed (some of the facts that may be undisputed) the parties at times do not agree to them for the purposes of trial.  Even though a fact may be undisputed you still have to prove it.  That may take a lot of time. Even such a simple matter as proving some body’s date of commencement of employment may take a few minutes for you to prove.  The witness provides testimony that he or she started his or her employment on so and so day.  Then you provide the contract of employment or the offer letter. Then you introduce that into the evidence. By all of those steps you are then able to demonstrate to the court the date of commencement of somebody’s employment. In conventional trials a lot of times parties are not even agreeing to the simple undisputed facts.

What are hybrid trials? In Hybrid trials (you can now understand better in the context of a conventional trial) essentially they allow the parties or the courts to create a trial process which is tailored to the specific circumstances of a case.  At the base of every dispute there is one or two or a few fundamental disputes for which you are there at the court.  All of the other facts are sort of relating to that fundamental dispute.  Based upon what your dispute is what your fight is about you are able to create a trial process which is tailor-made to the needs of your specific trial.  

How would you understand this better?  Let me explain some of the components of a hybrid trial which will help you understand what a hybrid trial can do for you. For example, you can agree you can have written opening statements.  These are pre-prepared written statements. You provide them to the judge and you don’t need to expound on it verbally in front of the judge. Parties can also prepare an agreed statement of facts.  You and the other parties can sit down and say, “Ok, you know out of the 100 facts, we are agreeing that 50 facts are ok. We agree that the plaintiff commenced employment on so and so date; we agree that the plaintiff is of these many years old;” you know things like that which may not be significant issues.  Even if they are in dispute but the other party has no reason to challenge those facts then you could agree.  You prepare an agreed statement of facts and you provide it to the judge. That means the number of facts that you’re now going to fight about are less—which would save time.

Similarly, you can provide a statement which can explain to the judge what facts are in dispute.  The judge, then, knows what are the facts, that he or she needs, to focus on during the trial. You can also agree on a joint book of documents.  Parties can communicate with each other and discuss which documents they believe are Ok to be submitted as joint book of documents.  You provide a joint book of documents to the court.  With respect to evidence, it doesn’t have to be all viva voce.  You can provide affidavit evidence.  It could be partial evidence in the form of affidavit or the entire evidence in the form of affidavit.  In a lot of summary trials the evidence is through affidavits.  You can agree that the key issues, for example, the issues that deal with credibility may be provided orally.  The rest of the evidence could be in the form of affidavit. It could be a combination of those 2 things.

Parties can also agree that you have some out of court examinations which are done through court reporters, who record those examinations—which is similar to the discovery process. You have to go to examinations and you will provide those examinations as evidence. You can provide the transcripts of those examinations to the court.  They can be introduced as evidence. You can also agree that each party will have a specific time to provide their viva voce evidence.  If you see, all of these things are subject to an agreement. You can agree to these things. You can limit the time that each party is going to utilize the court’s time and then create a trial process which is really responding to the issues in your case.

If it is not obvious to you already the first advantage of having a Hybrid Trial is that it may provide you with an expeditious resolution. A trial that would have taken 10 days (of course time) may be wrapped up in 2 or 3 days.  What that means is the number of days for trial is reduced. Also you may get an early date for trial because now you’re asking for 2 days of court’s time and not 10 days of court’s time.  Anyone who has experience with a trial process in Toronto, at least, would know that if your trial is for more than 5 days, you’re looking at a date which is farther into the future than if you are looking for a trial date which is only for a day.

Potentially hybrid trial is cost effective.  Potentially I say because there’s a lot of work that goes into preparing all these things – if you’re preparing affidavit evidence, if you are discussing the joint book of documents, if you’re preparing a joint statement of facts and whatnot.  There’s a lot of work.  It may not be that that you will save a huge amount of money but there is a great possibility that you will end up saving a lot of money.  Once you’ve done that exercise you may be able to even resolve that case because now everything is out in the open—whatever your arguments are; whatever the facts that are being discussed / being disputed—the other party may recognize that they have a weaker case and they may end up resolving your case. And finally, you obviously conserve judicial resources because the time is limited for the court to allocate to all the cases before it. If you can help reduce the court’s time without compromising (obviously, with the ability to argue) your case on its merit, then that is appreciate

How do you go about scheduling a hybrid trial? There are generally 3 ways to do that. Obviously, (a) first way is by mutual agreement of parties. You discuss with other parties.  You propose a hybrid trial and if parties agree to it then you can carve out a process and then explain it to the court. (b) The other way is a court-ordered process. The court, on its own initiative, may realize that the best approach for this specific trial is not going to be a conventional trial.  The court may impose that the viva voce evidence may be limited to certain times, certain evidence may be provided in the affidavit form and whatnot. The court can very well impose that process.  (c) Finally, if you are in a situation where you are proposing a reasonable approach to a hybrid trial but the other party is obstructing it or it’s not reasonably accepting your suggestion, then there are ways under the Rules of Procedure for you to get the court involved in the process. You can ask the court to intervene and then have the hybrid trial imposed by the court, on your request, because what you’re asking is something reasonable.

The lesson to take away is, for you to (a) understand that hybrid trials are possible.  It is in your power to have those instituted and you should use those [powers] to create hybrid trials. (b) You should also recognize that hybrid trials may not be suitable in all cases.  Some cases are so complex—all the facts are so much in dispute—that it may not make sense to have a hybrid trial in those cases. You should proceed with a conventional trial.

The key thing I want you to remember is the fundamental principles of dispute resolution under the Rules of Civil Procedure.  Any step that can help the court in achieving a just, expeditious and cost effective resolution of a matter—the court will consider it.  Obviously, it has to be proportionate to the issues that are in dispute between the parties.

Thank-you for watching.