Craig Lockwood
Sept. 4, 2017
Osler partner Craig Lockwood is on board with a push by Ontario courts to crack down on the practice of over-pleading, according to a Focus on Class Actions article in Law Times. In her article, author Judy Van Rhijn outlines how courts are leveraging cost consequences to discourage over-pleading in class actions. The article also explains how the concept is not universally agreed upon and has led to conflicting decisions. Craig, a partner in Osler’s Litigation Practice Group, explains why he thinks courts should favour a “streamlined approach” at the certification stage.
“The whole animus of a class action is judicial expediency. Theoretically, we should just certify claims that have a viable chance and favour a streamlined approach,” Craig tells Law Times.
“To be honest, the plaintiff’s bar wants to do what they can. They traditionally employ a buckshot approach. Once the essence of the claim is established, they articulate as many causes of action as can be reasonably sustained through the course of the litigation, and create a dog’s breakfast. That makes cases more difficult and needlessly complex.”
The article also points to decisions by Justice Paul Perell — “the most prolific writer in the class actions realm in Ontario,” according to Craig — that advocate against over-pleading. However, Craig says he does not believe plaintiff’s counsel has taken this concept that seriously yet.
“I do have sympathy for them. They want to pitch it at the highest level, but there is still a tendency to throw everything in except the kitchen sink,” Craig tells Law Times. “Once one side pleads it, the defence has no choice but to meet it with any available defence.”
Craig says he thinks “the judge should pick and choose what he or she wants to proceed on.”
If you subscribe to Law Times digital edition, read Judy Van Rhijn’s article “Excessive over-pleading attracts cost consequences,” on page 9 of a special Focus on Class Actions edition.