Proportionality Trumps "Old Brain Thinking" Post-Hryniak

In the recent decision of Letang v Hertz Canada Ltd, Justice Myers refused to adjourn a trial date despite the last-minute production of documents, decrying "old brain thinking" that has thwarted timely access to Canada's civil justice system. This decision represents one judge's answer to the Supreme Court of Canada's clarion call in Hryniak v Mauldin for a "culture shift" towards greater access to justice and proportionality.

In October 2010, the plaintiffs in Letang sued four Hertz entities for $3.5 million in damages for failing to enter into a franchise relationship despite written agreements allegedly requiring them to do so. The action proceeded through discoveries, and the trial was scheduled for January 2015. Two months before trial, a pre-trial conference judge suggested that the plaintiffs deliver further documentation to support their damages and expert evidence. A month before trial, the plaintiffs delivered 465 documents to Hertz. The plaintiffs