The desire for timeliness or delay frequently overlap with the desire for victory. Thus, zeal for timeliness is dynamic, depending on the parties who benefit most from it. And delay doesn’t hurt everyone. Think Research Corporation v. N & M Medical Enterprises 2023 ONSC 6910 serves as an excellent example of the fluid interests in timeliness and delay when victory is on the line. Justice Markus Koehnen, who presided over the case, notes in his decision: “If a litigant knows that it can delay litigation by between 14 and 20 months simply by bringing a motion or by insisting on a full blow application process, it will often have an interest in doing so.”[1]
Think Research acquired a business called Clinic 360, a cosmetic surgery clinic, through a share purchase agreement with N & M Medical Enterprises. The agreement included a provision for calculating the net working capital of Clinic 360 and a stipulation that if the parties could not agree on the calculation, the appropriate figure would be determined by either Ernst & Young LLP or KPMG LLP. The Think Research case surrounds the disagreement that arose over this calculation.
The main issue was over whether the court could grant a decision on the merits of the case during a case conference instead of waiting to schedule a formal motion hearing. As Justice Koehnen observed in his decision, the earliest available dates for scheduling motions, as of the decision (Dec. 7, 2023), were February 3, 2025 for motions under two hours and June or July 2025 for longer motions. Justice Koehnen ruled in favour of granting relief on the merits to Think Research and granted the application to appoint KPMG as the independent accountant under the share purchase agreement, dismissing the N & M’s competing application.
Justice Koehnen quoted Chief Justice Karakatsanis in Hryniak v. Mauldin, 2014 SCC 7: “…The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability.”[2] Justice Koehnen found that delaying the decision to a formal motion hearing would do nothing more than draw out the Think Research case even further and that he had all the resources to make a decision on the motion during the case conference.
To put another point on it, we noted in “Who Wants Timeliness” that judges are often featured at the forefront of the problem in the popular culture despite the fact our systems are largely party controlled. “Judges can get blamed because they oversee the end of calamitous cases even where they were victims as much as anyone.” Think Research is an excellent example of a judge bringing a case to a timely conclusion that could have otherwise dragged on. Judges are not the problem. A system where indefinite delay by motion attrition is the norm is the problem. More active case management and the use of case conferences to make meaningful decisions are good steps in the right direction towards timeliness in civil law.
[1] Think Research Corporation v. N & M Medical Enterprises, 2023 ONSC 6910 (CanLII), <https://canlii.ca/t/k1k7w>, retrieved on 2025-07-15 at para. 21.
[2] Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87, <https://canlii.ca/t/g2s18>, retrieved on 2025-07-15 at para. 56.