List of Recommendations
- The need for additional Superior Court judicial resources in Central West (Brampton), Central South (Hamilton), Central East (Newmarket), and probably Toronto, is compelling. The federal government should forthwith give immediate consideration to an increase in the complement of Superior Court judges in those judicial centres. Any future appointments should expressly consider the need for bilingual judges within a given region.
- In the longer term, the needs of the civil justice system from the standpoint of number of judges required should be the subject matter of a structured analysis by the federal government. That analysis should be undertaken after broadly based consultation with the Ministry of the Attorney General in Ontario. That consultation is necessary since the Ministry of the Attorney General has much of the evidence to support, or otherwise, the case for more judges. In our constitutional scheme of things, the problems are provincial. The solution in relation to the number of judges reasonably required is a federal matter. The analysis should also take account of the impact of family law and criminal matters in relation to judge time and courtroom availability for civil matters, and the need for bilingual judges.
Small Claims Court
- The monetary jurisdiction of the Small Claims Court should be increased to $25,000. The increase should be staged. The court's monetary jurisdiction should be increased immediately to $15,000 with a further increase to $25,000 within two years.
- Deputy judges should also be given limited jurisdiction to grant equitable remedies in relation to matters heard by the Small Claims Court.
- If the court's monetary jurisdiction is increased to $25,000, there should be no right to appeal from a judgment of less than $1,500.
- I would make no change in the Small Claims Court costs model.
- I would urge the Office of the Chief Justice of the Superior Court, the Civil Rules Committee and the ministry, in consultation with the Law Society of Upper Canada, to consider whether a litigant should be able to be represented by an agent in Small Claims Court appeals and enforcement (contempt) matters in the Superior Court or the Divisional Court. This prospect is more palatable now that paralegals will be regulated by the Law Society. This requires an amendment to the Courts of Justice Act (s. 26), which references the Law Society Act. Amendment of Law Society by-laws may also be required.
- I recommend that Small Claims Court administrative judges be appointed by the province either on a regional basis or on a basis determined by the volume of Small Claims Court business in particular geographic areas. Short of new judicial appointments, designated Small Claims Court deputy judge administrators should be made part of the Small Claims Court picture. These judges or deputy judge administrators would be responsible for ensuring, among other things, that Small Claims Court trial and settlement conference lists were manageable, i.e., not open-ended.
- The monetary jurisdiction of rule 76 should increase to $100,000 on a province-wide basis, to be implemented as soon as practicable.
- Upon any increase to the monetary limit of rule 76, each party should be permitted to engage in up to two hours of discovery after giving due consideration to the cost of discovery in relation to the amounts or issues at stake.
- The summary trial option should remain in place for all simplified procedure cases. It should, however, be amended to permit a brief opportunity for examination-in-chief or general statement of any party who has sworn an affidavit for the summary trial. I would allocate no more than 10 minutes for this statement or examination-in-chief, subject to an order of the pre-trial judge or master or the trial judge to extend this time.
- The Civil Rules Committee should consider whether and how, in keeping with the principle of proportionality and without compromising procedural fairness, appeals from interlocutory orders made in simplified procedure cases ought to be prohibited or otherwise restricted.
Summary Disposition of Cases
- Do not amend the test of "no genuine issue for trial" in rule 20.
- Amend rule 20 to expressly confer on a motion judge or master the authority to weigh evidence, evaluate credibility and draw any reasonable inference from the evidence and documents filed, including adverse inferences where a party fails to provide evidence of persons having personal knowledge of contested facts. This power, however, ought not to be exercised where the interests of justice require that the issue be determined at trial.
- Amend rule 20 to permit the court to direct a "mini-trial" on one or more issues, with or without viva voce evidence, where the interests of justice require a brief trial to dispose of the summary judgment motion. The same judicial official hearing the summary judgment motion would preside at the "mini-trial."
- Eliminate the presumption of substantial indemnity costs against an unsuccessful moving party in a summary judgment motion in rule 20.06. Replace it with a rule conferring permissive authority on the court to impose substantial indemnity costs where it is of the opinion that any party has acted unreasonably in bringing or responding to a summary judgment motion, or where a party has acted in bad faith or for the purpose of delay.
- Adopt a new summary trial mechanism, similar to rule 18A in British Columbia.
- Confer on a judge hearing a summary judgment motion the authority to convert an unsuccessful summary judgment motion to a summary trial application for cases appropriate for summary trial determination. The judge should also be vested with the necessary powers to make appropriate trial management orders so as to get the case ready for summary trial determination.
- Where practicable, the same judicial officer who grants leave to amend a pleading should preside over any subsequent rule 21 motions involving the same pleading.
Undertake an independent needs assessment study, guided by a steering
committee of civil legal service providers and chaired by PBLO. Funding
from possible sources, such as The Law Foundation and the Ministry of
the Attorney General ("MAG") should be explored. The objectives of the
study should be to:
- Develop a profile of civil unrepresented litigants in Ontario and their points of interaction with the civil justice system that give rise to difficulties for unrepresented litigants themselves, court administrators and the courts;
- Determine the legal needs of unrepresented civil litigants, the scope and accessibility of existing legal services and where additional legal services may be provided to fill service gaps, geographically and in substantive civil practice areas; and
- Recommend the most cost-efficient and -effective means of providing legal information and assistance.
A committee of providers of legal information and resources (MAG, PBLO,
Law Society of Upper Canada, Legal Aid), chaired by PBLO, should meet
to coordinate the delivery of improved legal information and resources
in the following four areas:
- General information about the civil justice system and its structure;
- Step-by-step procedural information to assist unrepresented litigants;
- Summaries of substantive areas of the law that would be of greatest assistance to most unrepresented litigants in civil proceedings;
- Procedural information on enforcement and compliance with court orders.
- The committee should consider the most effective and accessible media for communicating this information to the public (e.g., printed material available at courts or community legal clinics; electronically through the Internet; or videotaped displays of court processes and acceptable court conduct).
- Bar associations and civil litigators should continue to implement and offer pro bono services and programs where possible.
- Ontario lawyers should be encouraged to consider new and innovative billing methods that promote access to justice for litigants with civil legal issues who would not otherwise be able to afford counsel.
- As part of the review of legal aid announced in 2006, the 1997 McCamus recommendations with respect to civil legal aid should be revisited.
- PBLO's efforts to develop a civil law self-help pilot project in Toronto should continue to be assisted by the Ministry of the Attorney General's Pro Bono Task Force. Funding from possible sources, such as The Law Foundation and MAG, should be explored. Expansion of the pilot project to other regions of the province should be considered pending an evaluation of its success, and after considering cost-effective service delivery options that are responsive to the needs of those who would otherwise be unable to access legal representation.
- The current regime governing the availability of civil juries set out in the Courts of Justice Act should be retained, except for simplified rule actions under rule 76 in which $50,000 or less is claimed. In those cases a party must obtain an order, on motion, to obtain a jury based on broad public interest grounds.
The Courts of Justice Act should be amended to permit the
court to dispense with a jury on its own motion. It should prescribe
the following test to be applied by the court when deciding whether or
not to strike a jury notice:
- Whether justice will be served better with or without a jury, after considering all relevant factors, including the facts of the case, the technical nature of the evidence, the complexity or uncertainty of the relevant law, the predominance of substantive legal issues over factual issues, the interwoven issues of fact and law, and counsels' positions;
- Whether a party would be able to obtain a fair trial before a jury;
- Whether jury service would be an unwarranted inconvenience to jurors, considering the value, nature and importance of the matters, the parties' interests in a jury trial, and the likely duration of the trial; and
- Where, in the opinion of the court, inflammatory conduct by a party or counsel or inadmissible evidence has been placed before the jury.
- The phrase "relating to any matter in issue in the action" should be replaced with "relevant to any matter in issue in the action" in all rules relating to discovery. The effect of this recommendation is to discard the "semblance of relevance" test and replace it with a simple relevance test.
- Amend rule 31 to provide that each party have up to a maximum of one day (seven hours) to examine parties adverse in interest, subject to agreement otherwise or a court order.
- As a best practice, encourage parties to voluntarily answer questions at an examination for discovery that are objected to on the basis of relevance, as permitted under rule 34.12(2). In addition, encourage the court to consider the availability of the process in rule 34.12(2) when making the appropriate cost awards on refusals motions.
The Office of the Chief Justice of the Superior Court of Justice should
consider issuing a Practice Direction that would state the court may
refuse to grant any discovery relief, or may make appropriate cost
awards on a discovery motion, where parties have failed to:
- Consider and, to the extent reasonable, apply the E-Discovery Guidelines and The Sedona Canada Principles, in particular, the requirement to meet and confer regarding the identification, preservation, collection, review and production of electronically stored information;
Develop a written discovery plan addressing the most expeditious
and cost-effective means of completing the discovery process in a
manner that is proportionate to the needs of the action, including:
- The scope of documents to be preserved as determined by both relevance and application of the principle of proportionality (in the context of the costs associated with document searches and production being balanced with the needs of the particular case);
- Dates for the exchange of sworn affidavits of documents;
- Number of experts and timing of delivery of expert reports;
- Time, cost and manner of production of documents from the parties and any third parties who may have relevant documents; and
- Names of those to be produced for oral discovery (an issue which may be relevant if a party is a corporation) and the dates and length of examinations.
- I do not recommend the mandatory use of joint experts. However, in appropriate circumstances, early in the litigation process, parties should discuss jointly retaining a single expert to reduce costs and avoid unnecessary competing expert reports, consistent with the Discovery Task Force's best practices.
- Amend rules 50.01, 76.10, 77.14, 77.15 and 78.10 to require the presiding judicial officer at pre-trials, settlement conferences and trial management conferences to consider and make orders as to the appropriate number of experts that may be called by each side and on particular issues and whether expert evidence is admissible.
Amend section 12 of the Evidence Act to:
- Make clear that a judge (or officer) presiding at pre-trial events (i.e., pre-trials, settlement conferences, trial management conferences), who may or may not be the presiding trial judge, may grant leave to call more than three experts (or fewer in simplified procedure cases). The residual discretion of the trial judge to vary a previous order on the number of experts will, I hope, be limited to situations where there has been a significant change in circumstances, or where manifest unfairness would result to a party at trial should they not be permitted to call additional experts.
List the following factors for the court to consider in exercising
its discretion on the appropriate number of experts:
- Whether the proposed number of experts is reasonably required for the fair and just resolution of the proceeding;
- Whether the proposed number of experts is consistent with the principle of keeping costs and the length of the proceeding proportionate to the amount or issues at stake;
- Any other factors relevant to the fair, just, expeditious and cost-effective resolution of the proceeding.
- Adopt a new provision (in the Rules of Civil Procedure or Evidence Act) to establish that it is the duty of an expert to assist the court on matters within his or her expertise and that this duty overrides any obligation to the person from whom he or she has received instructions or payment. Require the expert, in an expert report, to certify that he or she is aware of and understands this duty.
Permit the presiding judicial official at pre-trials, settlement
conferences and trial management conferences to order opposing experts
in appropriate cases to:
- Meet, on a without prejudice basis, to discuss one or more issues in the respective expert reports to identify, clarify and, one would hope, resolve issues on which the experts disagree and
Prepare a joint statement as to the areas of agreement, or reasons
for continued disagreement where in the opinion of the court
- there may be room for agreement on some or all issues,
- the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court or
- cost or time savings or other benefits can be achieved proportionate to the amounts at stake or the issues involved in the case.
- Amend the rules to require parties to discuss the number of experts and the timing for delivery of expert reports within 60 days of the action being set down for trial. As a default, rule 53.03 should be amended to require all expert reports to be exchanged within the 90/60/30 days before pre-trial or settlement conference, subject to the parties' agreement otherwise or court order.
Amend rule 53.03 to require all expert reports to include the following
- Expert's name, address and current curriculum vitae;
- A detailed description of the expert's qualifications and area of expertise;
- A description of the instructions provided to the expert;
- The nature of the opinion being sought and the specific issues to which the opinion relates;
- A description of research conducted by the expert to be able to reach his/her opinion;
- A description of the factual assumptions on which the opinion is based;
- The list of any documents relied upon in formulating the opinion; and
- The opinion and the basis for the opinion. Where there is a range of opinion on the matters dealt with in the report, summarize the range of opinion and give reasons for his/her own opinion.
Amend Rule 37.15 to:
- Permit the court to order that a case be subject to rule 37.15 management by an individual judge, master or case management master where it is of the opinion that the case could benefit from management by a single judicial official, after considering the criteria contained in rule 77.09.1(5). An order to make a case subject to rule 37.15 may be made by the court on its own initiative or on written request to the Regional Senior Judge of the respective judicial region where the case was commenced, copied to all other parties.
- Allow for speedy mechanisms to obtain direction and orders on procedural matters from the managing judge, master or case management master for cases that are governed by rule 37.15. These mechanisms may include a telephone or in-person case conference or a simplified process for motions to be made in writing with or without affidavits, similar to the processes in rules 76 and 77.
- In the evaluation of rule 78, consider amending rule 78.12 to make the test and process to have a case subject to rule 77 case management consistent with the recommended process and test to have a case subject to individualized management under rule 37.15.
- The Office of the Chief Justice of the Superior Court of Justice and the Ministry of the Attorney General should monitor access to case management masters for civil case managed actions in Ottawa to ensure that the complement of case management masters is sufficient to meet the civil case management needs there.
- The Windsor Case Management Steering Committee should seek input from the local bench and bar as to whether any reforms to rule 77 in Essex County ought to be made.
- The Civil Rules Committee should consider the future role of rule 77 in the province. Relevant to this investigation would be any plans to expand the operation of rule 77, an assessment of the current operation of rule 77 in Windsor and Ottawa as an effective time- and cost-savings mechanism, the evaluation of rule 78 in Toronto, and alternative case management and non-case management models that may possibly be used to replace rule 77 (e.g., the ordinary procedure, rule 78, other models).
- Any proceeding in which a party is self-represented should be managed to the extent required, either under an expanded rule 37.15 or under rules 77 and 78.
Pre-trials & Trial Management
- Amend rule 50 to prescribe the dual purpose of a pre-trial conference: to discuss settlement of some or all of the issues, and to obtain any necessary orders and directions to ensure that the action is ready for trial and that the trial proceeds in an orderly and efficient manner.
- Judges skilled in negotiation and with expertise in the relevant subject matter should, where possible, preside over pre-trial conferences.
- Parties (or those with settlement authority) should be required to attend pre-trial conferences (or be available by telephone where physical attendance is not practicable).
- Pre-trial judges should make any necessary trial management orders that promote the most efficient use of trial time and, in particular, should be vested with the authority to impose time limits on the presentation of each side's case, subject to a residual discretion in the trial judge to alter such orders where unanticipated circumstances arise or in otherwise clear cases where the overall interests of justice require that they be amended.
- Each region should adopt an administrative practice, similar to the approach used in Toronto, for scheduling pre-trials and tentative trial dates, to permit a sufficient block of time to be scheduled for pre-trials and trials and to avoid the necessity of parties having to appear in Assignment Court. Tentative trial dates should be confirmed at the pre-trial.
- Pre-trials should be scheduled within four to six months of the trial.
- The judiciary should be encouraged to use their inherent authority to better regulate the conduct of trials so that trials proceed in an orderly and efficient manner.
- Amend rule 50.04 to permit the pre-trial judge to preside at trial where the parties consent.
- The Civil Rules Committee should consider addressing bifurcation in a rule that would permit an order for bifurcation to be made on motion by any party or on the court's own initiative, after hearing from the parties. Any rule permitting bifurcation could reference some or all of the 14 factors listed in Bourne v. Saunby.
- The Law Commission of Ontario should undertake a review of the role of the Divisional Court as a court of intermediate appellate jurisdiction and make recommendations regarding the court's future role and jurisdiction. This review should consider both the judicial review and appellate jurisdiction of the Divisional Court.
- The Civil Rules Committee should consider and recommend to the Attorney General changes to the Courts of Justice Act so that only orders finally disposing of an action/application would be appealable to the Court of Appeal. Appeals from all other orders would be to the Divisional Court. The Civil Rules Committee can best determine if leave should be required and, if so, on what basis leave would be granted.
- Appeals from summary judgment orders issued under rule 20 should be to the Court of Appeal if the amount in issue is otherwise within the jurisdiction of the Court of Appeal.
- Appeals from awards through the Arbitration Act should be to the Court of Appeal if the amount involved (more than $50,000) brings the award within the monetary jurisdiction of the Court of Appeal.
Motion and Trial Scheduling
The Office of the Chief Justice of the Superior Court and the Regional
Senior Justices of each region consider options to:
- Eliminate the requirement of personal attendance at Assignment Court and replace it with a new practice for setting trial dates (e.g., vest trial coordinators with the authority to set trial dates; use of an administrative form, jointly submitted by the parties, to permit trial dates to be set; use of teleconference hearings for Assignment Court; use of the Internet for fixing tentative trial dates).
- Direct and enforce time limits on trials, to ensure greater certainty in trial duration and improved trial scheduling.
- Adopt and consistently enforce a policy with respect to adjournments.
- Establish outside time standards within which trials ought to be heard, to be considered when scheduling trials and to provide a benchmark for litigants to know when a trial date is likely to be available upon the case being set down for trial.
The Office of the Chief Justice of the Superior Court and the Regional
Senior Justices of each region consider:
- The introduction of 9:00 or 9:30 a.m. chamber hearings to deal with ex parte, scheduling, consent or other matters that need less than 10 minutes and that would otherwise appear on motion lists. The chamber hearing would be in person or by teleconference.
- The use of more specific time slots for the hearing of motions (e.g., morning and afternoon slots) to reduce wasted waiting time in court.
- Greater use of teleconferencing for short motions. Amend rules 1.08 and 37 to permit the court to schedule and hear a matter by teleconference on its own initiative, or where requested by a party.
- The Civil Rules Committee should consider changing the times for delivery of motion materials and the motion confirmation form by moving those times further back (e.g., seven and five days, respectively, before the motion is to be heard).
- An early vetting procedure for long motions be introduced in court locations with busy long-motion lists (e.g., Brampton and Newmarket) and other locations as needed. This process would help ensure that the motion will be ready to proceed and would help in allotting an appropriate block of time for the hearing. Time limits for oral argument may also be set.
- It seems to me that in a better world, plaintiffs should be able to start an action anywhere by filing the claim electronically. To the extent feasible, the claim should then electronically be moved to the venue stated in the claim.
- There should be a more streamlined way of securing a change of venue (e.g., by filing a two-page simplified motion form with or without affidavit evidence, modeled after the simplified procedure and case management rules).
- Venue change motions should be heard in writing or by telephone conference call, subject to a direction to the contrary if any oral argument is required. In clear cases, such as in the example cited above, the moving party should receive full indemnity costs payable forthwith.
- In the alternative, amend rules 37.03(1), 38.03(1), 77.01(5) and 76.05(2) to permit a party to bring a motion to change venue at any court location.
- The need for ethical behaviour is part of the curriculum in law schools now. Civility is a subset of ethical behaviour that should be emphasized in law schools where this does not now occur.
- Law firms should provide instruction to articling students that would emphasize the importance of civility. Uncivil conduct by articling students should not be tolerated.
- Judges should move to zero tolerance mode when confronted with uncivil behaviour in the courtroom. There is an array of remedies available, including moral suasion, reporting the offending counsel to the Law Society, cost orders and, in egregious circumstances, the contempt process.
- Lawyers should not be reluctant to report instances of uncivil behaviour to the Law Society. If the Law Society does not know about uncivil conduct, it can hardly be blamed for not responding to it.
Technology in the Civil Justice System
- Parties and their counsel should be encouraged to explore methods of using technology to share information electronically to achieve time and cost savings. The judiciary and courts administration should make every reasonable effort to accommodate requests for the use of technology in individual cases, where possible.
- Rules 1.08 and 37 should be amended to permit a party to propose, or the court to order on its own initiative, that any matter referred to in rule 1.08 be heard by telephone or video conference.
- A committee of nine - comprised of a member of the bench, bar and courts administration from a small, medium and large court location in Ontario - be struck to make recommendations, jointly to the Attorney General, the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario, on technological improvements that may be made at each of the three court locations. Recommendations should be detailed, taking into consideration policy, legal, cost and operational impacts. They should also include a process to evaluate any improvements implemented.
- Additional training should be provided to judges on all aspects of the use of technology in and out of the courtroom. This is a matter that is being addressed by the Judges' Technology Advisory Committee of the Canadian Judicial Council. The National Judicial Institute and the Ministry of the Attorney General should participate, where possible, in assisting with such training.
Civil Rules Committee
- The Civil Rules Committee itself should make recommendations to the Attorney General on the downsizing of the committee.
- Committee membership lists and meeting agendas should be posted on the Ontario Courts website. The Civil Rules Committee should consider whether and to what extent minutes of its meetings might also be posted on the website.
- The Civil Rules Committee, with input from the secretariat, should recommend options to the Attorney General, the Chief Justice of Ontario and the Chief Justice of the Superior Court for a strengthened secretariat mandate that is both responsive to immediate calls for rule reform and proactive in considering and analyzing potential short- and long-term civil justice reforms for Ontario.
Automobile Negligence Claims
The Superintendent of Financial Services, in conducting the next review
of Part VI of the Insurance Act and the regulations under it,
should consider the following questions:
- What has been the actual impact on loss costs and premiums of the transition from the earlier verbal threshold to the current threshold?
- If it is found that some claims were excluded by the verbal threshold that would not be excluded by the deductible, who are the claimants excluded from pursuing remedies in the civil justice system and what are their injuries? These are both important public interest considerations; and
- Should the deductible, now $30,000, applicable to some actions be increased, decreased or abandoned?
Proportionality & Cost of Litigation
- The Rules of Civil Procedure should include, as an overarching principle of interpretation, that the court and the parties must deal with a case in a manner that is proportionate to what is involved, the jurisprudential importance of the case and the complexity of the proceeding.
- Counsel should be required to prepare a litigation budget and review it with a client prior to commencing or defending any proceeding. This budget should be updated at least when examinations for discovery are completed. The Law Society of Upper Canada should also consider making this an express requirement for the profession under the Rules of Professional Conduct.
- The Civil Rules Committee should consider whether rule 57.01 should be amended to add, as a factor for the court to consider when making a cost award, the relative success of a party on one or more issues in the litigation in relation to all matters put in issue by that party. I make this recommendation not in the context of distributive cost orders (a subject on which the Court of Appeal has spoken), but rather in the context of court time which has been wasted in advancing frivolous claims or defences. It is one thing to advance claims or defences that manifestly have no merit. It is another thing to waste time doing it. Perhaps rule 57.01 (1) (e) is broad enough to capture my concern. I leave that to the Rules Committee.