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Pre-trials represent an important step in the litigation process. They encourage settlement and may assist in identifying or narrowing the actual issues for trial. Through the pre-trial process, trial management orders and directions may be obtained so that the trial will proceed more efficiently. To achieve these objectives, all pre-trials must be meaningful events. Otherwise, they will be an unnecessary expense for litigants and a waste of limited judicial resources.
During consultations, many said that pre-trial conferences are often ineffective and in need of reform. The bar consistently reported that the effectiveness of pre-trials is dependent on the skills of the pre-trial judge. All concerned recognize that some judges are more skilled negotiators than others. Some, in making orders and directions for trial, are more activist than others. Some require parties to attend the pre-trial conference; others do not. Some will meet with parties who do attend; others will not speak to the parties under any circumstances. To my surprise, I learned that pre-trials are mandatory in some court locations, but available only upon request in others.
Pre-trials should, in my view, be held in all actions set down for trial. I also believe the pre-trial would generally be more effective if the parties attended and if the pre-trial judge spoke to them at some point in the process, as determined by the pre-trial judge with advice of counsel. I think that counsel will be able to identify those rare cases where involving the parties would be counter-productive. Parties should hear what the judge has to say about the case, in most circumstances. This will encourage a more reasonable approach to settlement. Where insurers are involved, it may not be practicable for an adjuster/claims manager to be present. If that is the case, defence counsel should ensure that someone with settlement authority is available by telephone. For longer pre-trials it seems to me that a representative of the insurer should attend.
Where settlement is not achieved, I think that pre-trial judges should be more aggressive in setting out timetables for any remaining steps needed to get the action ready for trial. Judges should also make whatever orders are reasonably necessary to identify and narrow the trial issues and promote the most efficient use of trial time. This would include dealing with motions for leave to call more than three experts and issuing orders on the number of witnesses each side plans to call and how long each side will have to present its case.
During consultations, lawyers generally agreed that orders as to how long each side will have to present their case ought to be made at the pre-trial conference. The use of time limits for oral argument in the Court of Appeal has proven to be effective. It has improved the quality of advocacy and has been well received by the court. It has also been a significant factor in eliminating the court's backlog. As well, it is a feature of court business in several U.S. jurisdictions. I see no reason why trials should not be subject to scheduling orders. The scope of the time limit orders should include:
I recognize that there are inherent uncertainties with trials that can make it difficult to fix time limits. Witnesses may take longer to testify than expected, the time needed for cross-examination is difficult to estimate and answers may have to be clarified during re-examinations. Accordingly, the trial judge must have discretion to alter any time limits imposed. However, if time limits ordered at the pre-trial are to be meaningful, trial judges should not too easily interfere with them. I would suggest that the trial judge should alter such orders only where unanticipated circumstances arise or in otherwise clear cases where the overall interests of justice require that they be amended.
The timing of the pre-trial conference was said to be important. If there is a long delay between the pre-trial and the trial, the pre-trial is less likely to be effective. As well, enough time must be made available for the pre-trial if it is to be effective for purposes of settlement and general trial management. In certain locations, pre-trials are scheduled for only 30 minutes, which was said to be insufficient for meaningful settlement or trial management discussions in most cases.
In most regions, pre-trials are scheduled at Assignment Court. In the section on Motion and Trial Scheduling, I find Assignment Court to be an inefficient use of judges' and counsels' time, which unnecessarily adds to the cost of litigation. An alternative administrative practice is therefore needed so that the court knows how much time counsel think will be required for an effective pre-trial and when it should be scheduled.
Although I have some reservations on the timing of pre-trials in Toronto, Assignment Court has been replaced in that region with a new process for scheduling pre-trials and trials that has much to commend it. Once the trial record is filed, the trial coordinator sends a Certification Form to Set Pre-Trial and Trial Dates to the parties. Each party must complete the form (either jointly or separately) and return it. The purpose of the form is to allow the trial coordinator to fix a date for the pre-trial and a tentative trial date, which is confirmed at the pre-trial conference. The form is not complicated. It asks for information on a variety of issues, including:
Parties are then advised of the pre-trial date and the tentative trial date, which is confirmed at the pre-trial.
In my view, each region should consider adopting a similar administrative practice for scheduling pre-trials and tentative trial dates. The Toronto scheduling practice permits a sufficient block of time to be scheduled for pre-trials, based on input from counsel, and avoids the necessity of parties having to appear in Assignment Court. Tentative trial dates should be confirmed at the pre-trial. Beyond that, I would leave it to each region to determine the pre-trial and trial scheduling practice that works best there.
I think that pre-trials will be more effective if they are scheduled within the four to six months before trial in all regions. Also, as noted in the section on Expert Evidence, any expert reports filed by the time of pre-trial may become outdated by the time of trial if the pre-trial is scheduled too far out from the trial.
In particularly complex cases, where settlement or trial management discussions have not concluded, an informal process ought to be available to permit parties to return before the original pre-trial judge for a second pre-trial. While unnecessary in most cases, a second pre-trial will likely be of assistance when requested by counsel or ordered by the court. An informal administrative practice should be adopted in each region to permit parties to request a second pre-trial conference, preferably before the original pre-trial judge, to deal with any last-minute or outstanding settlement or trial management issues.
At the Advocates' Society Policy Forum in March 2006, there was widespread consensus that all too frequently trials greatly exceed their estimated length. It was noted that this is often the result of poor trial management by both the bench and the bar and that greater discipline is required. Accordingly, considerable support was expressed for having the judiciary exercise more aggressive trial management before and during the trial. 91
In the Court of Appeal's decision in R. v. Felderhoff, Justice Rosenberg commented on the important trial management function that trial judges ought to exercise. Relying on the court's inherent jurisdiction to control its own process, he said, “[I]t would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner.” 92
Although Felderhoff was a criminal trial, in my view Rosenberg J.A.'s reasons apply with equal force, or more, to civil proceedings. No rule amendments are required for a trial judge to make orders during the trial to control its duration, or to control the conduct of counsel that unnecessarily prolongs or unduly complicates the trial. In addition, rules 52 and 53 give judges certain express powers to control the manner in which a trial unfolds, including the appointment of an expert, 93 the order of presentation during a jury trial 94 and the power to disallow questions of a witness that are vexatious or irrelevant. 95
Efficiencies at trial may also be achieved by having the pre-trial judge preside at the trial. Pre-trial judges often become familiar with the facts and issues in a case, and time would be wasted having to get a new trial judge up to speed, particularly in complex cases. The pre-trial judge may have expertise in a given area of law that may assist in the resolution of the case. Continuity by the same judicial official can also help ensure that trial management orders made at the pre-trial are fulfilled and that the trial proceeds as planned. However, under rule 50.04, a judge who conducts the pre-trial conference shall not preside at trial.
I recognize that this rule is intended to protect settlement discussions at pre-trial. In complex cases, it may be advisable to separate the settlement and trial management parts of the pre-trial so that a pre-trial judge dealing with trial management issues may serve as trial judge. In any event, I recommend that rule 50.04 be amended to permit the pre-trial judge to serve as trial judge, where the parties consent. Virtually all those consulted saw no impediment to the trial judge dealing with motions and trial management issues, similar to what arbitrators do in arbitration proceedings. Having the trial judge involved earlier in long complex cases will, in my view, enhance the efficiency of the process.
One trial management issue – bifurcation – requires separate comments. The power to order issues in an action to be split into two or more trials is not expressly conferred by statute or the Rules of Civil Procedure. The power to order bifurcated proceedings appears to exist as part of the inherent jurisdiction of the court. In the leading case, the Court of Appeal held that it is a “basic right” of a litigant to have all issues in dispute resolved in one trial and that bifurcation must therefore be regarded as “a narrowly circumscribed power.” 96 In a later case, Bourne v. Saunby, the Ontario Court (General Division) listed fourteen criteria that the court should consider when evaluating the merits of a motion to sever liability from damages. 97 The catalogue of factors set out in Bourne, though not an exhaustive list, is generally taken into account in determining whether bifurcation should be allowed. A decision of the Divisional Court suggests that a party's inability to fund the litigation is an “extraneous” factor that should not be considered when deciding whether to bifurcate a trial. 98
While I view bifurcation to be the exception, cost considerations militate in favour of bifurcation in some cases. In commercial litigation, for example, when dealing with damages will expose a party and sometimes all parties to significant costs, it may make sense to separate the issues of liability and damages and deal with liability first. Upon the determination of one issue, parties may be inclined to settle the balance of the issues in dispute. This can result in a significant savings of time, money and judicial resources. It would also be of particular benefit to those litigants who cannot afford a trial of all issues. There is no doubt that bifurcation can delay the final resolution of the entire proceeding and, where issues overlap, evidence and testimony may need to be repeated. Where these concerns apply, a bifurcation order should not be made.
The Civil Rules Committee should consider prescribing, at least in general terms, when it is open to the court to make a bifurcation order. In the end, the court's discretion in making bifurcation orders should be expanded while recognizing that bifurcation remains the exception, not the rule.