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The judiciary has exclusive authority over the scheduling of matters heard before the court. This section identifies, for consideration by the judiciary, some of the problems and possible reform options that were identified with respect to trial and motion scheduling. Two principal issues were highlighted in the course of this Review:
Trial scheduling has often been said to be an art, rather than a science. Judges and trial coordinators go to some length to balance numerous and unpredictable factors when scheduling trials to optimize the use of judicial and courtroom resources. Their efforts are to be commended. Yet the potential for further improvements to trial scheduling should be considered to reduce costs to litigants and improve access to the justice system.
Delays in scheduling trials were noted in many, but not all, regions. The most egregious delay was in Brampton, when as of November 2006 trial dates were not being fixed until 2010. This is unacceptable by any reasonable standard of measurement. The appointment of additional judges, as recommended elsewhere, is essential. It should also be noted that when earlier trial dates become available, for example because of settlements, the lawyers' schedules frequently make it impossible to take advantage of the opening.
During consultations, many recommended the elimination of Assignment Courts. Attendance at Assignment Court was said to be a waste of counsel's time that unnecessarily adds to the cost of litigation. It was also said to be a waste of the judge's time, since trial scheduling is primarily an administrative task that can be performed by trial coordinators.
From my experience, I agree with these comments. I recall Assignment Courts to be little more than a cattle call of lawyers, for which the appearance of counsel added nothing except costs to their clients. The judiciary should consider other methods of setting trial dates.
One option is to vest trial coordinators with sufficient authority to fix trial dates, with judicial oversight and direction called upon as needed. Parties could be required to jointly submit a form to the trial coordinator to confirm that a case is ready to proceed to trial and estimate trial duration, permitting a tentative trial date to be scheduled. A judge could subsequently confirm the actual trial date administratively or at the pre-trial conference. This is similar to the process currently used in Toronto region, where Assignment Court has been eliminated. A further option is to convene Assignment Court by way of teleconference, given that appearances are usually brief.
During consultations, lawyers complained of cases being repeatedly bumped from running lists because previously scheduled trials took longer than expected or because judges were otherwise unavailable. In the section on Pre-Trials and Trial Management, I recommend that pre-trial judges fix time limits on trials. If this were implemented, the length of trials, although inherently uncertain, would be more predictable with the result that scheduled trials would proceed on the date set.
Several groups strongly encouraged the adoption of fixed trial dates. Fixed trial dates, while preferred by lawyers and parties because they provide more trial date certainty, are effective only if there is a sufficient supply of judges and courtrooms so the trial can commence on the date promised. The success of fixed trial dates is entirely dependent upon the ability to accurately predict the number of cases that will proceed on a given date. Given the reality of a limited pool of judicial resources and the inherent and significant challenges faced by trial schedulers trying to maximize those resources, it may be difficult to move to a fixed trial date system at this time. Nonetheless, the goal must be to provide counsel and the parties with fixed, certain trial commencement dates.
Adjournments were also identified as a problem, given the havoc they create for judicial and court calendars. If fixed trial dates, or something close to it, is provided, adjournments should be much more difficult to obtain than they are now, even on consent. The notion of one free adjournment should be discarded.
The judiciary on its own may also wish to establish a standard or benchmark within which trials will be heard that would become a factor when setting regional calendars and trial dates. Such a standard would reflect the court's views on how long parties ought to wait to have a trial heard. Of course, given the challenges inherent in trial scheduling and changes to available judicial resources, any standard adopted would not be met in all cases. However, it would inform scheduling practices, promote earlier trial dates and provide some assurance to lawyers and litigants that trial dates will be available within a reasonable time of the case being ready for trial.
Delays in hearing motions varied among the regions, ranging from a few weeks to three months for short motions (i.e., one hour or less) and three to four months for longer motions.
In Ottawa, the delay in having motions heard was said by the bar to be growing, with short motions before a judge taking about six weeks to be heard, and long motions (one to two hours) about three months to be heard. Very long motions (more than two hours) were heard within six months, which was said to be the amount of time needed in order to permit counsel to exchange motion records, conduct cross-examinations and deliver factums. Short motions before masters were about two months out, and long motions before masters were about four months out.
In the Central East region – and in particular in Whitby, Newmarket and Barrie – the volume of civil motions was said to be on the increase. In Newmarket, long motions (over two hours) are heard at the next civil trial sitting and, as of June 14, 2007, the next civil sitting (October 8-26) was four months away.
In locations where there was no apparent delay, often the list was open-ended and overbooked so short motions scheduled to be heard could not be reached. This was reported to be a problem in Newmarket and Brampton, where additional judges were not always available to hear motions that were not reached.
In Toronto, the wait time to have a motion heard has decreased. Short motions (under two hours) before a judge are now heard within two to three months (down from three to four months), and long motions were generally heard within four months (down from five to six months). A five-minute appearance at the aptly named triage court is required in order to schedule a long motion. Motions to be heard by a master are heard within two to three weeks. These wait times were seen to be acceptable, except for matters of manifest urgency where scheduling problems were sometimes encountered.
The appointment of additional judges, particularly in those court locations experiencing significant delays in having long motions heard, can be expected to have the most significant and direct impact on improving access to the civil justice system. Until such time, the judiciary may wish to consider other improvements to motion scheduling to reduce cost and delay.
For example, to reduce the volume of short motions, very short motions might be heard at 9:30 a.m. chamber hearings, as done in the Commercial List and the 9:00 a.m. triage court. I understand some judges in other regions offer similar brief hearing times. Brief ex parte, scheduling, consent or other matters that need less than 10 minutes might be heard during this period, freeing up time on the ordinary short-motion list. This may help reduce the frequency of matters getting bumped off the short-motion list. To help further reduce the cost of such motions, these matters should be heard by teleconference (see the teleconference recommendations in the Technology section).
Having lawyers wait in court all day to argue a motion, however long the motion will be, is unacceptable on cost grounds. If motions were scheduled during fixed time slots, or even for the morning or afternoon court session, there would be a significant savings in cost to litigants. Many suggested that more motions be heard by teleconference so that time is not wasted attending court, especially for matters where clients usually do not attend. In Toronto, telephone case conferences under rule 77 case management were said to be an effective and efficient manner of resolving procedural matters in an action. Otherwise parties must bring a motion and typically appear in order to get the relief requested. It was also suggested that the judiciary move toward an individualized calendaring system so that the same judge would hear all substantive motions in a case.
A unique problem was also identified in Toronto. Short motions are booked through the motions scheduling unit, without any material being filed in advance. This is done so that time estimates can be considered at the time of booking and to prevent short-motion lists from becoming overbooked. However, this practice has resulted in the problem of “phantom motions” being scheduled. It is only at 2 p.m. two days before the motion is to be heard, when no confirmation form or other material is filed, that the court realizes that a scheduled motion will not be proceeding. I was advised that this is a regular occurrence, with three to four motions being scheduled per day without any material filed, resulting in considerable wasted time.
Timing of delivery of motion material and the motion confirmation form might also be reconsidered as a tool to improve motion scheduling. Under the rules, a moving party's motion material must be filed three days before the motion date, responding motion material filed two days before, and the confirmation form which includes the time estimate for the motion must be filed at 2 p.m. two days before. As a result, the list of motions scheduled to proceed cannot be finalized until two days before the motion is to be heard. This is too late to deal with an overbooked list. These time periods should be changed so that parties may be contacted to attend on another date in the event of an overbooked list. Moving these time periods back may also assist with the problem of “phantom motions” in Toronto. For example, if parties file material seven days in advance of the proposed motion date, and the motion confirmation form is due five days before the motion, this would provide the motions clerk time to re-schedule matters on overbooked lists or to fill lists that are underbooked due to phantom motions.
I see no reason why time limits for oral argument in long motions should not be imposed. This requires an early vetting of the motion. This procedure has proved to be effective in the Court of Appeal, where time limits are set for oral argument in all appeals. The vetting in the Court of Appeal is done by staff lawyers. There is a process in place for the staff lawyer's time allocation to be reviewed by a judge. This system has worked. It has helped eliminate the Court of Appeal's backlog. Most (including me) think time limits improved the quality of advocacy by making arguments more focused. In addition, the time allocation system, since it applies to all appeals, has made it easier to enforce time limits where a party is self-represented.
In Ottawa and Toronto (triage court), a case management master or a judge already vets motions estimated to be over two hours, to determine a timetable to ensure the motion is ready to proceed and to assign a date for the hearing of the motion. This procedure might be adopted in other regions with delays in hearing long motions (e.g., Brampton and Newmarket). It may involve a judge, master or possibly a staff lawyer (as in the Court of Appeal) reviewing a draft notice of motion or a one-page summary of the evidence and issues to be determined, and assigning time limits for oral argument. A 9:00 or 9:30 a.m. appointment, if adopted in the region, might be used for the purpose of developing a timetable for long motions and assigning time limits for oral argument.