Civil Justice Reform Project – Footnotes

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  1. Supplemental and Final Report of the Civil Justice Review (Toronto: Ontario Civil Justice Review, November 1996) [hereinafter, Ontario Civil Justice Review].
  2. Report of the Task Force on Systems of Civil Justice (Ottawa: Canadian Bar Association National Task force on Systems of Civil Justice, August, 1996) [hereinafter, CBA Systems of Civil Justice Report].
  3. Report of the Task Force on the Discovery Process in Ontario (Toronto: Task Force on the Discovery Process in Ontario, 2003) [hereinafter, Discovery Task Force Report].
  4. A copy of a the Advocates’ Society report arising from this policy forum, entitled Streamlining the Ontario Civil Justice System: A Policy Forum, Final Report, may be accessed online: The Advocates’ Society <http://www.advocates.ca/pdf/Final_Report.pdf> [hereinafter Advocates’ Society, Streamlining the Ontario Civil Justice System].
  5. Papers from the Canadian Forum on Civil Justice’s Into the Future Conference may be accessed online: Canadian Forum on Civil Justice <http://www.cfcj-fcjc.org/publications/itf-en.php/>.
  6. Civil Justice Reform Working Group, British Columbia Justice Review Task Force, Effective and Affordable Civil Justice: Report of the Civil Justice Reform Working Group to the Justice Review Task Force (November, 2006) online: BC Justice Review Task Force < http://www.bcjusticereview.org/working_groups/civil_justice/cjrwg_report_11_06.pdf> [hereinafter, BC Civil Justice Reform Working Group Report].
  7. Ibid. at v - vii. The three key recommendations were:
    • The creation of a central hub to provide people with information, advice, guidance and other services they require to solve their own legal problems;
    • A requirement that parties personally attend a new case planning conference before they actively engage the system beyond initiating or responding to a claim; and
    • The creation of new Supreme Court Rules, incorporating several specific rule changes recommended by the working group.
  8. See, e.g., G. Cohen, Editorial, “The time has come for civil justice reform” Law Times (17 July 2006); K. Makin, “Help lawyerless litigants, judges urged: McLachlin expresses concern about flood of people representing themselves in court” Globe & Mail (13 December 2006); T. Tyler, “Ordinary citizens, unable to secure legal aid or pay punitive legal bills fight a ‘David and Goliath’ battle as they argue their own cases in court” Toronto Star (7 March 2007); K. Makin, “Top judge sounds alarm on trial delays” Globe & Mail (9 March 2007); B. Powell, “Justice summit to audit broken system; Public asked to join lawyers and judges in Ontario Bar Association talks” Toronto Star (13 March 2007) D02; Canadian Judicial Council, “Statement of Principles on Self-represented Litigants and Accused Persons” (September 2006) online: < HYPERLINK "http://www.cjc-ccm.gc.ca/cmslib/general/Final-Statement-of-Principles-SRL.pdf" http://www.cjc-ccm.gc.ca/cmslib/general/Final-Statement-of-Principles-SRL.pdf.>
  9. Includes current vacancies, and does not include the executive of the court: the Chief Justice, the Associate Chief Justice, the Senior Family Judges and the Regional Senior Judges (11 judges in total). Based on data available as of June 2007.
  10. Ministry of the Attorney General, Court Services Division, Civil and Small Claims Court Statistics 2005-06 [unpublished] at 7 and 50, citing FRANK data. Data from the Superior Court of Justice does not include bankruptcy or uncontested estate matters [hereinafter Civil & Small Claims Court Statistics 2005-06].
  11. O. Reg 626/00.
  12. Civil and Small Claims Court Statistics 2005-06, supra note 10 at 56.
  13. Provincial Court Act, R.S.A. 2000, c. P-31, s. 9.6(1).
  14. Ontario Civil Justice Review, supra note 1.
  15. CBA Systems of Civil Justice Report, supra note 2
  16. Ibid. at 41.
  17. Civil & Small Claims Court Statistics 2005-06, supra note 10.
  18. Civil & Small Claims Court Statistics 2005-06, supra note 10. In 2005-06, approximately 14,179 new simplified procedure cases were commenced, but only 2,026 simplified procedure cases were added to the trial list that year (or 14%). Accordingly, it would appear that about 85% settle before being set down for trial, and many more likely settle before trial.
  19. See, e.g., Alberta Rules of Court, Alta. Reg. 390/1968, r. 664 [hereinafter Alberta Rules]; New Brunswick Rules of Court, Regulation 82-73, r. 79.10 [hereinafter New Brunswick Rules]; Prince Edward Island Rules of Civil Procedure, r. 75.1.11 [hereinafter PEI Rules]; Saskatchewan Queen’s Bench Practice Directive No. 8; Federal Court Rules S.O.R. 96/106, r. 299(1) [hereinafter Federal Rules].
  20. Manitoba Court of Queen’s Bench Rules, Reg. 553/88, r. 20A(16)(e), (i) [hereinafter Manitoba Rules].
  21. Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 76.10(6) [hereinafter Ontario Rules].
  22. Civil and Small Claims Court Statistics 2005-06, supra note 10 at 37.
  23. Alberta Rules, r. 671.
  24. In 2005-06, summary judgment motions were commenced in only 642 of Ontario’s 63,251 Superior Court civil cases (1%).
  25. Doncaster Pharmaceuticals Group Ltd and others v Bolton Pharmaceutical Co 100 Ltd. [2006] EWCA Civ 661 at para. 5.
  26. Ontario Rules, r. 20.06(1).
  27. Ontario Rules, r. 20.06(2).
  28. New Brunswick Rules, r. 22.06(1); PEI Rules, r. 20.06(1); Rules of the Supreme Court of the Northwest Territories, Regulation 010-96, r. 180(1) [hereinafter NWT Rules].
  29. The Advocates’ Society, Streamlining the Ontario Civil Justice System: A Policy Forum, Final Report, (The Advocates’ Society: March 2006) at 9, online: The Advocates’ Society <http://www.advocates.ca/pdf/Final_Report.pdf>.
  30. B.C. Supreme Court Rules, B.C. Reg. 221/90, r. 18A(11) [hereinafter, BC Rules].
  31. BC Rules, rule 18A(10).
  32. BC Rules, rule 18A(13).
  33. BC Rules, rule 18A(8).
  34. Vancouver Bar Association, The Advocate (Volume 61, Part 2 (March 2003)) at 169-170.
  35. Alberta Law Reform Institute, “Alberta Rules of Court Project - Summary Disposition of Actions,” Consultation Memorandum 12.12, August 2004, Edmonton, Alberta, at 63.
  36. See comments of Madam Justice Koenigsberg, referenced in the Advocates’ Society, Final Report: Streamlining the Ontario Civil Justice System (Toronto) pg. 6.
  37. Alberta Rules, r. 158.
  38. PEI Rules, r. 75.1.11; Saskatchewan Queens’ Bench Rules, Part 40 [hereinafter Saskatchewan Rules].
  39. Manitoba Rules, r. 20.03(4).
  40. R.S.O. 1990, c. S.15, s. 28.1.
  41. Kirsten McMahon, “The Going Rate 2005” Canadian Lawyer (June 2005) at 25.
  42. John Malcolmson, Gayla Reid, BC Supreme Court Self-Help Information Centre Final Evaluation Report (Law Courts Education Society of BC: August 2006) [unpublished] at 8, online: < http://www.lawcourtsed.ca/documents/Research/SHC_Final_Evaluation_Sept2006.pdf>.
  43. Note that a “trial heard” represents a day when a trial is being heard. Also, many trials that have commenced, may settle. Therefore, this figure does not represent the total number of trials that were commenced or trials that were commenced and completed. See Civil & Small Claims Court Statistics 2005-06, supra note 10 at 47.
  44. Discovery Task Force Report, supra note 3.
  45. See, e.g., Kay v. Posluns (1989), 71 O.R. (2nd ) 238 (H.C.). Interestingly, the broad “semblance of relevance” test appears to have originated from the British Peruvian Guano case, where the court rules that one must disclose every document that contains information that may, directly or indirectly, enable a party to advance his or her own case or to damage the opposing party’s case. This includes documents that may fairly lead to a train of inquiry that would advance a party’s own case or damage the case of the opposing party. See The Compagnie Financière et Commerciale du Pacifique v. Peruvian Guano (1882), 11 Q.B.D. 55 (C.A.) at 63. However, the Peruvian Guano approach in England and Wales has been replaced with a more restrictive test for the disclosure of documents: See UK Civil Procedure Rules, r. 31.6.
  46. Discovery Task Force Report, supra note 3 at 92.
  47. Ibid. at 57.
  48. Found in Task Force on the Discovery Process in Ontario, Supplemental Report (Toronto: Task Force on the Discovery Process in Ontario, 2005), accessible online at: Ontario Bar Association Discovery Task Force E-Discovery Guidelines and Resource Page <http://www.oba.org/en/main/ediscovery_en/default.aspx>.
  49. The Sedona Conference®, The Sedona Canada Principles: Addressing Electronic Document Production (February 2007 Public Comment Draft), online at: The Sedona Conference, HYPERLINK "http://www.thesedonaconference.org/dltForm?did=2_07WG7pubcomment.pdf" http://www.thesedonaconference.org/dltForm?did=2_07WG7pubcomment.pdf.
  50. Advocates’ Society, Streamlining the Ontario Civil Justice System, supra note 4 at 13 – 14.
  51. Rt. Honourable Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales (Department of Constitutional Affairs, UK: July 1996) online: Department of Constitutional Affairs <http://www.dca.gov.uk/civil/final/index.htm>. See recommendations 156- 173 dealing with expert evidence.
  52. Civil Procedure Rules, SI 1998 No. 3132 (as amended), r. 35.3 [hereinafter UK Rules].
  53. UK Rules, r. 35.10.
  54. UK Rules, r. 35.1.
  55. UK Rules, r. 35.4.
  56. UK rules, r. 35.7.
  57. UK rules, r. 35.8.
  58. UK rules, r. 35.12.
  59. Queensland, Australia, Uniform Civil Procedure Amendment Rule (No. 1) 2004, section 7, Part 5 – Expert Evidence, online: Queensland Legislation <http://www.legislation.qld.gov.au/LEGISLTN/SLS/2004/04SL115.pdf>.
  60. Alberta Law Reform Institute, Expert Evidence and “independent” Medical Examinations (Consultation Memorandum No. 12.3) (Edmonton: ALRI, 2003) at 23.
  61. Robert Musgrove, Lord Woolf's Reforms of Civil Justice: The Reforms, their Impact, and the future for civil justice reform in England and Wales, Address to Advocates’ Society Policy Forum (Toronto: March 9, 2006).
  62. U.K., Department of Constitutional Affairs, Emerging Findings: An Early Evaluation of the Civil Justice Reforms (March 2001), http://www.dca.gov.uk/civil/emerge/emerge.htm, at paras 4.21 – 4.26.
  63. P. Wardle and D. Cappe, “Reforming Ontario’s Expert Evidence Rules” [unpublished] at 13, citing Brian Thompson, The Problem with single joint experts (2004) N.L.J. 154.7138.
  64. BC Civil Justice Reform Working Group Report, supra note 6 at 31.
  65. BC Civil Justice Reform Working Group Report, supra note 6 at 14.
  66. Task Force on the Discovery Process in Ontario, Supplemental Report of the Task Force on the Discovery Process in Ontario (October, 2005) at 16.
  67. Manitoba Evidence Act, CCSM c. E150, s. 25; New Brunswick Evidence Act, RSNB 1973, c. E-11, s. 23
  68. Alberta Rules, r. 218.4(1)
  69. Saskatchewan Evidence Act, c. S-16, s. 48
  70. Quebec Code of Civil Procedure, RSQ c. C-25 [hereinafter Quebec Rules]; Newfoundland Rules of Supreme Court 1986, SNF 1986, c. 42, Sch. D [hereinafter Newfoundland Rules]; British Columbia Evidence Act, RSBC 1996, C. 124
  71. Nova Scotia Civil Procedure Rules, E. 1/1, r. 31.06 [hereinafter Nova Scotia Rules].
  72. O. Reg. 461/96, s. 4.3.
  73. BC Civil Justice Reform Working Group Report, supra note 6 at 32.
  74. UK Rules, r. 35.4.
  75. UK Rules, r. 35.1.
  76. Task Force on the Discovery Process in Ontario, Supplemental Report of the Task Force on the Discovery Process in Ontario (October, 2005) at 16.
  77. U.K. Rules, r. 35.12.
  78. Australia Federal Court Rules, (Statutory Rules 1979 No. 140) r. 34A(3)
  79. Alberta Rules, r. 218.9(1). In very long trial matters, a case management judge may order experts to “consult on a without prejudice basis to determine any matters on which agreement can be reached.”
  80. New Brunswick Rules, r. 50.09(g).
  81. BC Civil Justice Reform Working Group Report, supra note 6 at 32.
  82. Ontario Rules, r. 53.03(1).
  83. Ontario Rules, r. 53.03(2).
  84. CBA Systems of Civil Justice Report, supra note 2 at 44.
  85. Discovery Task Force Report, supra note 3 at 128-131.
  86. Queensland, Australia, Uniform Civil Procedure Amendment Rule (No. 1) 2004, section 7, Part 5 – Expert Evidence, Division 2, online: Queensland Legislation <http://www.legislation.qld.gov.au/LEGISLTN/SLS/2004/04SL115.pdf>.
  87. BC Civil Justice Reform Working Group Report, supra note 6 at 10.
  88. Discovery Task Force Report, supra note 3 at 83.
  89. Practice Direction issued by Chief Justice Heather J. Smith, Superior Court of Justice of Ontario, dated August 26, 2005, online at Ontario Courts, < http://www.ontariocourts.on.ca/superior_court_justice/notices/august2005.htm>.
  90. Essex Civil Case Management Rules, R.R.O. 1990, Reg. 189 (revoked on December 31, 2002).
  91. Advocates’ Society, Streamlining the Ontario Civil Justice System, supra note 4 at 18.
  92. 2003 CanLII 37346 (ON C.A.), para 40.
  93. Ontario Rules, r. 52.03.
  94. Ontario rules, r. 52.07(1).
  95. Ontario rules, r. 53.01(2).
  96. Elcano Acceptance Ltd. et al. v. Richmond, Richmond, Stambler & Mills, (1986), 55 O.R. (2d) 56 (C.A.).
  97. Bourne v. Saunby (1993), 38 O.R. (3d) 555 (Gen. Div.). Factors to be considered when determining whether to bifurcate a proceeding, based on Bourne v. Saunby are:
    1. are the issues to be tried simple;
    2. are the issues of liability clearly separate from the issues of damages;
    3. is the factual structure upon which the action is based so extraordinary and exceptional that there is good reason to depart from normal practice requiring that liability and damages be tried together;
    4. does the issue of causation touch equally upon the issues of liability and damages;
    5. will the trial judge be better able to deal with the issues of the injuries of the plaintiff and his financial losses by reason of having first assessed the credibility of the plaintiff during the trial of the issue of damages;
    6. can a better appreciation of the nature and extent of injuries and consequential damage to the plaintiff be more easily reached by trying the issues together;
    7. are the issues of liability and damages so inextricably bound together that they ought not to be severed;
    8. if the issues of liability and damages are severed, are facilities in place which will permit these two separate issues to be tried expeditiously before one court or before two separate courts, as the case may be;
    9. is there a clear advantage to all parties to have liability tried first;
    10. will there be a substantial saving of costs;
    11. is it certain that the splitting of the case will save time, or will it lead to unnecessary delay;
    12. has there been an agreement by the parties to the action on the quantum of damages;
    13. if a split be ordered, will the result of the trial on liability cause other plaintiffs in companion actions, based on the same facts, to withdraw or settle; and
    14. is it likely that the trials on liability will put an end to the action.
  98. Duffy v. Gillespie (1997), 36 O.R. (3d) 443 (Div. Ct.).
  99. The Canadian Bar Association, Code of Professional Conduct, Principles of Civility for Advocates at p 129, online at: Canadian Bar Association < HYPERLINK "http://www.cba.org/CBA/activities/pdf/codeofconduct06.pdf" http://www.cba.org/CBA/activities/pdf/codeofconduct06.pdf>.
  100. The Advocates’ Society, Principles of Civility for Advocates online at: The Advocates’ Society < HYPERLINK "http://www.advocates.ca/civility/principles.html" http://www.advocates.ca/civility/principles.html>.
  101. LawPro, A Special Report: Litigation Tidal Wave, Your Liability for Costs, Part 4 of 6, online at: LawPro, <http://www.lawpro.ca/News/archive_sections/Special_Report4.asp>.
  102. Ontario Rules, r. 1.08(2) and (3). Note that events in rule 77 case managed actions may also be heard by telephone or video conference, see, e.g., R. 77.12 (2.1).
  103. Chief Justice Donald Brenner, Practice Direction re: Electronic Evidence (The Supreme Court of British Columbia, July 1, 2006), online at: British Columbia Courts Website, < http://www.courts.gov.bc.ca/sc/practice%20directions%20and%20notices/Civil/Practice%20Direction%20-%20Electronic%20Evidence%20-%20July%201,%202006.pdf>.
  104. Civil & Small Claims Court Statistics 2005-06, supra note 10 at 10. Of the 62,251 cases commenced in 2005-06, 13,196 were motor vehicle cases (21%), followed by 11,399 collection of liquidated debt cases (18%), and 8,585 mortgage cases (14%).
  105. Insurance Act, RSO 1990, c. I.8, s. 267.5(7); O. Reg 461/96, s. 5.1, as amended by O. Reg. 312/03 and 381/03.
  106. O. Reg. 381/03 amended O. Reg. 461/96.