Civil Case Management and Mandatory Mediation provide early opportunities to settle lawsuits.

Description

Rule 77 of the Rules of Civil Procedure establishes civil case management in Ontario. The purpose of case management is to reduce unnecessary delay and cost, facilitate early and fair settlements, and bring cases promptly to a just determination - while allowing enough time for the conduct of the proceedings.

Under case management, the pace of litigation is guided by time frames for specific events, with flexibility to meet the circumstances of each case and reflect the needs of the litigants. The process provides opportunities for the parties to settle, narrow or consolidate issues in order to streamline proceedings and focus trial resources where they are most needed. It also involves the early and active intervention by the court to promote the resolution of disputes or to bring cases to trial in a timely manner.

Overview of Rule 77

Rule 77 applies to all civil actions and applications commenced in Toronto, Ottawa and, as of December 31, 2002, Windsor. The Rule sets out the powers and jurisdiction of case management judges and masters to preside over case conferences, settlement conferences and trial management conferences, to hear motions, to extend or abridge time requirements, and to make orders, impose terms and give directions as necessary.

Cases Not Subject to Rule 77

Rule 77 does not apply to family law actions, class proceedings, estates, bankruptcy and insolvency proceedings, mortgage actions (Rule 64), construction lien proceedings (except trust claims), Toronto Commercial List matters, or simplified rules (Rule 76) proceedings.

Mandatory Mediation

All case-managed actions are subject to mandatory mediation under Rule 24.1. Cases are referred to mediation early in the process, giving parties an opportunity to discuss the issues in dispute. The parties, with the assistance of a trained mediator, explore settlement options and may be able to avoid the trial process.

Standard or Fast Track

The Rule requires that cases be streamed on either the 'fast track' or the 'standard track'. The plaintiff is required to choose the track on the Information for Court Use Form (Form 14F) when commencing the action or application.

The standard track is designed for cases that raise complex issues of fact or law, while the fast track is designed for cases that are less complex and involve a small number of parties. A case management judge or master may order that a proceeding be transferred from one track to the other.

Timelines

Timelines for the completion of key events are as follows:

Mediation: Parties must attend a mandatory mediation session (unless exempted by court order) within 90 days of the filing of the first defence. For standard track cases, parties may agree to postpone the mediation session for up to an additional 60 days.

Litigation Timetable (Toronto/Windsor): The plaintiff in an action must file a timetable or request a case conference to establish a timetable within 30 days of an order for exemption from mediation, or where a case proceeds to mediation but does not settle, within 30 days of receiving the mediator's report.

For applications, the applicant must file a timetable or request a case conference to establish a timetable within 180 days after the proceeding commenced.

If a party fails to comply with a timetable, the case management judge or case management master may dismiss the proceeding, strike out the defence, amend the timetable, order the party to pay costs, or make any other order that is just.

Settlement Conference: Parties must attend a settlement conference within 150 days of the filing of the first defence for fast track cases, and within 240 days for standard track cases.

Dismissal for Delay: The registrar will make an order dismissing the proceeding as abandoned if, after 180 days from the date the proceeding commenced, no defence has been filed and the proceeding has not been disposed of by final order or judgment.

Conferences

Under Rule 77, judicial intervention is accomplished by means of conferences with the parties. Conferences are flexible tools available throughout a proceeding to assist parties to narrow, consolidate or resolve issues, or move the case forward. There are three types of conferences:

A case conference may be requested by counsel or convened at any time by a case management judge or a case management master. The purpose of a case conference is to explore methods of resolving contested issues, secure the parties' agreement on a schedule of events, and create or amend case timetables.

Motions, which must be made before a case management judge or case management master, may be heard at a case conference. Case conferences may be held in person, by conference call or in writing.

The purpose of a settlement conference is to settle the case or narrow contentious issues in the case. A case management judge or case management master facilitates a discussion of the issues and reviews the strengths and weaknesses of each party's case. Before the settlement conference is held, parties are required to complete all examinations, produce all of the required documents and complete any related motions.

A trial management conference is held in order to explore ways to make more efficient use of trial time. The court or the parties may request that a trial management conference be held prior to trial to consider ways to streamline the presentation of evidence, finalize the list of witnesses and facilitate the orderly and expeditious conduct of the trial.

Rule 77: A Step-by-Step Guide

Step 1 - Commencement of proceeding

• The plaintiff issues a Notice of Action, Statement of Claim or Notice of Application, files an Information for Court Use Form (Form 14F), and serves both on the other parties.
• On filing, the plaintiff chooses the fast or standard track for the proceeding. A case management judge (CM judge) or case management master (CM master) may order that a proceeding be transferred from one track to another.
• When a defence is filed, the proceeding is assigned to a CM judge or team.
• If no defence has been filed and the plaintiff has not obtained a final order or judgment within 180 days of commencement, the registrar dismisses the proceeding.

Step 2 - Mediation

• All case managed actions are subject to mandatory mediation under Rule 24.1. Mediation must take place within 90 days after the first defence is filed in fast track actions, unless the parties obtain a court order extending the time. In standard track actions, parties may consent to a postponement of up to 60 days.
• Parties may opt out of mediation only by obtaining a court order exempting them.
• Parties may select a mediator from the Ministry's mediator roster or one who is not on the roster. Within 30 days after the first defence is filed, the plaintiff must file a notice (Form 24.1A) stating the mediator's name and date of the mediation, or a mediator will be assigned by the local mediation coordinator.
• At least 7 days before the mediation, each party provides a statement of issues (Form 24.1C) to the other parties and the mediator.
• All parties and (if represented) their lawyers must attend the mediation.
• If any party fails to submit a Statement of Issues or attend the mediation, the mediator may cancel the mediation and file a Certificate of Non-Compliance. The local mediation coordinator will refer the matter to a CM judge or CM master who may convene a case conference. The party responsible for the cancellation will be required to pay any cancellation fees charged by the mediator and may be subject to sanctions imposed by the court.
• If a settlement is reached at mediation, the defendant notifies the court. If not, the case continues through the litigation process, subject to case management timelines.

Step 3 - Timetable (Toronto/Windsor)

• A timetable is a schedule for completing steps required to advance the proceeding, such as delivery of affidavits of documents and examinations for discovery.
• The plaintiff in an action must file a timetable or request a case conference to establish a timetable within 30 days of an order for exemption from mediation, or where a case proceeds to mediation but does not settle, within 30 days of receiving the mediator's report. For applications, the applicant must file the timetable or request a case conference within 180 days after the proceeding commenced.
• If a party fails to comply with a timetable established under Rule 77, a CM judge or CM master may strike out any document filed by the party, dismiss the party's proceeding, strike out the party's defence, order the party to comply, order payment of costs, or make any other just order.

Step 4 - Case conference

• A CM judge or CM master may convene a case conference at any time, on his or her own initiative or at a party's request. Case conferences may be held in person, by conference call or in writing. Parties may be directed to attend personally.
• The CM judge or CM master may explore methods of resolving contested issues, secure the parties' agreement on a schedule of events, create or amend case timetables, and impose sanctions if necessary.
• A judge who conducts a case conference does not preside at the trial of the action or hearing of the application.

Step 5 - Motions (if necessary)

• A motion may be made only to a CM judge or CM master.
• Case management motions must be brought on a case management motion form (Form 77C) and do not require a motion record or supporting material.
• Motions may be conducted by attendance, in writing, by fax, or by telephone or video conference.
• The CM judge or CM master records the disposition of the motion on the case management motion form. Normally, a formal order does not need to be prepared, signed or entered.

Step 6 - Settlement conference

• At a settlement conference, the CM judge or CM master assists the parties to resolve the matter or narrow the issues. It takes place not later than 150 days after the first defence is filed in fast track cases, and in standard track cases, not later than 240 days after the first defence is filed.
• The settlement conference is scheduled automatically by the registrar, with at least 45 days notice to the parties of the scheduled date.
• All examinations, production of documents and related motions must be completed before the settlement conference.
• The plaintiff must deliver a settlement conference brief not later than 10 days prior to the conference. Other parties must deliver their briefs not later than 5 days before the conference. The brief contains the pleadings, relevant portions of transcripts, and a summary of the facts, issues, law and anticipated evidence of the witnesses.
• A CM judge or CM master may direct the parties to participate in the settlement conference personally with their counsel.
• At the settlement conference the CM judge or CM master assigns a trial or hearing date, or refers the parties to a judge responsible for doing so.
• A judge who conducts a settlement conference does not preside at the trial of the action or hearing of the application.

Step 7 - Trial management conference

• Once the trial date is set, a trial management conference may be held at the request of a party or the court, in order to explore ways to make more efficient use of trial time.
• The parties must file the trial management conference form (Form 77D) not later than 14 days before the trial or four days before the conference, whichever is earlier.

Step 8 - Conclusion of case management

• Case management of the proceeding concludes when the trial or hearing begins, or when the case is resolved, either by dismissal, withdrawal, settlement, or other disposition.
• In order to set a matter down for trial or hearing, a party must serve a trial or application record in accordance with Rule 48.02 or subrule 38.09(1) at least seven days before the trial or hearing date.