Management of Cases

CHAPTER 13


13.1 Caseflow Management Generally
13.2 The Team Concept: Case Management Teams and Judicial Teams
13.3 Circuiting
13.4 Calendaring
13.5 The Multi-door Concept and Alternate Dispute Resolution
13.6 Pre-Trials, Settlement Conferences and Trial Management Conferences
13.7 Discoveries
13.8 Motions
13.9 Venue
13.10 Enforcement


13.1 Caseflow Management Generally


INTRODUCTION

We stated in Chapter 1 that in our view the modern civil justice system should operate under the rubric of an overall caseflow management system.

Caseflow management is a case-processing mechanism which manages the time and events of a law suit as it passes through the justice system. It does so with a view to achieving the following objectives:

  • the earlier resolution of disputes, where that is possible;
  • the reduction, and eventual elimination, of delays and backlogs;
  • the allocation of judicial, quasi-judicial and administrative resources to cases in the most effective manner; and,
  • reduction of the cost of litigation.

In any well-designed case management program there exist two components:

  • the effort that must be expended to "prevent delays" (referred to as delay prevention)
  • and the effort that must be expended to reduce delay in the aggregate i.e., to decrease the number of cases in a "backlog" status (referred to as delay reduction or backlog reduction) [46] .

The notion of case management entails a significant shift in the cultural mind set that has characterized the processing of civil cases in our courts for generations.

In that tradition it has been the role of the lawyers, together with their clients, to decide if and when a lawsuit would proceed, and when various steps would be taken. They have done so within the framework of the Rules of Civil Procedure, and the time parameters laid out in those Rules. With few exceptions, however, the prevailing attitude in Ontario has always been that those time parameters are to be honoured more in the breach than in the observance.

There is a growing recognition that this mode of operation is no longer appropriate. It has ceased to work effectively in delivering civil justice to the public. Given the rising costs and unacceptable delays in litigation and the similarly escalating demands on the administration and the judiciary, it is apparent to us that we no longer have the resources as a society to permit this laissez-faire approach to the processing of cases to continue.

Caseflow management involves the transfer of principle responsibility for management of the pace of litigation to the judiciary. It also involves the establishment of reasonable, but firm, time limits and the adherence to those parameters. In short, caseflow management entails a more active form of management and intervention by the court in the various phases of litigation. It does so with a view to promoting the earlier resolution of cases, to eliminating unacceptable delays, and, ultimately, to reducing costs and enhancing the quality of justice.

Ideally, this intervention occurs early and also with some frequency during the life of the case. We have heard constantly from lawyers, administrators, judges and members of the public that early intervention by the judiciary is of critical importance in the disposition of cases. This is true in all cases, but is particularly true in family law cases. It is often, and in our view accurately, said that the more times one can build into the system an occasion when counsel has to pick up his or her file and think about it, the more likely it is that their will be an earlier resolution of the case.

We think this emphasis is important.

Studies show that approximately 55% of cases commenced never proceed to the point where a statement of defence is filed [47] . They are either resolved by way of a default judgment, settled outside of the courts before reaching that stage, or any interest in pursuing them simply dissipates. The remaining 45% of the case load proceeds through various additional stages of litigation, with the vast majority settling at some point between the pleading stage and the eve or morning of trial.

The reality is that 95% to 97% of all civil cases are never tried. They are settled. This seems to be the experience in Anglo-Canadian-American court systems wherever located and regardless of the structure which is in place to process the flow of cases through the system.

If this is the reality, then, it makes sense that the overall mechanism for the disposition of disputes should focus on dealing with the vast majority of cases that settle, as well as focusing on those that have to be tried. Historically in Ontario, however, the primary focus has been on the processing of cases in preparation for trial.

Caseflow management permits the necessary broadening of perspective and emphasis from this primary focus to a duality of focus -- disposition where possible, and trial where necessary. It does so by building in the potential for early -- and if appropriate, repeated -- judicial or quasi-judicial intervention. This is accomplished by means of case conferences which are either prescribed at fixed points in the process by the rules, or called at the instance of the case management judge or counsel. The case conference can take the form of an early evaluation or screening exercise; it can be used as an occasion to discuss the diversion of the dispute into one or another of the ADR channels; it can take the form of a settlement conference; or, if the case cannot be settled and is bound for trial, the case conference can take the form of a trial management conference. These events each provide occasions where the file must be dealt with by counsel. Moreover, they provide opportunities where the judge or the judicial support officer can work out with counsel how the case is to proceed.

Caseflow management is a concept which in our opinion offers great potential for combining and co-ordinating the various disparate elements of the civil justice system and integrating them into a more effective whole. It is able to do this by facilitating a combination of the following features:

  • overall management of the case flow process by the judiciary;
  • early intervention in a case either by a judge or by a quasi-judicial officer;
  • the disposition of all interlocutory matters;
  • the deployment of ADR mechanisms and techniques;
  • the utilization of case conferences, settlement conferences and trial management conferences;
  • the utilization of registrars, case management officers and judicial support officers to perform the administrative and quasi- judicial tasks which do not require a "section 96" judge to perform, thus freeing up judges to concentrate their efforts on the truly "judicial" activities of trying cases and assisting the parties in settling their disputes. [48]

This approach to the disposition of civil disputes in the system calls for changes in attitude and practice on the part of those making the system work. Lawyers are required to adjust to the loss of control over the pace of their litigation and to utilize the ADR options which are available to address the resolution of their clients' problems. Judges are called upon to add to their classic adjudicative and settlement functions the roles of case manager and process facilitator. Administrators need to adapt to new methods of dealing with cases.

THE PILOT PROJECTS: BENEFITS AND LESSONS TO BE LEARNED

In 1988 the Joint Committee on Court Reform called for implementation of a system of caseflow management in order to address problems of delay in the court system. Pilot projects were established in three cities -- Sault Ste Marie, Windsor and Toronto -- chosen to represent small, medium and large urban centres in Ontario. Control sites and mechanisms were put in place for comparative purposes. In Toronto there are two pilot projects: civil and family. The family project encompasses both the General Division at 145 Queen St. and the Provincial Division at 311 Jarvis St.

Benefits

The results of these projects demonstrate that case management works, when properly planned for, supported and resourced. In general, case managed cases are disposed of in the system at approximately twice the rate of non-case managed cases [49] .

In Toronto, for instance, 88% of the case managed cases initiated in the first 6 months of the project (December 1, 1991 to May 1, 1992) were disposed of as at April 24, 1994, compared to only 41% of the non-case managed cases initiated during the same period. [50] In terms of pending inventory, 70% of standard track cases in case management are disposed of within 12 months of filing; 80% are disposed of within 18 months; and 90% within 24 months. For non-case managed cases the comparable figures are 20% disposed of within 12 months of filing, 30% within 18 months, and 35% within 24 months [51] .

In Sault Ste. Marie, where case management was first introduced, more case managed cases were resolved in a fixed period than non-case managed cases, and the case managed cases were resolved more quickly [52] . The Algoma Bar, initially very skeptical about the concept, has become strongly supportive of case management as it is practised there under the judicial leadership of Justices Pardu and Whalen. The Bar see case management as providing counsel with greater encouragement to look at their files for purposes of settlement, noting that if responsible counsel are constrained to think about their files, cases will be resolved. They acknowledged the utility of having time limits more closely enforced. Judges, lawyers and administrators called for a system that would free up judges earlier to do case conferences and pre-trials, and that would provide a person to assist the judiciary in carrying out its organizational and administrative tasks.

In Windsor, while the percentage of case managed cases resolved was lower, the case managed cases were resolved substantially more quickly (average of 208 days, compared to 393 days) [53] . The Windsor project began on rocky footing, primarily because it incorporated all of its cases into the system, including the then existing backlog. The Bar complained about getting their cases ready but not being able to process them because of insufficient judicial resources to provide pre-trials and trials. Matters have improved significantly, however. Windsor is an impressive success story in terms of delay and backlog reduction [54] . Under the judicial leadership of Justices Morin and Brockenshire, and with the hard work of court administrators and members of the Bar, the number of pre-merger cases waiting to be tried at the time of writing of this Report, has been reduced to 444 from 1822, and the number of post-merger cases has been reduced steadily.

In the United States there is more than ample evidence to demonstrate that case management works. A 1987 study conducted by the National Centre for State Courts of 26 cities over a period of 12 years concluded that courts which employed case management in a committed fashion significantly reduced delay [55] . A 1993 study undertaken by the Ministry of the Attorney General regarding the three Ontario pilot projects formed similar views [56] , and determined:

  • that case management has reduced the delay between most stages in proceedings and substantially reduced the overall passage of time from commencement to resolution;
  • that less overall time spent on case managed files by the bar and the public resulted in lower overall costs; and,
  • that the cost per file of administering case managed cases to resolution is significantly lower than that of administering non-case managed files;

The authors of that Report concluded [57] :

Evaluation of the Pilot Projects has demonstrated that Case Management has reduced the time during which cases receive services from the court; the number of services received; and, in some jurisdictions, the number of very expensive services - trials - received. Not surprisingly, then our review of administrative costs on a per file basis .... underscores the potential for long-term savings following a reasonable period of adjustment. Over time, Case Management can reasonably be expected to result in a net decrease in administrative operating costs.

A year later, in 1994, the Joint Committee on Court Reform engaged QUINDECA Corporation, through its principal, Jerry Short, to conduct an independent review of the three pilot projects. QUINDECA's Report [58] concluded that the case management experience in Ontario was sufficiently successful to warrant continuation. At p. 9, the authors state:

From a review of all three evaluation methods presented, and from a review of the numerous analyses performed during the pilot projects, the only conclusion is that the program is successful. Case management in the Ontario Court of Justice works. Litigants, lawyers, staff, and judges are better off in terms of the time to resolve cases than those in non-case managed cases. That is the conclusion and the measure of success. (italics added)

This conclusion is not presented by QUINDECA without caveats, however. We have incorporated some of these into the pre-conditions for a successful caseflow management system which are put forward later in this Chapter.

Lessons from the Pilot Projects

A number of lessons can be drawn from the pilot experiments.

  • Need for Clear and Committed Leadership

    There must be clear and committed leadership from the Bench, the Bar and the Administration. These qualities have not been absent from the pilots, although it must be noted that not all judges, lawyers and administrators share the same enthusiasm and commitment as that demonstrated by those who have chosen to take part.

    The QUINDECA Report noted [59] :

    At the same time, the biggest hurdles have come from within the ranks of the active participants: bench officers who do not support or enforce the case management rules; lawyers who abuse the system with repeated motions for extension of time; and administrative staff who delayed in providing an adequate infrastructure to support case management operations. These hurdles, however, were not and are not so formidable that they cannot be overcome. And, in fact many have already been resolved.

    Indeed, it is our observation from talking to judges and lawyers around the province that those who have experienced case management are quickly persuaded of the advantages and benefits of the system, and become supportive of the concept. This is important because, as the Quindeca Report indicates [60] :

    Perhaps, however, the single most important by-product of the case management system and the one that is not easily quantified are the numbers of believers in the case management program. Whether the numbers support the final conclusions or not, it is vital that the program's success be measured by whether the people who were hopefuls had actually become believers in the system. The mere presence of believers in the system (judges, lawyers, and staff) all point to a measure of succes -- one which may not be quantifiable, but which has a far more significant affect on the program than ones that are quantifiable. It is especially encouraging that these believers comprise their number from people who have been involved in the program and people who have seen the practical results. (italics in original; underlining added)
  • Establishment of Standards and Criteria

    It is important to establish basic standards and criteria so that the success or failure of the system can be assessed across the province on the basis of a common set of principles, and to entrench methods of measuring performance in terms of those standards and criteria. This means monitoring and managing the total case inventory from a system-wide perspective as well as on the basis of the rules and time standards that apply to individual steps in the process.

    It also means setting standards regarding the speed with which a case should normally be processed through the system. This is important from the perspective of the public, which needs to know that there are measuring sticks for the processing of their disputes through the system. It is important, as well, for purposes of providing a yardstick against which what is a "true" backlog can be measured.

    There are no empirical studies of which we are aware that establish time standards for the processing of cases. The American Bar Association has proposed the following standards, however:

    • of cases disposed of within 12 months of filing;
    • of cases disposed of within 18 months of filing; and,
    • of cases disposed of within 24 months of filing.

    In the state of Michigan, the Wayne County Circuit Court -- which is rougly comparable in size to our Toronto Region -- has adopted these time standards. In the space of seven years they have reduced the number of cases in their system over 2 years in age from 17,141 to 327.

    RECOMMENDATION:

    We recommend that Ontario adopt general time standards for the disposition of cases in the system from the date of filing. We propose the following minimum time lines for the completion of standard cases (recognizing that regional and local circumstances may suggest shorter parameters):

    From filing to settlement conference — 9-12 MONTHS
    From settlement conference to trial — 9-12 MONTHS

  • Adherence to Time Standards

    Caseflow management will only work effectively if there is a firm, consistent policy for minimizing adjournments and adherence to time parameters, and if that policy is adhered to by the Bar and enforced consistently by the Bench.

  • Case Management is not "Extra Duty"

    Judges cannotbe expected to carry out their case management functions in addition to their regular judicial duties - - on a before and after hours basis, as it were. In the Toronto civil project, when case management was initially introduced, judges were asked to deal with their case managment lists either early in the morning, in advance of their regular court sitting, or in the late afternoon and evenings, following those sittings. This was neither fair to the judges nor to the case management litigants and counsel; nor was it fair to the litigants or accused persons whose matters were being tried during the regular court hours.

    Members of the judiciary across the province are willing to -- and do-- work hard throughout the entire working day and often well into the evening; but trying cases properly is a full time job, and adding the important function of case management to that load creates an impossible burden. The Toronto experiment in its beginning years proved this. Judges burned out, and other judges were discouraged, if not completely alienated, from becoming involved as a result of what they saw happening to those who were participating.

    In the past year, however, changes have been made in response to the judges' concerns. A file is no longer assigned to an individual case management judge but is assigned to the "Case Management Team". Case management motions, conferences, and pretrials are now conducted as part of the regular working day. Changes in the Rules of Civil Procedure were introduced to enable registrars to handle some of the more routine scheduling matters. As a result, the team of 12 case management judges on the Toronto civil project, led by Justice Douglas Coo, have strongly recommended the implementation of 100% case management. In a Report to the Review, they concluded:

    Case management is the way of the future. The judges in the Toronto Region, who have been involved in either the individual calendar system or in the team, support the expansion to 100% cases management for all civil cases in the Toronto Region, other than commercial, family and landlord and tenant. The team system has worked well. There need to be some adjustments to the Rules to expand the use of registrars to deal with all routine time extensions and to sign consent orders. As well, time needs to be allocated to allow judges to conduct follow up appointments during the regular sitting day for the small number of files that would benefit from follow up with one judge. A fixed, predictable trial date is a cornerstone of case management. Cases will not settle without a fixed date. There are not sufficient judges to hear the necessary trials, if judges are also expected to do motions presently being conducted by the masters. Additional judicial assistance is required to assist with routine contested motions. The restoration and expansion of the masters is the way to provide this much needed assistance. As well, significant improvements in the system could be achieved. Mandatory early conferences at the close of pleading and trial scheduling conferences, both conducted by masters, would promote early settlement and would result in fewer, shorter trials. We urge the Task Force in the interests of the public to recommend the immediate restoration and expansion of the office of master to permit the expansion of case management.

    It needs to be recognized that caseflow management should not be viewed as some separate and special approach to the processing of disputes through the civil justice system -- a "bell or whistle" that is nice to have but not essential to the operation. Caseflow management must become the ordinary way of carrying on the court's business.

    As the Quindeca Report aptly summarizes it [61] :

    Case management is not about single acts of Herculean effort -- though sometimes these are required to take a project over the hump or to reduce the backlog. Instead, case management is about institutionalizing a process and a support component that has as its first and second concern the fair, just, economic, and timely management of cases. It is simply a way of doing business.
    Case management is not a pilot project. It is not a buzzword or fad. It is not a trick to transform judges from experienced, respected jurists into process managers. And, it most certainly is not a means to other ends. Case management is, in fact, an end unto itself. It is preservation of the most important roles and functions of the judiciary. It is insuring that the public's trust is protected. It is fulfilling the very reason that courts exist. To think of case management in other terms is to relinquish it to a lesser task.
    To make case management the order of business for all, many things must be done.
    Foremost is a clear articulation from the Bench, Bar, and Ministry leadership that case management is not a program or project, but it is the regular order of business. To this end, case management must cease being a separate set of rules or procedures - it must, instead, be the rules of court, the rules of civil procedure, the standards of judicial administration, or the terms of reference. As long as the principles of case management are secondary to the daily routine of work, the efforts put toward case management will be extra-curricular, excessive, and burdensome. And, only a few will do it as they have been doing so far.

THE REQUIREMENTS FOR EFFECTIVE CASEFLOW MANAGEMENT

The pilot projects in Ontario, then, have demonstrated that case flow management works and that it is worth doing, provided that it is properly resourced. Indeed, we believe that the civil justice system cannot function effectively or utilize its resources effectively, given the overly crowded calendars which are endemic to the current system, without the implementation of a caseflow management system on a province-wide basis.

It is important to emphasize again, however, that such a system must be supported by the proper infrastructure and resources. The implementation of caseflow management must be accompanied by,

  • the support and commitment of the Bench, the Bar and the Ministry, to make it work;
  • the necessary technological systems, including computer hardware, computer software and communication networks, and including the training and staff support which are essential to make such technology effective;
  • the appropriate level and compliment of staff support, including case management co-ordinators, scheduling staff, secretarial and file management staff;
  • a willingness on the part of the judiciary to take responsibility for managing the pace of litigation and to enforce the time parameters set down;
  • the appointment of judicial support officers to provide case management and judicial support;
  • a strategy to reduce the existing backlogs at the same time as the new system prevents future backlog;
  • the completion of an independent resource-needs analysis to determine the appropriate mix and quantities of the ingredients referred to above;
  • the articulation of clear goals and standards -- both on a systems-wide basis and on the basis of monitoring the rules and time standards of individual cases -- in order to provide benchmarks against which the effectiveness of the system can be measured;
  • the development of a detailed operational transition plan to phase in the introduction of case management on a province-wide scale over a reasonable period of time; and, finally,
  • the creation of an ongoing, periodic review mechanism in order to ensure that the caseflow management model continues to work as well as possible.

RECOMMENDATIONS:

We recommend that a caseflow management system be implemented on a province-wide basis in Ontario over a period of the next 4-5 years. The system will manage the time and event of law suits as they pass through the civil justice system. With both delay prevention and delay reduction in mind, it should seek to achieve the following objectives:

  • The earlier resolution of disputes, where that is possible;
  • The prevention, reduction, and eventual elimination, of delays and backlogs;
  • The allocation of judicial, quasi-judicial and administrative resources to cases in the most effective manner; and,
  • Reduction of the cost of litigation.

The exact nature and form of the system of caseflow management to be introduced across the province is a matter to be left to an implementation team to be created for that purpose. However, in addition to the foregoing, the new model will need to include the following key features (some of which have been outlined earlier in this chapter and some of which are developed elsewhere in this report):

  • Principle responsibility for management of the flow of cases by the judiciary
  • Judicial and administrative teams, including judicial support officers and case management/administrative co-ordinators
  • Screening and evaluation mechanisms to move cases into appropriate streams
  • The processing of cases in accordance with given time parameters, which will be enforced
  • Integration of the various dispute resolution techniques and case management mechanisms into a co-ordinated whole
  • Case conferences (to deal with the logistics and processing of cases), settlement conferences (before which a case will not be listed for trial) and trial management conferences (before which a case will not be given a trial date)
  • Training for staff, judiciary and the bar
  • Adequate resources

We have earlier outlined certain factors which are considered by those with expertise in the field [62] to be pre-conditions to the establishment of a successful caseflow management system. As it is critical that these factors be recognized for heir import as prequisites which must be adhered to, we repeat them here, as part of our recommendations.

THE IMPLEMENTATION OF CASEFLOW MANAGEMENT MUST BE ACCOMPANIED BY:

  • the support and commitment of the bench, the bar and the ministry, to make it work;
  • the necessary technological systems, including computer hardware, computer software and communication networks, and include the training and staff support which are essential to make such technology effective;
  • the appropriate level and complement of staff support, including case management co-ordinators, scheduling staff, secretarial and file management staff;
  • a willingness on the part of the judiciary to take responsibility for managing the pace of litigation and to enforce the time parameters set down;
  • the appointment of judicial support officers to provide case management and judicial support;
  • a strategy to reduce the existing backlogs at the same time as the new system prevents future backlog;
  • the completion of an independent resource-needs analysis to determine the appropriate mix and quantities of the ingredients referred to above;
  • the articulation of clear goals and standards -- both on a systems wide basis and on the basis of monitoring the rules and time standards of individual cases -- in order to provide benchmarks against which the effectiveness of the system can be measured;
  • the development of a detailed operational transition plan to phase in the introduction of case management on a province-wide scale; and, finally,
  • the creation of an ongoing, periodic review mechanism in order to ensure that the caseflow management model is working as well as possible on a continuing basis.

We conclude this section with a note about cost. Caseflow management is resource intensive, to be sure. However, there are many cost saving measures that can be taken in conjunction with its implementation. Indeed, the QUINDECA examination concluded that additional funding may not be necessary for the implementation of caseflow management itself. QUINDECA reported [63] :

Lastly, it would be simplest to identify and recommend satisfaction of these preconditions without regard to cost. The costs of the program and the ability to fund the program provide the context in which satisfaction of these preconditions must be viewed. To view them, however, in isolation of other programs would be to suggest they can only be resolved if new money can be found. This is not the evaluation team's conclusion. In fact, for every precondition that has a fiscal impact, the evaluation team has identified an offsetting cost reduction or new revenue source that could be considered to defray or completely offset the cost of the program. Reallocating existing resources, changing operational priorities, and re-thinking the premises for some existing costs all contribute to the pool of available funds to satisfy these preconditions.

13.2 The Team Concept: Case Management Teams And Judicial Teams

The central organizational concept for the implementation of caseflow management, from the perspective of processing the cases, is that of the "case management team", which in turn contemplates the formation and utilization of "judicial teams".

In the caseflow management system that we envision, judges, judicial support officers and case management co-ordinators will work closely together in teams to provide a more effective, cost-efficient and streamlined system. The result will be civil justice which is of better quality, which is more affordable and, which is, thus, more accessible to the public.

How will these "teams", as we envision them, be structured, and how will they work?

The Judicial Team

First, we propose that judges in the General Division across the Province be assigned to teams. This concept has been modeled with considerable success.

We propose that cases be assigned randomly, upon filing, to a team of judges. Each team will have a team leader. The team will be responsible for the disposition of the case load allocated to it, and it will determine how that work will be processed. It will do so under the guidance of the team leader, who will work in conjunction with the Regional Senior Justice in this regard. In this way, the members of the team will share responsibility and accountability for the management of the team's "inventory of cases", dividing up the management duties, the motion work, the pre-trials and the trials.

The judicial team concept is not something which need be confined to the large, single-location Region, urban centre of Toronto. Most major centres in Ontario have a sufficient number of judges assigned to them to comprise a team. Where that is not so, the judicial team -- and the case management team of which it is a part -- can be married with the concept of the "mini-circuit" which has sprung up within various Regions; and married, we hope, in a way that will reduce the amount of travel necessary for judges in such situations to meet the needs of their "team".

The Case Management Team

While the judicial teams will bear overall responsibility for the processing of cases in the caseflow management system, they will form part of a broader "case management team" in performing these functions. The case management team will consist of judges, judicial support officers, and case management co-ordinators.

The terms "judicial support officer" and "case management co-ordinator" need explanation. They are new concepts, although each has a heritage in the existing system. Both are important to the smooth and effective operation of the civil justice system that we are proposing.

The Judicial Support Officer

While the position of judicial support officer has as part of its heritage the traditional office of Master in the Ontario system, it is a newly formulated position designed to perform a role more in keeping with the integrated system which the Civil Justice Review is recommending.

There is a wide range of activities between the administrative and ministerial functions performed by registrars and administrators, on the one hand, and the functions performed by judges, on the other hand. These functions can be performed more expeditiously and in a more cost-effective manner by non-administrators and non-judges. They are functions that do not require a judge appointed under section 96 of the Constitution Act, 1982 for their performance, but they do require legal training, some case management and ADR skills, and the ability to exercise an independent discretion and to make independent decisions of a quasi-judicial nature.

The judicial support officer will perform these tasks, working in conjunction with the judiciary and the case management co-ordinators, as part of the case management team.

The tasks which they will perform will include,

  • the early evaluation of cases for streaming into appropriate dispute resolution channels -- an ADR channel, involving mediation, mini-trial, arbitration or one or another of the many ADR options that are available; or a trial channel, if the case is one of those cases clearly destined for that route; or some combination of these two channels;
  • the conduct of ADR sessions;
  • presiding over case scheduling conferences;
  • in the appropriate case, and in co-operation with the judiciary, presiding over trial management conferences;
  • in the appropriate case, and in co-operation with the judiciary, presiding at settlement conferences;
  • presiding over the types of interlocutory motions historically dealt with by Masters (experience in the case management pilot projects has shown that there are fewer such motions in a case managed system);
  • acting on references, as Masters have traditionally done;
  • acting as managers and triers of construction lien actions, in respect of which the Masters have developed a justly respected expertise; and, generally,
  • performing the kinds of quasi-judicial tasks described above which do not require a judge for their performance but which nonetheless call for the exercise of the kind of independent discretion and decision making that are not ministerial or administrative in nature.

In family law matters, judicial support officers will not deal with pre-trial matters pertaining to interim custody, access or support.

While it is not contemplated that a separate "court-like" structure will be established for the judicial support officer, the judicial support officer should not be a civil servant (as that term is generally understood) and the office must be such as to carry with it the necessary stature and respect to enable the holder of the position to operate in an independent fashion and to make decisions that are accepted by those who are subject to them. Working closely with the judiciary, as part of the case management team, will assist in this regard. The judicial support officer's remuneration will need to be consistent with such a position. In addition, the position requires a legally trained person and, we propose, one who has practised law for at least 10 years. He or she will also require training and experience in acting as a provider of ADR services.

To ensure the requisite degree of stability and stature for the position, we recommend that the appointment be for life (with compulsory retirement at age 65) or at least for a lengthy period of time.

The Case Management Co-ordinator

The third integral part of the case management team is the case management co-ordinator. Case management co-ordinators will work with the judges and the judicial support officers in carrying out the administrative, ministerial and scheduling aspects of processing the team's workload.

The case management co-ordinator will be an administrator. He or she will perform for the team the types of functions presently being performed by trial co-ordinators and registrars. These functions will include,

  • scheduling of trials, motions, and case conferences (including settlement conferences and trial management conferences);
  • where appropriate, and where the technology is available, scheduling and arranging telephone and video conference calls;
  • scheduling ADR events;
  • co-ordinating other events with parties or counsel;
  • dealing with unopposed matters under the supervision of a judge;
  • monitoring and co-ordinating the use of facilities and technology, and collection of data;
  • monitoring and co-ordinating the collection of data for purposes of analysis and management of the team's work;
  • ensuring that proper records are kept of matters relating to the team's caseload.

Research Facilities

Law clerks and research facilities should be available to the case management teams, either as a part of the teams themselves or, at least, on a basis that assures ready accessibility to the members of the team.

The Rationale for This Approach

The case management teams, then, will provide well organized and closely knit units of judges, judicial support officers and case management personnel, each responsible and accountable for the disposition of the inventory of cases assigned to the team. These management units will streamline and expedite the way in which cases are processed. They will facilitate the better allocation of judicial and other resources in the system by enabling many functions that are presently being performed by judges in the case management pilot projects to be performed by less expensive personnel. They will facilitate better justice, with better managed motions and interlocutory proceedings, better co-ordination between Bench and Bar and Administration, and ultimately a better system that is less expensive to litigants and government.

An important feature of the case management team concept is its flexibility. The size of the team, and the number of judges assigned to work with a judicial support officer and a case management co-ordinator will vary to fit the practical needs and demands of the individual Regions and court centres in question. In this way differences brought about by geography, population, size of the Region or centre, matters of specialization and other factors of this sort can be accommodated.

This scheme will fulfill a number of "needs" in the system:

  • There is a need to allocate judicial and non-judicial resources in the most strategic fashion;
  • There is a need to integrate ADR effectively into the overall dispute resolution process;
  • There is a need to implement an early evaluation process to stream cases into the most appropriate dispute resolution channel for their most appropriate disposition;
  • There is a need to deal with the flood of motion and interlocutory work that is drowning the system;
  • There is a need to preserve the "reference" and "construction lien" functions presently being performed by a dwindling number of Masters;
  • There is a need to restructure the way in which human resources are deployed in the system.

Judges are the scarcest and most expensive human resource in the system. It is important to prioritize the allocation of their time and efforts so that they may concentrate upon those functions that judges are appointed to perform in society. The role of an independent judiciary in society is to determine peoples' rights, when those rights need to be determined; to protect people from the arbitrary action of government, when that protection is needed; to decide between people and resolve their disputes for them when they are unable to accomplish that feat themselves or through the assistance of ADR mechanisms; and, to be involved at the stage of the proceedings where there is some reasonable likelihood that the parties may be assisted in arriving at a settlement. In this latter respect, judges may make a useful contribution by encouraging resort to ADR techniques in appropriate cases, and even by performing ADR services themselves. Finally, in addition to these functions, case flow management will add an overall responsibility for the management of the case flow process.

The system should be structured in such a way as to facilitate the application of judicial resources in the foregoing fashion, rather than to hinder it. We believe that the case management team and judicial team concept will accomplish this goal. It will do so by freeing the judiciary from the burden of quasi-judicial and administrative/ministerial tasks which are now occupying an ever-increasing portion of judicial time. These tasks will be performed by judicial support officers and case management co-ordinators.

The need for such a re-structuring is acute.

Motions, for instance, have increased across the province, since merger in 1990, by more than 100% in general matters and by more than 150% in family law matters [64] . They are becoming lengthier and more complex. Indeed, motions are identified as the largest consumer of costs in the system, it being estimated that the Ministry of the Attorney General spends almost $3,000,000 per year on the administration of motions [65] . What's more, most motions are dealt with in courtrooms that are critically needed for the hearing of trials, thus adding to administrative costs and to trial backlogs.

In the end, though, motions are a major drain on the system because they engulf a great deal of judicial time, thus diminishing the amount of time judges have to apply to trials by an equivalent amount. While the number of motions that might otherwise be filed will diminish in a case managed system, it seems unlikely that the number of motions which have to be dealt with will decrease in absolute terms. Hence the need to find a less expensive and more effective means of dealing with them, in the form of the judicial support officer.

We repeat, though, that while the judicial support officer will deal with the motion workload at one time dealt with by Masters, he or she will perform a much broader role as well -- the discharge of early evaluation functions, ADR functions and case management functions. The judicial support officer will occupy a position which is more flexible and more fitted to the integrated civil justice system which the Review is proposing.

There will be costs incurred in connection with the implementation of this proposal. We are confident, however, that those costs can be recouped by other proposals for the re-allocation of resources which we are recommending.

In the first place, the taxpayer is saved the added costs of either having a more expensive section 96 judge performing functions which a less expensive judicial support officer can perform equally well, and perhaps better. More importantly, the taxpayer is saved the cost of the added strains and inefficiencies in the system which spring inevitably from the unavailability of a section 96 judge to perform the judicial functions attending that office, and thus in having the functions go unperformed or at least inadequately performed.

Secondly, as we have already observed, caseflow management itself will reduce the number of motions which the Court would otherwise have to deal with through the elimination of most unnecessary motions. Moreover, implementation of the Simplified Rules proposal, endorsed elsewhere in this Report [66] , will have the effect of removing the plethora of discovery related motions in cases involving claims for money or property of a value under $40,000. These in themselves will lead directly to cost savings. As we pointed out earlier, it costs government approximately $3,000,000 per year to deal with motion work across the province. Thus, any significant reduction in the number of motions which the Court will be called upon to handle will lead directly to comparably significant savings.

In addition, under the case management team rubric that we have put forward, most motions will no longer be dealt with in courtrooms. Instead, they will be disposed of in motion hearing rooms or offices, thus releasing courtrooms for desperately needed trial use.

Finally, the integration of case management co-ordinators into the case management system will lead to cost efficiencies on the administrative side of the teams' activities. Streamlining of the inherently time-consuming scheduling exercise respecting trials, motions, pre-trials etc. can only result in savings -- financially and psychologically!

In the end, we strongly believe the caseflow management system, with its teams of judges, judicial support officers and case management co-ordinators, will provide a less costly, more streamlined and more effective system of justice.

13.3 Circuiting

In the context of a caseflow managed system, the questions of circuiting and judicial scheduling take on a new dimension. If the notion is "one case, one judge", or "one case, one team of judges", then matters must be scheduled and judicial assignments arranged in a manner that supports this approach.

This raises, directly, the issue of how an overall system of caseflow management can function in a regionalized, geographically dispersed, 208 judge superior trial court which circuits and which operates traditionally on the basis of a master calendar. It is a difficult issue.

Circuiting

Circuiting has been a hallmark of the superior court in Anglo-Canadian jurisprudence since the time of the Normans in the eleventh century. In Ontario, circuiting can be traced back to the first act of the new government of Upper Canada in 1792, which introduced the English common law as the applicable law in civil and criminal matters in the province [67] .

Prior to the change in the structure of the courts in October 1990, the superior trial court was the High Court of Justice, a division of the Supreme Court of Ontario. It consisted of 55 judges who were based in Toronto (although appointed on a basis intended to be representative of the province), but who circuited to each county and district centre twice yearly. The District Court was the "resident" court in those communities, although its members also sat from time to time in other District Court centres within their regions and around the province [68] .

Since 1990, circuiting has continued in the General Division, but it is a circuiting of a different nature than that which characterized the former system, and it is a circuiting which has been met with far less enthusiam by the judiciary. Moreover, it is a type of circuiting which leads to various inefficiencies and which has had an affect upon the morale of the judiciary.

These difficulties need to be addressed, in our opinion, and the whole question of circuiting approached with a view to adapting its strengths to modern day realities and to integrating those strengths into the overall rubric of caseflow management which we are recommending for the Province.

Advantages to Circuiting

Circuiting is an integral characteristic of the superior trial court. It brings the following qualities to the deliberations of the court:

  • First, and most importantly, it provides for consistency in the administration of justice in Ontario by,
    • encouraging a uniformity in application of the law across the province; and,
    • avoiding "balkanization" of the province into different pockets of law-applying segments.
    Without circuiting, separated legal communities have the potential to develop their own brand of justice. A circuiting judge helps to ensure that decisions are rendered which are consistent with those being delivered elsewhere in the province.
  • Secondly, circuiting brings a "fresh face" quality to the administration of justice across the province.
    The potential for an insulated Bench and Bar to develop an unhealthy familiarity amongst themselves not only enhances the prospect of balkanized justice, it creates the risk of weakening the aura and reality of impartiality on the part of the judiciary, which is the bedrock upon which our justice system rests.
    A circuiting judge brings a new face to judicial deliberations in the community, one that is not caught up in local perceptions or familiarities.
  • Thirdly, and conversely, the circuiting judges themselves are provided with a new and differing perspective, not only on the legal environment in which they are accustomed to working but on differing parts of Ontario as well. Exposure to new places and faces is important. It is not healthy for the individual judge, or good for the public, for a judge to spend an entire career in any one place -- whether that place be at the corner of Queen St. and University Ave. in the City of Toronto, or in Thunder Bay, or Timmins, or Windsor, or Brockville, or Barrie, or anywhere else in Ontario. Variety benefits all.
    Historically, circuiting has served to maintain a sense of strength and vitality amongst those who engage in it. Requiring judges to deal with a wide variety of civil and criminal matters in a wide variety of locations across the province infused them with a renewed robustness and vigour. It also contributed to the development of a collegiality and cohesion amongst the members of the circuiting court. Overall, the quality of justice was enhanced by the process.

Circuiting Since 1990

Since 1990, circuiting has continued to take place in the General Division. Today, however, "circuiting" has come to represent, with few exceptions, the travelling of judges within the newly created Regions of Ontario. Moreover, within the Regions themselves circuiting is frequently confined to "mini-circuits" along one particular route or another, or in a particular area.

In our view, these developments have diluted the advantages and purposes of circuiting in a superior trial court.

Judges in the Ontario Court of Justice (General Division) are expected to circuit within their Regions, unless they cannot do so for reasons of health. Toronto is an exception, since it is one city comprising an entire Region. There, judges do not circuit; however, because of the concentrated volume, they move around by subject matter in 6 month rotations. This latter phenomenon can create similar difficulties to that of geographical circuiting, in terms of the scheduling of cases and assignment and availability of judges -- both of which are factors that have to be taken into account in developing a viable caseflow management system.

It is the opinion of this Review that circuiting, as presently constituted, can be improved.

The convention of circuiting only within the Regions, and frequently only within limited areas within Regions, increases the potential for balkanization of the justice system in Ontario. While this practice may maintain a consistency and uniformity in the administration of justice within the Regions -- or, at least, within the mini-circuits inside of those Regions -- it may well have the opposite effect for the province, as Regions and mini-regions become more and more identified as jurisdictional units in themselves. Furthermore, with judges circuiting around Regions instead of around the province, the "fresh face" too readily becomes a "familiar" face and the values of differing perspectives and experience are lost.

In addition, circuiting as presently constituted has created the perception, if not the reality, that circuiting assignments are not evenly allocated around the province and that circuiting is taking place simply for the sake of circuiting. In the words of some, circuiting has become "merely a deployment of resources" or "merely an exchange of judges" , without regard to the important underlying values which give it its worth. Not infrequently, a judge will travel from community A to community B, while another judge at the same time is travelling from community B to community A.

In Toronto, some judges are concerned that changing assignments by subject-matter is forcing the Court in that Region into an unwarranted trend towards specialization. While there are advantages to judges being available, and able, to spend large portions of their time presiding in matters regarding which they have a particular expertise and interest, it remains the case that judges appointed to the Ontario Court of Justice (General Division) are judges of the superior trial court of general jurisdiction in all civil and criminal matters. It is important that judges continue to have exposure to all areas of the law in order to maintain the essential character of the Court and to provide the judiciary with the "battery-recharging" lift and robustness that dealing with a variety of matters permits. When the pressure of volume and scheduling leads to judges being allocated more or less permanently to their areas of "expertise" because they can more "efficiently" -- that is to say, more quickly -- process the workload, these values are eroded in the long run.

There are some inefficiencies in any system of circuiting. Since most judges now travel between communities, unless health prohibits, there are, in fact, more judges circuiting today than was the case in the past. Judges who are constantly away from their "home base" however, cannot work as effectively in the long term as those who are not. We were told by judges and lawyers that there is often a loss of productive time during the last 2 or 3 days of any circuiting rotation because the judge is unable to embark upon a case that might extend beyond the end of his or her "sittings" in that community. Judges travel on their own time. The fact that they are away from home impacts negatively on judicial morale.

A Re-Assessment

The primary difficulties associated with present day circuiting are its focus on restricted geographical areas, the frequency with which judges must travel within those limited areas, and the strain and inefficiencies arising out of such frequent travel.

These difficulties can be addressed, in our view, by making changes to the manner of circuiting which will re-inject into the system the values outlined above which were embodied in the traditional form of circuiting. Those values -- consistency and uniformity in the application of the law across the Province, the judicial "fresh face", and the maintenance of a diverse and vigorous Bench -- are paramount, in our view, and must be maintained in order to ensure the highest quality of justice throughout Ontario. The inefficiencies of circuiting can be dealt with through the implementation of circuiting conventions and exchange protocols. Amongst other things, such conventions and protocols can ensure that there are judges "to cover" for held over circuiting judges.

Circuiting should remain as a central characteristic of the superior trial court. It must be re-structured, though, to avoid the pitfalls we have discussed and to enhance the strengths that it brings to the Court.

The Form of the "New" Circuiting

In conjunction with our concept of teams of judges around the province operating under the umbrella of an overall caseflow management system, we recommend that circuiting be re-organized along the following lines:

  • Judges in all Regions will be assigned to teams.
    This idea has already been employed successfully. As we have previously explained each team will be allocated an inventory of cases to deal with, from their inception into the system, and will be given the responsibility of processing those cases to conclusion. To enable it to carry out its mandate, each team will be provided with a support structure comprised of the necessary staff (including access to judicial support officers and case management co-ordinators), facilities and technological capabilities which will allow the team to do so.
    The team, under the direction of its team leader, and in conjunction with the Regional Senior Justice, will decide how it will deal with its case load -- who will hear motions, conduct pre-trial conferences, engage in ADR processes and hear trials; when; and where.
  • We anticipate that the "team" concept and the present concept of the "mini-circuit" can be effectively combined. Travel will be for the purpose of effecting the team's work, as organised by the team in conjunction with the Regional Senior Justice. This sort of travel will be necessary to even the workload and to equalize the resources, particularly in the smaller court centres, but it should reduce the amount of travelling, the amount of downtime and inconvenience that presently exists.
  • The primary focus of circuiting, however, would be on circuiting between Regions. Inter-regional circuiting would require circuiting among all eight regions by judges from all eight regions. Such a process would ensure that circuiting is divided equitably among all judges of the General Division, thus reducing excessive circuiting time for individual judges and reducing the impact of geography.
    The amount of time that judges will be required to circuit is a matter to be determined by the Chief Justice. There may be some exceptions, we would anticipate, for those whose health precludes such travel or who, for other legitimate reasons, are unable to participate.
    The circuiting judge would be fitted into the team concept. Incoming circuit judges will exchange with outgoing circuit judges. We think it preferable, however, that the incoming judge be assigned to preside at trials as much as possible. In this fashion, the values which circuiting is designed to foster are best preserved and enhanced.
    Inter-regional circuiting is, in our view, the most effective way in which to ensure that uniformity and consistency, the notion of a"fresh face" to justice with its attendant implications, and the promotion of a continually re-invigorated judiciary -- all important values which circuiting has historically brought to the justice system -- are protected. When judges truly travel around the province, rather than simply around a Region or parts of a Region or across the street, these concepts continue to be nurtured and strengthened, and circuiting ceases to be merely "an exchange of judges" or "circuiting simply for circuiting's sake". The public benefits from this.
  • In an attempt to minimize the inefficient down time which sometimes attends the end of a judge's circuiting rotation, we believe consideration should be given to a proposal put forward by the members of the Advocates' Society in Central East Region [69] . The proposal is to put into practice, in an effective way, the creation of a "short list" of matters which can be ready to proceed on quite short notice -- something which has been tried in Central East before. The concept has been tried in other locations, such as Kingston, as well.
    This "short list" concept depends upon the co-operation of the Bar, and the willingness of its members to respond quickly when "downtime" occurs as a result of a collapsed list or the inability of a circuit judge to begin a long matter. With the consent of counsel, civil cases which are realistically expected to take less than two days to try, and long motions, are placed on a list of cases ready to proceed on short notice. When trial co- ordinators get "the feel" that a regular sitting is likely to collapse, or that there is likely to be some "unused" time at the end of a sitting, they will notify counsel with cases on the short list to be alert and to advise whether or not they can be ready to proceed. Experienced trial co-ordinators do this now. In this way, it is hoped, cases will be found to fill in what may become unused downtime for the judge and the court.

RECOMMENDATIONS:

We recommend that circuiting be recognized as a central feature of the Ontario Court of Justice (General Division) and that judges of that court be required to circuit between regions, for a number of weeks per year to be determined by the Chief Justice. Judges should move into and out of the "Judicial Teams" to be be established throughout the province. Circuiting within Regions should take place in the context of the team concept, as directed by the Chief Justice and the Regional Senior Justice.

13.4 Calendaring

How judges are assigned to cases depends upon the "calendaring" system which is in place in the jurisdiction.

The Master Calendar

In Ontario, the civil courts have traditionally operated on the basis of a "master" calendar.

Under this model, judges are assigned to hear trials or motions or to preside at pre-trials on particular dates. Cases from the pool of cases on the master calendar which have been designated to be heard on those dates are then brought before the judge to be dealt with (assuming there is a courtroom or hearing room available for the judge on the date in question -- or, conversely that there is a judge available for the courtroom or hearing room to which the matters have been assigned!).

One of the results of this method of assigning cases is that several judges and/or Masters may deal with the same case on several different occasions as it works its way through the system, a state of affairs which can lead to inconsistencies and a duplication of preparation time for counsel and "education" time for judges. On the other hand, the great strength of the master calendar system is that it permits flexibility in the assignment of judges to cases.

The Individual Calendar

In an individual calendar system judges are randomly assigned to cases when the file is opened. Most systems include some method of case identification that allows this random assignment to occur on the basis of the type of case involved so that each judge is assigned an equally balanced calendar. The assigned judge is responsible for the assigned case until it is either disposed of (in the American system) or ready for trial (in the Canadian system).

While there are strong arguments for and against both systems, those jurisdictions that have achieved the most dramatic results with caseflow management are those which have used an individual calendar system. There is an advantage to a single judge, who has thorough knowledge of the case, dealing with all matters until the case is tried or ready to be tried. Monitoring of scheduled events is more careful when there is individual responsiblity for the file and frivolous, unnecessary or "simply strategic" motions are minimized.

Individual calendaring is difficult to achieve in Ontario, however, because judicial resources are spread out over approximately 50 General Division locations and a large geographical area. Judges in the Regions apart from Toronto are required to circuit to different court locations within their Regions. Individual calendars are problematic in such circumstances, because a judge may not be physically present in the same location for a significant period of time.

In Toronto, as we have noted, judges do not circuit geographically, but do move from subject matter to subject matter in six month rotations of criminal, general civil, family law or commercial list matters. Similar difficulties regarding individual calendaring are posed by such arrangements.

To some extent, the introduction of technology in the form of tele-conferencing and video conferencing, together with the capability for the electronic transfer of files, will help to overcome some of these difficulties. Nonetheless, a system of individual calendaring, in its traditional form, does not appear to be readily adaptable to the civil justice system in the province as a whole.

In many, if not most, of the courts in the United States, on the other hand, judges work on the basis of an individual calendar in which cases are randomly assigned to them from beginning to end. This latter paradigm seems, at first glance at least, to be more consistent with a caseflow management system which has as one of its clarion features the same notion that a case is "managed" by one judge from its inception to its dispostion.

How, then, does one implement the recommendation that Ontario's civil justice system should operate under the rubric of caseflow management in the context of an itererant superior trial court which is regionalized and which currently functions on the basis of a master calendar system?

The Team Concept

The most promising answer to the calendaring question, in our opinion, is the concept of judicial teams, which we have outlined earlier. The concept has been tried as we have noted, with considerable success, in both criminal and civil matters. We see no reason in principle why it cannot be applied across the province.

The team concept is central to the Review's vision of how the civil justice system in Ontario will look as we move into the 21st century. Teams will become the judicial and administrative units to make the rubric of caseflow management function effectively. They will form the vehicles by which circuiting within the Region -- or "mini-circuiting" as it is more customarily becoming -- is accomplished. They will provide the judicial unit for absorbing and integrating judges who circuit inter-regionally, a notion which also forms a central part of the recommendations of this Review.

13.5 The Multi-Door Concept And Alternative Dispute Resolution

The "Multi-Door" Concept

Earlier in this Report we have alluded to the "multi-door" concept of civil justice.

By that we meant a system where the "Court", in a very broad sense, becomes a "dispute resolution centre" -- a place where people go to have their differences resolved in a fashion which is most appropriate to their particular situation. That may -- and often will -- involve going through the traditional "courtroom door" for a court adjudicated resolution of their dispute. On the other hand, it may involve going through one or another of numerous "alternative dispute resolution" doors -- the mediation door, the early neutral evaluation door, the mini-trial door, or the arbitration door, for example. [70]

Central to the multi-door concept is the early evaluation and screening of cases with a view to directing them through the most appropriate "door". This is done through the application of various criteria designed to determine the dispute resolution mechanism most suited to the dispute. Such criteria include: the nature of the case; its complexity; the number of parties; the relationship of the parties; any disparity in bargaining power; the history of the negotiations between the disputants; the nature of the relief sought; and the size of the claim. [71]

Members of the public should have the option to select the process which is most suitable to the resolution of their particular dispute , as well as the facilities to enable them to make that choice. Alternative dispute resolution -- or "ADR" as is commonly known -- offers an important panoply of techniques for achieving this goal, particularly in conjunction with the rubric of caseflow management.

What is ADR and What does it Offer?

ADR techniques are not a panacea for all that ails the civil justice system. They simply provide other methods of attacking the ever present need for human beings to settle their differences. They supplement the court system. They cannot -- and should not be expected to -- supplant it.

ADR offers a variety of techniques to assist disputants in arriving at resolutions which are more expeditious, less expensive, and, consequently, far less draining from an emotional and psychological point of view for the participants. The great advantage of these techniques is their flexibility -- their "smorgasbord" nature. The disputants are free to pick and choose the technique which best suits their dispute, and to do so on their own schedule, in a more informal manner, and under the shield of confidentiality, if they so desire. In short, they can "fit the forum to the fuss" [72] , tailor-making their own procedure and, ultimately, their own solution.

The benefits provided by ADR processes have been summarized as follows: [73]

  • lower court caseloads and related public expense;
  • more accessible forums to people with disputes;
  • reduced expenditures of time and money for parties;
  • speedy and informal settlement of disputes otherwise disruptive of the community or the lives of the parties and their families;
  • enhanced public satisfaction with the justice system;
  • tailored resolutions to the parties' needs;
  • increased satisfaction and compliance with resolutions in which the parties have directly participated; and
  • restoration of neighbourhood and community values and more cohesive communities.

The most commonly known forms of ADR include such techniques as mediation, arbitration, early neutral evaluation, neutral fact-finding, mini-trials and, of course, negotiation. Negotiation is the oldest form of dispute resolution, dating back as long as there have been two or more people on earth! It is also the best form of dispute resolution, because solutions are arrived at voluntarily rather than by imposition; because negotiation is empowering; because the parties control the process, and their own and everyone else's participation in it; and, finally, because the parties also create and control the final resolution of the issues. [74] However, it does not always work, by itself. When it does not, the parties require the assistance of a third party, either as facilitator or adjudicator.

A great deal has been written on the subject of alternative dispute resolution, and it is not the purpose of the Civil Justice Review to repeat that wealth of information. A brief description of the basic forms of ADR might be useful, however.

Early Neutral Evaluation

Similar to the current process of pre-trials, early neutral evaluation requires the early assessment by an outside expert of the strengths of someone's case. This evaluation need not be by a judge but can be by a senior practitioner with particular expertise in the matter being litigated or by a trained ADR provider.

Pre-trials

Pre-trials refer to meetings held between counsel and a judge (other than the one who will ultimately hear the case). Except in family law matters, it has not been common for parties to attend. Generally, counsel will file documentation outlining the facts of their case and the law and evidence that they will put forth at trial to support their position. The judge is asked to give an opinion as to how he or she would decide the case if they were the one making the decision. This allows the parties to reassess their positions before proceeding to trial. In a well-prepared for and well-run pre-trial, the judge and counsel will actively explore the possibilities of settlement.

Mini-trials

A "mini-trial" is not a trial at all, but is a more structured presentation of the case than takes place at a pre-trial. It might be compared to a condensed version of the trial, with the presentation being made to a neutral person like a judge, or, preferably, to a neutral person plus a representative of each party. Evidence may be presented in the form of oral testimony and/or in affidavit form. The procedural details are usually determined by the parties in advance.

In the course of preparing for the mini-trial, the parties are required to give a thorough examination of the merits of their case. Once again, they have the benefit of an opinion from an outside evaluator.

Mediation

Mediation is a process in which a neutral person, agreeable to the disputing parties, acts as a facilitator to their negotiations and assists them in arriving at their own mutually acceptable solution. Mediation may occur before the litigation has commenced or at any time before trial. Generally, it is undertaken outside the court process, although judges will use mediating techniques in attempting to promote settlement discussions.

Settlement conferences

In a case managed environment, there may be a number of meetings held in the course of the litigation between the parties and the assigned judge or team of judges. It is expected that at least once, before trial, there will be a meeting to actively explore the possibilities of settlement of all or part of the issues.

Arbitration (binding and non-binding)

In this form of ADR, a neutral third party acts as an adjudicator. The parties can determine in advance if the decision of the arbitrator will be binding or non-binding. A non-binding decision will allow the party to proceed to the courts in the event that they are unhappy with the litigation and no reference will be made to the arbitrators's decision. In binding arbitration, the decision is enforceable. The parties will generally determine in advance what right and procedure of appeal will apply. If they do not, the provisions of The Arbitrations Act apply. [75]

The Need for Standards for ADR Practitioners

Currently there exist few, if any, standards for qualification as an ADR practitioner. There are no accreditation facilities of a provincial or federal nature. There are individuals and organizations which provide training and courses in ADR. While much of this training is excellent, we believe it to be in the public interest that standards of accredition be established, in order to ensure a high level of quality in the services provided to the public, both through the private sector and through any court-connected facilities that may be provided.

Should ADR be Court-Connected?

There are two factors which, in our view, support the conclusion that ADR facilities should be available to the public as part of the "court" system (again using that concept in a broad sense).

The first, as we have already mentioned, is that the state has an obligation to make available to its members the means by which their disputes may be resolved through the medium of objective, independent and fair third party intervention, when they are unable to resolve those disputes themselves. ADR is an effective way of doing so for many civil disputes, albeit not for all. Parties should have the option of resorting to the private sector for ADR services -- and, indeed, should be encouraged to exercise that option. There are many skilled ADR practitioners in the private sector. Civil justice ought not to be privatized, however, in the sense that the public is required to resort to private providers in order to enjoy the opportunities offered by ADR techniques. Such a circumstance could have the effect of limiting access to ADR options by those who are unable to resort to the private sector for one reason or another.

Secondly, ADR fits smoothly with the notion of caseflow management. Many of the techniques of ADR are already used by judges in settlement conferences. The use of these techniques can be expanded to other types of case conferences and, generally, to the process of managing the case throughout. Indeed, it could be argued that ADR itself is a multi-faceted form of case management. Since one of the important goals of case management is the early resolution of cases, the Court should have access to the range of ADR techniques which are available to effect that purpose, particularly the mechanism of early screening and evaluation of cases. If these procedures are to be effective in resolving some matters, it is critical that the Court have access to the tools.

Mr. Justice George Adams expressed the rationale for court-connected ADR in the following passage, in a paper on ADR, presented at Cornell University in July, 1994: [76]

The inter-relationship between the courts, the rule of law and dispute resolution cannot be understated. Its importance to a viable democratic society has been underlined by the Supreme Court of Canada in the following passage from the decision of the Honourable Mr. Justice Cory in Edmonton Journal v. Alta. (A.G.): [77]
There can be no doubt that the courts play an important role in any democratic society. They are the forum not only for the resolution of disputes between citizens, but for the resolution of disputes between the citizens and the state in all its manifestations. The more complex society becomes, the more important becomes the function of the courts. ...
It is precisely this fundamental public function of the courts that makes court-annexed ADR so crucial. Our courts must reflect the growing complexity of Canadian society in the dispute resolution processes they offer to the public. We can no longer take efficient private self-ordering for granted. The law applying to efforts of the profession through settlement requires active support. It is not sufficient to provide only one specialized and formal dispute resolution procedure - the trial.

Whether one or another of the ADR options is an appropriate one for any case is a question that should be canvassed regularly during the course of the case's progress. Case management, with its more "hands on" judicial approach, and its more frequent resort to case conferences, is an ideal vehicle to permit the parties to do so, and to move their matter out of the litigation stream into ADR at any stage where it seems appropriate, either for the resolution of the dispute as a whole, or for the resolution of a particular issue or issues.

The Court-Connected ADR Centre: A Pilot Project

A pilot project in court-connected ADR was launched in October, 1994. A joint project of the Ontario Court of Justice (General Division) and the Ministry of the Attorney General, it is the first court-connected ADR project in Canada.

One out of every 10 new civil cases commenced in Toronto Region is referred to the new ADR Centre, by random selection through the computer system supporting the case management project. The cases are selected at the point at which the first statement of defence is filed, excluding automobile negligence cases, family matters and applications. [78] Some matters are also referred to the Centre from the Commercial List in Toronto and in certain other cases, by members of the judiciary. Motor vehicle cases and family law matters are excluded, for purposes of the pilot project.

When a matter has been referred in this fashion, the ADR Centre sends the parties and counsel a notice to that effect and an appointment date for an ADR session. The notice of referral explains the procedure at the ADR Centre, the options available and what is expected of the parties.

Participation is not obligatory. However, it is obligatory that the parties "meet and confer" before attending or determining that they will not attend. They may settle the case at the meet and confer stage, of course. They may decide to utilize the services of a private ADR provider. They may decide to attend the ADR session. Or, they may decide to opt out. If the parties choose to opt out, however, they must file a certificate indicating that they have been advised by their counsel of the availability of the range of ADR processes and of the existence of the court-based ADR Centre and that ADR techniques have been considered but are unlikely to succeed. Without the filing of such a certificate, the action may not proceed to trial. In addition, even where the matter is not to be dealt with at the ADR Centre, after having been referred there, the parties must outline, in the same certificate, the legal and factual issues which are to be determined at trial and state the estimated length of trial. [79]

Where the parties have resorted to the private sector, but the process has not succeeded, the foregoing certificate must also be filed, before the matter can proceed to trial, stating the name of the private provider used and the ADR technique employed. The remaining legal and factual issues must also be summarized, and the time of trial estimated.

The ADR Centre illustrates other positive aspects of such a scheme as well, we believe. The certificate previously mentioned must also be submitted when the session or sessions at the Centre have not successfully resolved the case, and where ADR has not been tried, or where it has been tried unsuccessfully in the private sector. The requirement that the factual and legal issues be articulated and defined early on will be of great assistance in focusing the efforts of counsel and the parties during the processing of the case. Those issues which remain for trial can be much more easily managed at trial.

Where the parties choose to attend the ADR session they meet, in a session of approximately 2-3 hours, with a dispute resolution officer ("DRO"). It is important to note that the parties are expected to attend with counsel. Initially the DRO meets with all parties and counsel together, and then separately as often as necessary. The session takes the form of a mediation, but an assessment is made during this process of whether other ADR processes -- such as neutral evaluation or a mini-trial -- may be more appropriate for the case. Arbitration, or other binding forms of dispute resolution are not provided.

Judges are also available to participate in ADR sessions at the Centre. The role of the DRO or judge varies with the nature of the case and the relationship of the parties, but includes, for example, the following:

  • opening up lines of communication between the parties
  • identifying and narrowing issues
  • focussing on the underlying interests of each side
  • identifying areas of disagreement as well as agreement
  • conveying messages between the parties
  • highlighting the consequences of not settling
  • identifying options beyond the view of any one party, and
  • working with the parties to develop potential elements of a settlement package. [80]

The design and results of the pilot project are being monitored and assessed, and the ADR Centre will be evaluated at the conclusion of its two year mandate. It is too early to draw any firm inferences from the experience at this stage. However, the early indications are generally promising. A significant number of actions are settling before the attendance at an ADR session. An encouraging number of those who attend for mediation settle. The parties seem pleased with the results and the process. There are still a large number of lawyers and parties who are opting not to participate in the process, though.

An ADR session provides the opportunity for early evaluation and screening.

Early Evaluation and Screening

The early evaluation and screening of disputes coming into the system is important both from an administrative perspective and from the perspective of case management and the processing of those disputes.

"Evaluation" in this context does not refer to the consideration of the controversy on its merits, although it may lead to discussions along those lines. It refers to the notion of examining the dispute with a view to assigning it to the appropriate administrative and processing route. "Screening" refers to the exercise of making that assignment. In combination, these two techniques make a beneficial tool for the effective management and administration of cases in the system. Moreover, an evaluation and screening exercise involving the parties -- such as an ADR session at the ADR Centre -- creates another occasion where there is an early opportunity for settlement discussions. Some cases will settle simply as a result of that opportunity.

At an early evaluation and screening session -- an exercise which is ideal for the judicial support officer in the team concept we are advocating -- the parties will assess the various processing options that might be followed, having regard to such factors as the nature of the case, the relationship between the parties, the amounts and issues involved and so forth. What, in other words, is the appropriate "door" to go through and how do they best "fit the forum to the fuss" ? Once these questions have been determined, plans can be made to move the action along that chosen path.

Apart from emergency matters, such as injunctions without notice, there is little need for any judicial intervention in cases that are not defended. Somewhere between 50% to 55% of proceedings commenced are never defended [81] . A certain number of these are never proceeded with, notwithstanding the default. They simply languish in the system, a drain on storage and other resources.

There should be some onus on the party who invokes the court process, and on that party's counsel, to see that a proceeding is pursued in a reasonably timely fashion, or disposed of if it is not to be pursued.

Where an action has been settled, as we have pointed out previously, Rule 48.12 imposes an obligation upon a party to notify the Registrar in the event of a settlement "whether it is placed on the trial list or not". This obligation applies even to those actions which, although undefended, are ultimately settled by the parties. Counsel should not lose sight of that obligation.

In both the Toronto and Windsor case management projects, there is provision in the case management Rules for the Registrar to dismiss an action in certain cases of default. [82] . Where the plaintiff has not filed proof of service of the originating documents within the time required, the action will be dismissed in the absence of an order by a judge to the contrary. Under the Toronto Rules, where the defendant fails to defend within the time required by the Rules, there is a further provision for dismissal of the action by the Registrar where the plaintiff does not take the necessary steps to dispose of the matter after being notified of the default. These provisions have the effect of finalizing the matter for court purposes and for purposes of the client and lawyer.

ADR and Lawyers

Lawyers are "dispute resolvers" by training and profession. They are ideally suited to take advantage of ADR techniques for the benefit of their clients because of their skills as negotiators and as analysts of factual situations.

Professors Henry Hart and Albert Sacks, of Harvard Law School, aptly described these characteristics over 35 years ago, when they wrote [83] :

Closely related to [the] role as representative in forms of adjudication is the function as representative in the private settlement of disputes without litigation. This brings into play three distinct facets of [a lawyer's] training: skill in anticipating the probable outcome of litigation and so in estimating the bargaining strength of each side; skill in negotiation in finding the common ground of mutual advantage between the parties; and skill in the formal exercise of the legal powers which make settlement binding.

While there has been a certain inertia on the part of the legal profession in Canada in embracing the concept of ADR, acceptance appears to be growing. Many practitioners have become private ADR providers. Many are inserting "ADR dispute resolution clauses" in contracts they are negotiating on behalf of clients. Many are consciously directing their clients towards ADR as an effective means of dealing with their civil conflicts.

The Law Society of Upper Canada has recently completed an examination of the role of lawyers in ADR. A Dispute Resolution Subcommittee prepared a report and made a number of significant recommendations to the Law Society. It recommended that [84] :

  • the Law Society should set an example by employing alternatives to litigation whenever appropriate;
  • the Certification Board of the Law Society should give consideration to ADR techniques when setting out criteria for the certification of specialties in existing areas;
  • the Law Society should take steps to include dispute resolution education and awareness in the Bar Admission course, continuing legal education, and in Ontario law schools;
  • the Law Society should provide insurance to cover services provided by a member as arbitrator or mediator; and
  • the Rules of Professional Conduct should be amended to place a positive obligation on lawyers to inform their clients of alternatives to litigation and to respond to proposals for the use of alternative methods of dispute resolution.

ADR Recommendations

The Civil Justice Review recognizes the value of Alternative Dispute Resolution mechanisms as a supplement to traditional court-based litigation. We recommend that the panoply of ADR options be available to members of the public from both within and outside of the traditional court system. Specifically,

WE RECOMMEND:

  • That educational programs continue to be offered through public and legal organizations to expand the knowledge and acceptability of ADR among the public and the bar;
  • That the Law Society proceed to implement the proposals of its Dispute Resolution subcommittee and, in particular, its draft proposal to amend the Rules of Professional Conduct to place a positive obligation on lawyers to inform their clients of alternatives to litigation and to respond to proposals for the use of alternative methods of dispute resolution;
  • That standards be developed by the ADR profession, in conjunction with the Law Society of Upper Canada and other appropriate professional organizations, for the accreditation of ADR practitioners who provide service to the public either privately or through court-connected facilities.
  • That the concept of court-connected ADR be accepted in principle, with the determination of the appropriate form of service model and funding option to await the evaluation of the ADR Centre pilot project and, in family matters, the outcome of the family mediation policy discussions presently in progress.
  • That provisions similar to those relating to the Windsor and Toronto case management projects respecting the dismissal of actions in circumstances of default be extended on a province-wide basis; and,
  • That early screening and evaluation mechanisms be built into the caseflow management structure to be implemented in the province.

13.6 Pre-Trials, Settlement Conferences And Trial Management Conferences

Pre-Trials

A pre-trial is a meeting between a judge and counsel (sometimes, but not frequently, with clients present), usually at some point after the case has been listed for trial and before the trial. The concept of pre-trials was first introduced in Ontario in the 1970's. They are now obligatory. Trial dates are generally not assigned until a pre-trial has been held.

The purpose of a pre-trial is to consider,

  • the possibility of settlement of any or all of the issues in the proceeding;
  • the simplification of the issues;
  • the possibility of obtaining admissions that may facilitate the hearing;
  • the question of liability;
  • the amount of damages, where damages are claimed;
  • the estimated duration of the hearing;
  • the advisability of having the court appoint an expert;
  • the advisability of fixing a date for the hearing;
  • the advisability of directing a reference; and
  • any other matter that may assist in the just, most expeditious and least expensive disposition of the proceeding. [85]

The practice is for counsel to prepare and file pre-trial memoranda setting out their version of the facts, the legal issues to be determined, and the status of preparations for trial, with relevant documents, including medical and other expert reports attached.

Properly conducted and prepared for, the pre-trial is an extremely valuable tool in the processing of cases. Many cases are settled, either at the pre-trial or shortly thereafter. In many others, the issues are narrowed for trial.

"Properly conducted and prepared for" are the operative words, however. While most people are supporters of the concept of pre-trials in principle, there is an emerging sense among lawyers -- and even some judges -- that they may not be as worthwhile as they once were. They are seen in some quarters as having become simply a perfunctory exercise -- a necessary formality before one can obtain a trial date. At another level, they are felt to have eliminated the former practice of lawyers discussing cases and settling them after examinations for discovery, as counsel and parties postpone the settlement decision until they get a reading on "what a judge might think". On occasion, judges and lawyers suspect each other of not being properly prepared. Counsel fret about judges being too "inexperienced" in a particular area to be able to help the parties to settle. Judges fret about counsel not performing their necessary function of advising clients on the hard realities of settling cases.

There is no doubt that pre-trials absorb a great deal of judicial time, and that the time and cost of counsel preparing for them are considerable as well. Currently, in some areas, when judges are designated to conduct pre-trials they are assigned as many as eight pre-trials a day, to be dealt with at 45 minute intervals. It is not realistic to expect them to be able to prepare adequately for such a chore, and 45 minutes is an inadequate period of time to conduct a successful pre-trial. Limited resources make it difficult to alter this pattern, however.

The comments of an outside observer on these questions are instructive. The Honourable Mr. Justice D. W. Shaw, of the British Columbia Supreme Court, visited Ontario in October 1994 for the purpose of examining the various initiatives underway in the province respecting civil litigation -- including the activities of this Review. He talked to judges, court officials, members of the bar, members of the Attorney General's Ministry and to U.S. judges and experts who attended the Geneva Conference outlined earlier in this Report. In the course of those discussions he formed the following view with respect to pre-trials: [86]

I talked to numerous judges and counsel on how obligatory settlement conferences have fared. The overwhelming majority voiced the view that they have outlived their usefulness. They say that pre-trials were initially quite useful, but over the years their usefulness has considerably diminished. Briefs have become more a matter of form than substance, counsel are often ill-prepared and judges often simply 'split the difference' rather than put in the effort required to get to the heart of the matter. There is a strong perception that the pre-trials have become perfunctory and a waste of time and money. There are of course exceptions. Many judges still put considerable effort into this duty and many counsel do as well. And in the family area as well, obligatory conferences as part of the Toronto Family Case Management Project appear to be essential and successful.
I think that the Ontario experience raises significant questions. A great deal of judges' time, lawyers' time and clients' money are expended by having settlement conferences in all cases. Is it worth it? Is there a better way? While settlement conferences for some cases are undoubtedly useful, my view is that there should be some pre-requisite such as requiring the consent of the parties before we cut into the limited time we have for judging to do what good lawyers should be doing, that is, advising on and negotiating settlements.

We share the concerns expressed above about the present state of the pre-trial conference. However, we do not share the same sense of doubt. A properly conducted and prepared for pre-trial is not only possible -- it has worked before -- it is absolutely essential, in our view, for the effective operation of the civil justice system. A proceeding which arrives on the trial docket without having been pre-tried is simply a recipe for an inefficient and ineffective trial, and one which is a waste of scarce judicial time and supporting resources.

Rather than jettisoning a proven tool, we believe it essential to reshape that tool so that it re-acquires its usefulness in the modern system.

Under the pressures of present day litigation the purpose of the pre-trial has become blurred. Is is to settle the case? Is it to plan the trial? Is it simply an entry hurdle for obtaining a trial date?

It is all of these things, of course. One way of making the exercise more effective, in our opinion, is to make it clear precisely what the function is that is the focus of attention at the moment. While we do not agree with jettisoning the concept of a pre-trial, we believe that the name "pre-trial" should be jettisoned. We believe it should be replaced with two separate and recognizable concepts: a "settlement conference", and a "trial management" conference. In the case management context, these two techniques can be supplemented by other "case conferences", from time to time as appropriate, throughout the processing of the case.

Settlement Conferences

A settlement conference is exactly what the name implies. Its sole focus is the attempt to resolve the dispute, or at least parts of the dispute. Like any good pre-trial of the past, the settlement conference will feature an amalgam of "interest based" mediation and "rights based" pre-trial direction from the judge. What form that mix takes will depend upon the nature of the specfic case, and the skill and experience of counsel and the judge.

As a general rule clients are required to attend at pre-trials or settlement conferences in family law matters. This is not the practice, however, in non-family law litigation. There was some suggestion, during our consultation phase, that the lack of clients' presence at these proceedings leads to skepticism on the part of the public regarding the process. Whether that is true or not, we feel that it is useful, from the settlement perspective, for clients to be present with their lawyers, or at least readily available for purposes of discussion and the provision of instructions.

A settlement conference should be the step necessary before a proceeding is placed on the list of cases ready to be tried. At present, a proceeding may be set down for trial after the exchange of the pleadings, and 60 days thereafter it will be placed on the trial list [87] . While the practice is that matters are generally set down for trial after examinations for discovery have been held, and while the Rules of Civil Procedure provide that a party who has set an action down for trial may not take any further pre-trial proceedings without the consent of the Court, in reality the majority of cases find their way onto the trial list without being ready for trial. There they sit, as part of a recorded "backlog", when they are not "backlog" at all. The effect of this is, at a minimum, to skew the data upon which those in charge of managing and administering the system must base their decisions.

Only where the dispute has not been settled within a reasonable period of time after a settlement conference -- we suggest 30 days -- should it be listed for trial. Cases which have not been through this process are not sufficiently ready for trial to be placed on that list, and counted amongst the Court's inventory of matters to be reached for trial.

Once the case has been listed for trial, it should be scheduled for a trial management conference within a further 120 days.

The Trial Management Conference

At the trial management conference the case is prepared for trial, from the Court's perspective. Witness lists are exchanged and discussions held about how the evidence may effectively be introduced -- agreed statements (where possible), witness statments (if appropriate), or some combination of witness statements and oral examination and cross-examination. Chronologies, descriptions of the parties and others involved, corporate diagrams if relevant, admissions, compendiums of documents and how the documents are to be managed, joint books of legal authorities -- these form the grist of the exercise. Issues are defined. And finally, a reasonable and achievable trial time is estimated.

Trial dates should not be assigned to cases until after a trial management conference has been held.

Trial management conferences are becoming more common. Experience indicates that they can play a very effective role in streamlining and optimizing the use of trial time. While there is clearly some upfront cost in this process -- for the lawyers in terms of preparation and for the client in terms of legal fees -- the ultimate savings that would flow from its broader implementation to the client in fees and to the administration and public generally, in terms of the demand on public resources, would be quite tangible in our view.

Settlement conferences and trial management conferences are also an imposition on judicial time. Some people wonder whether it makes sense to divert judges' efforts from trials for those purposes [88] . To this concern we offer the following comments.

First, if a potential trial can be averted altogether by settlement and a judge can play a role in helping the parties to reach that point, the judge's time has been valuably spent. It is part of the function of judges to assist people in resolving their disputes. To the extent that a trial has been avoided, the potential trial time is freed up for other cases that must be tried. Where a lengthy trial would have ensued, the benefits to the parties and to the system, in terms of time and money and resources saved are magnified.

Secondly, an effective trial management conference will result in similar "savings". Trials are shortened. The parties' cases are more effectively presented. The judge is able to render a decision more quickly. Again, the negatives of utilizing judge time in this fashion are outweighed by the advantages, in our view.

Finally, however, we do not believe it is necessary for judges alone to perform these functions. There is no reason why judicial support officers, with proper training and experience, cannot participate in some settlement conference and trial management conference processes. With judges and judicial support officers working within the framework of a caseflow management and team concept, the need for judicial input where necessary can be preserved. In some cases, it may not be necessary at all.

RECOMMENDATION

We recommend,

  • that the concept of "pre-trials" be replaced by two distinct processes, the "settlement conference" and the "trial management conference";
  • that cases not be listed for trial until after a settlement conference has been held and no settlement reached within 30 days of the settlement conference; and,
  • that cases not be assigned trial dates until a trial management conference has been held.

The establishment at a trial management conference of an agreed trial procedure, and, in particular the establishment of a reasonable estimated trial time, is a critical element in the smooth operation of the overall trial schedule. We heard almost universally from the Bar, and to some extent from the Public and the Judiciary as well, that fixed trial dates -- or something as close as possible to fixed trial dates -- were a necessity. Fixed dates for trial, or even those remotely close to being fixed, cannot be provided unless there is some degree of certainty in the expected disposition of cases.

Of equal importance to the establishment of these parameters for trial, then, is the reasonable adherence to them by counsel and their reasonable enforcement by the trial judge. The trial judge must be willing to do this, and must have some sanction in support of that willingness. While it must be exercised with great discretion and care, we believe that cost sanctions are appropriate.

RECOMMENDATION

We recommend that consideration be given to amending the Rules of Civil Procedure to authorize a judge to impose cost sanctions on counsel who unreasonably delay the time of trial beyond the agreed estimated time by their unreasonable conduct of the trial or who have given an unrealistic estimate of the trial time needed at the trial management conference.

It may be that there are simply too few resources in the system to justify this overall settlement conference/trial management approach for all cases, and that there should be some monetary or other limitation below which a case does not qualify for both settlement conferences and trial management conferences. This concept needs to be examined further. As the results of implementation of the Simplified Rules proposal are monitored and evaluated, an assessment can be made of what, if any, settlement or trial management process is required.

13.7 Discoveries

Introduction

The stage of a lawsuit between the delivery of the pleadings and the pre-trial or settlement conference is typically referred to as the "discovery phase" of the litigation.

In the pleading stage the parties exchange documents setting out their claim and defence. The issues in the lawsuit are defined. Following the completion of this stage, the parties have an opportunity to learn more about the each other's case through the disclosure of documents and the pre-trial examination of the party or parties adverse in interest.

Rules 30 to 32 of the Rules of Civil Procedure, in particular, lay out the specific requirements which mandate the disclosure required. Broad and complete disclosure is the standard. When the Rules of Practice were revised in 1985, a primary focus of the revisions was to broaden the scope of pre-trial disclosure and discovery. The theory behind this concept seemed very sound: the more complete the pre-trial disclosure, the more likely it was that settlements would occur.

The Purpose of Discovery

The primary goal of the discovery process is to ensure open and full disclosure in order to facilitate settlement efforts and to make the trial process more effective and fair. More specifically, examinations for discovery serve essentially the following purposes:

  • to enable a party to assess the strengths and weaknesses of the other party's case through documentary production and oral examination of the facts and information which the other party has about the case;
  • to enable a party to assess the strengths and weaknesses of its own case;
  • to obtain admissions which may be used at trial, and which will dispense with the time and expense of lengthy proof at trial;
  • to use at trial, either as part of the evidence to be led or for purposes of impeaching the testimony of the other party; and, finally, as a result of the foregoing; and
  • to promote settlement.

Oral Discovery: Growing Concerns

In the popular jargon of the legal profession, the term "discoveries" is generally used to refer to the oral examination of the parties. While examination for discovery may take place through written questions and answers, this method is rarely used. Oral examinations are conducted under oath and a written transcript of that examination obtained.

The examination for discovery of any party adverse in interest is considered, by the bar and others, to be a critical feature in the conduct of the litigation. Indeed, the discovery and disclosure process does perform an important function in preparing cases for trial or settlement. The question we have been forced to ask, as a result of the views expressed by many in our consultation stage, is whether the discovery process is now out of hand. Has it become too cost-prohibitive and delay-engendering to continue in the present fashion without the imposition of some form of curb?

The process can certainly be time-consuming and correspondingly costly. We were provided with a great many anecdotes to the effect that oral examinations are becoming longer and longer. In addition to the time spent in the examiner's office for the examination itself, time is required to schedule the examinations at mutually convenient times (something which becomes more difficult in multi-party suits). Time is required to prepare witnesses for the examination. Time is spent travelling to and from the examination. Time is spent reporting to clients. Time translates into money. The purchase and analysis of transcripts of the evidence translates into more money. Where undertakings are given at the time of the examination to obtain information which is available but not in hand, more time is involved in responding to those undertakings. Occasionally, the responses to the undertakings may necessitate a further examination.

In addition, there are a significant number of motions relating to discovery that are brought before the courts. These motions may be substantive in nature -- asking the court to determine the appropriateness of the questions asked at the examination -- or they may be more purely procedural -- for example, compelling the answers to undertakings. In either case, they are time-consuming and expensive, and they occupy needed courtroom space. While there is no reliable data available to indicate the percentage of all motions that are discovery-related, the Toronto Masters estimated that 25% of all motions brought before them involved discovery issues.

In the COSTS chapter of this Report, we have attempted to assess the cost to a litigant of an average 3-day trial. Our calculations were based on what we felt was the not unreasonable assumption that such a trial would have involved at least two days of examination for discovery, plus preparation, for a total of 25 hours. In addition we estimated a further 10 hours of counsel time involved in documentary disclosure. At an average cost of $200 per hour for legal fees, the discovery part of the process, excluding any motions or other steps that might relate to it, could result in legal fees alone of $7,000. These are substantial costs for a client to bear.

The Simplified Rules Initiative

In 1993, the Simplified Civil Rules Sub-Committee was formed at the request of the late Chief Justice Callaghan and the former Deputy Attorney General, George Thomson. The Committee was formed in response to a growing concern over the cost of litigating relatively modest lawsuits.

The dilemma is significant, both for lawyers and for their clients: how does the system preserve the value and necessity of disclosure in civil cases while at the same time keeping the expense of the litigation process within reach of litigants and enabling lawyers to work within cost-effective parameters?

The Simplified Rules Subcommittee concluded that a more simplified procedure is required for cases involving money or property claims where the amount in issue does not exceed $40,000. Central to its proposal is the recommendation that oral examinations for discovery be eliminated in such cases.

We deal with Rules and the Simplified Rules proposal separately, in Chapter 14. Suffice it to say here that, while we recognize the controversial nature of this recommendation, we have concluded, on balance -- as did the Subcommittee -- that the proposal should be supported.

The Scope of Discovery

The broadened scope of examinations for discovery in cases that will not be affected by the Simplified Rules proposal remains a concern, in our opinion. As stated earlier, the Review heard many accounts of the growing length of examinations and the expression of serious doubts about the value of these prolonged examinations.

While the 1985 amendments to the Rules had the commendable intent of eliminating "trial by ambush", they may well have led, instead, to "trial by information landslide". The 1985 amendments considerably broadened the scope of the examination by allowing:

  • a much wider range of questioning
  • cross-examination of the person being examined (except as to credibility);
  • discovery of evidence;
  • cross-examination on the affidavit of documents;
  • discovery of the names and addresses of potential witnesses and persons having knowledge of the matters in issue;
  • discovery of the findings, opinions and conclusions of experts retained by a party;
  • discovery of the existence and contents of any relevant insurance policy.

In addition, the explosion of information sources and available data as a result of the growth in technology has led to an enormous increase in the material available for discovery purposes. This development, in combination with the broadened discovery rules, has made it increasingly difficult to cope economically with the scope of discovery.

In a case managed environment, there may be opportunities in the course of the case conference process to streamline the discovery process. The current situation nevertheless requires a reassessment of the Discovery Rules and the Review invites comments, pending its final Report, on the possibility of re-entrenchial the scope of discovery and of other possible measures such as the elimination of cross-examination on the affidavit of documents.

RECOMMENDATION:

We recommend that consideration be given, by the Rules Working Group of the Implementation Team, to methods of improving the examination for discovery process in ways that will make it more economically effective while at the same time preserving its essential disclosure principles. Some areas to be considered in this exercise are:

  • The possible re-entrenchment of the scope of discovery to pre-1985 limits
  • Removal of the right to cross-examine at discovery
  • Time parameters for the conduct of oral examinations

13.8 Motions

Given the current state of the civil justice system, and the pressures on it, court time is a precious commodity. There are two aspects to this. First is the demand for the use of courtroom space, and the need to utilize that space effectively. Second is the demand upon the allocation of judicial resources, and the need to allocate those resources effectively. In the Chapter of this Report dealing with BUILDING PRESSURES AND TRENDS, we have noted an increase in the amount of time that courtrooms have been utilized over the past 5 years [89] . While court time is typically thought of in terms of trials (civil or criminal), there is a substantial part of the court docket in civil matters and a substantial amount of space that is dedicated to the hearing of motions.

The number of motions dealt with by the courts over the past 5 years has increased considerably -- by more than 100% in general civil matters, and by more than 150% in family matters. [90] ?

A "motion" in a civil case is a request to the Court for a decision on an issue or procedural point which occurs as part of the case. The decision does not normally dispose of the whole case (and is known as an "interlocutory" decision, and the motion as an "interlocutory" motion when that is the case), although it may do so [91] . The nature of the relief sought can be quite varied, as motions relate to all issues that can arise in the course of the litigation except for the judgment itself.

In Family Law matters, interim motions are of critical importance as they generally determine the positions of the parties while they await the outcome of the final litigation, particularly with respect to matters of custody, access and support. Orders obtained on an interim basis are rarely changed at trial. A separate part of this report will recommend specific changes to the Family Law process.

We have been advised by the Bar that the average cost, in terms of legal fees, to bring a contested motion to the court is in the neighbourhood of $2,000.

Members of the Bar also targeted Motions Courts as the largest waste of a lawyer's time in the range of court proceedings. They sit around and wait for their case to be called. The cost of this idle time must either be passed on to their clients, thus inflating the expense of the lawsuit to the litigant, or absorbed by the lawyers, thus reducing and sometimes eliminating the profitability of the step for them.

In the majority of Motions Courts around the Province, it seems that the practice is to schedule all routine motions to a particular day of the week or month, and to make them all "returnable" at the same time. The Rules of Civil Procedure also prescribe where the motion is to be heard -- generally in the court in the jurisdiction where the office of counsel for the responding party is located [92] . It is not unusual to have motions lists before a single judge containing 25-50 matters to be dealt with in a single day. All parties are summoned to the court at the same time, regardless of their placement on the list. Parties who are not located close to a court house incur travel costs or agency fees to retain counsel to appear on their behalf.

Many complained to us during the consultation phase about abuses of the motions process: about the significant cost; about the waiting around; about judges not being prepared because they have not read the materials (lawyers and clients complained about this); about having to spend hours reading the materials in advance, only to have lawyers or clients adjourn the motion at the last minute, thus rendering that time wasted (judges complained about this); about the process being utilized for unnecessary motions, often brought for tactical reasons simply to wear the other party down; and just generally, about the inefficiencies of the system.

On the other hand, there is a recognition that systemic delay in bringing cases on to trial creates a situation where more interlocutory matters need to be determined by the Court. This leads to the continued pressure of a rising rate of motions.

We are confident that the system of caseflow management which we are recommending be implemented will lead to fewer motions being brought than might otherwise be brought in a system that continues to be non-case managed. The greater familiarity of the judge with the case, and the opportunity presented by case conferences for parties to resolve outstanding matters -- including matters relating to procedure and the logistics of the case -- should lead both to fewer motions and to the more expeditious disposition of those which do proceed.

Unnecessary motions -- and the unnecessary opposition to motions -- need to be discouraged, however. This is particularly true until such time as case management systems have been put in place, although the principle will continue to be important thereafter.

There is provision under the Rules of Civil Procedure for the Court to impose cost sanctions upon parties, and upon their lawyers, where the motion ought not to have been brought or ought not to have been opposed, where costs have been unreasonable or wastefully incurred, or generally where the conduct of a party has unnecessarily prolonged a proceeding [93] . We were repeatedly urged by counsel to recommend that more widespread use of these sanctioning powers be made.

RECOMMENDATION:

We recommend that courts be more vigilant in exercising their cost sanctioning authority under the Rules in cases of abuse regarding motions and motions procedures.

Even where unnecessary motions have been eliminated, however, there is still a need to manage the hearing of those which will continue to be brought in a more cost-effective way. Some of the suggestions that the Review has heard include:

"Purging the list":

Purging the list is a practice where the presiding judge attempts at the outset of the day to determine which of the matters scheduled for the day will be proceeded with. It is frequently the case that one side will be seeking an adjournment and a practice has developed of granting the adjournment if the request is reasonable. Similarly, it is often the case that the parties have resolved the matter in the intervening time between the commencement of the motion and the hearing date. Accordingly, some judges will canvass the court to determine if there are any consent adjournments or matters that can be disposed of by consent. Once the judge determines the matters that will require argument, he or she can determine the approximate time required for each matter. Counsel can then be invited to re-attend at a later appointed time. Unproductive and costly waiting time can be significantly reduced in this fashion.

Staggered Start Times:

As set out above, the practice is generally to have all motions scheduled to come before the Court at the same time. Why could "morning lists" and "afternoon lists" not be scheduled ? Such a practice would break up the list and at least minimize some of the waiting time. There is a risk of some "judicial downtime" and some "court downtime" in such a proposal, we recognize, because lengthy motions lists sometimes collapse as a result of last minute adjournments or settlements. Proper scheduling techniques can minimize this risk, however.

Counsel can be required to notify the court by early afternoon of the day before the motion is to be heard whether it is to proceed or not. The establishment of time estimates, compliance with those estimates by counsel, and their enforcement by the judiciary when counsel do not comply, would facilitate the scheduling process, and allow the administration, with experience, to gage the appropriate number of matters to schedule in order to ensure a viable list. Finally, most judges have a sufficient amount of work to do, in the form of reserved decisions, paperwork procedures and administrative duties, that they will not be sitting idly around while awaiting the resumption of Motions Court if a list collapses.

The concept of staggered starting times, along with that of "purging of the list," we believe, can go a long way towards minimizing the waste of time and resources which now too frequently accompanies the process of dealing with motions [94] .

Limiting the Time for Argument:

As part of the motion process, a party must prepare a Motion Record and serve it on the opposing party prior to the hearing of the motion [95] . The judge receives the Motion Record in advance of the hearing and accordingly has an opportunity to review the written materials outlining the nature of the relief requested and the materials in support of the request, in advance. Judges and lawyers have both indicated to us, during the consultation phase, that oral argument on Motions is frequently repetitive of the written material and sometimes repetitive of itself. It takes too long, and counsel do not always abide by their time estimates. Judges do not require counsel to adhere to their time estimates often enough.

In the Supreme Court of Canada oral argument is time limited. It has been suggested that this rule be applied in the lower courts as well.

Limiting the Material Filed:

Anecdotal evidence suggests that the volume of material filed in support of motions is growing. Technology has played a role in this development, as it allows for easy storage and transmission of vast amounts of information. The increased amount of material makes it more difficult for the presiding judge to read all materials in advance and adds to the length of time required in court as counsel must spend more time educating the court about their case. In the Family Law area, the volume and content of affidavit material filed in support of motions for interim relief is a cause of particular concern and has led to suggestions for limited or standard form affidavits. In the Court of Appeal, written argument is limited by Practice Direction of the Chief Justice to no more than 30 pages without permission of the Court [96] .

RECOMMENDATION:

We recommend,

  • that limits be placed on the length of written submissions to be filed on motions and applications, such limits to be adhered to unless the court grants an exception;
  • that the Rules Working Group of the Implementation Team examine ways of reducing the volume of paper put before the court on motions and applications; and further,
  • that the Rules Working Group consider the advisability of staggered starting times for Motions and Applications and the practice of "purging the lists" as means of reducing the time and resources attributable to those procedures.
Use of Tele-Conferencing and Video-Conferencing

Other methods of reducing the necessity for in-person attendances by counsel on Motions include tele-conferencing and video-conferencing. The Rules of Civil Procedure presently permit Motions and pre-trials by conference telephone [97] . There are no provisions as yet for video-conferencing.

These type of proceedings save attendance and travel time, and would result in savings being passed on to clients. Their use seems particularly appropriate for the courts in the Northern Ontario and other locations where travel distances are significant. Video - conferencing technology which is currently available, would overcome any concerns that stem from the lack of visual contact.

We have recommended elsewhere in this Report that steps be taken to introduce video-conferencing technology into the system.

13.9 Venue

"Venue" is the legal expression used to describe the place where the trial of a law suit is held.

There are currently 50 locations across the Province where the Ontario Court of Justice (General Division) presides, and, with few exceptions, a plaintiff is entitled to choose any one of them as "the venue" for the case [98] .Normally, all motions and preliminary proceedings leading up to the trial, including the pre-trial, are dealt with in the same location.

Family Law cases are the primary exception to the general rule that the plaintiff chooses the venue. In family law matters involving claims for the custody of children, the petitioner or claimant must name as the place for trial the place where the Court normally sits in the county in which the child normally resides [99] .

Parties can apply to the Court to change the place of trial. However, such an order will only be made where the party seeking the change can demonstrate that the balance of convenience substantially favours another venue or that a fair trial is not possible in the place named [100] .

The Court has no power under the Rules of Civil Procedure, or by statute, to change the place of trial on its own initiative. Nor can such a change be ordered without the consent of the parties, except on the foregoing basis, although in one case a judge has ruled that a judge at a pre-trial conference has the authority to order a change of venue at his or her own initiative, without the motion or consent of either party [101] .

Needless to say, the right of plaintiffs to choose the county in which they wish to have their cases tried is an important right, but its relatively unchecked nature introduces a variable into the system which has a significant impact on the allocation of judicial and administrative resources throughout the Province. In Toronto, for instance, it is estimated that more than one-third of the Region's caseload consists of actions and proceedings in which neither the subject matter nor the parties have any substantial connection with Toronto.

Historically, counties were the juridical unit in Ontario, and the county towns became the centre for the administration of justice. Indeed, the Province did not assume responsibility for the overall administration of justice from the counties until 1968. Changes in the demographics of the province, and the institution of regionalization in 1990, have further diminished the importance of the "county" court structure. Urban centres have grown relentlessly, and in some instances, the traditional county has been surpassed in size and importance by other municipalities.

One of the effects of these changes is that the demands on courtroom facilities and resources across the province are uneven. There are communities in which the facilities are chronically overtaxed. In other communities, the facilities are sometimes overtaxed and at other times, under-utilized. In still others, the facilities are regularly under-utilized.

All courtrooms may be in use and the judiciary completely occupied in one particular community, yet a judge and courtroom may be available in a nearby community within a relatively short commuting distance. At present, while they have control over the allocation of judicial resources in such circumstances, the Chief Justice and the Regional Senior Justices have very little ability to deal with the disparity of demand on courtroom space and facilities.

Why should the Regional Senior Justice, in his or her discretion, not have the power to order that a case waiting to be tried in the busy centre with the clogged list, or an application or motion that cannot be reached, be transferred to be dealt with in the idle courtroom of the nearby community ? We can see no reason in today's mobile society why this should not be the case. While there may be some added expense and inconvenience to the parties, or to their lawyers, in travelling the extra distance, such additional costs as there may be are more than offset, in our view, by the ability to have the trial completed earlier and the general ability to augment the maximum utilization of available resources. Every day people commute long distances to work, or travel hither and yon for much less significant reasons than the trial or other disposition of their legal proceedings. Why not for that purpose as well?

Any difficulties arising because of distance, expense, location of parties or witnesses -- and all of the traditional "venue" sorts of considerations -- can be taken into account by the Regional Senior Justice in exercising the discretion whether or not to order the change.

A proposal was previously submitted to the Rules Committee recommending that the Regional Senior Justices be given such authority. It is apparently still under consideration. The Review recommends the adoption of such a Rule.

RECOMMENDATION

We recommend that the Rules of Civil Procedure be amended to provide Regional Senior Justices with the discretionary authority to order, on their own initiative or at the request of one or more of the parties, that a proceeding be transferred from one court centre to another within the same Region. We further recommend that authority extend to the transfer of a proceeding between court centres between Regions, with the concurrence of the Regional Senior Justices of each Region in question.

The subject of "venue" raises a number of other important and difficult issues regarding the ability of litigants to determine where their proceedings should be dealt with, and by whom, and about the allocation of judicial and court resources in the province generally. There presently exists a Committee, established at the instance of the Deputy Attorney General, and consisting of representatives of the Ministry, the Bar and the Judiciary, which is examining these questions. Its Report is expected in the spring of 1995. The Review will await receipt of a copy of this Report before making further recommendations regarding the question of venue. Those recommendations will be outlined in our Final Report, to be published later this year.

13.10 Enforcement

The term "enforcement" used by the Ministry of the Attorney General to refer to a cluster of activities formerly carried out by the Sheriff's offices. More recently, the Family Support Plan has begun to exercise these functions as well.

These activities include:

  • Searches - of Names Registered against the title to real property to determine if there are outstanding judgment or liens;
  • Processes - the personal service of court documents upon people;
  • Executions - Writs of seizure and sale, Notices of expiry, Writs of possession filed and Levies conducted, Garnishments and generally all steps taken to enforce the judgment;
  • Trust Account management - matters pertaining to payments received and disbursed to creditors.

The search function has recently been automated and appears to be functioning well at this time. Recommendations with respect to cash management set out elsewhere in this Report address the Review's concerns about the financial aspects of the enforcement operations. This chapter will limit itself to the enforcement of judgment and process serving issues.

The Enforcement of Judgments

With respect to the enforcement of judgments, it comes as a surprise to some litigants that, save for support and custody orders, the courts do not enforce their own orders. In reality, the order belongs to the party that obtained it, and it is up to that party to determine which course of action it wishes to pursue in having that order enforced. Additional fees are payable to the court office for each separate enforcement activity undertaken.

The Review heard from users of the system that there is a lack of consistency between various courts with regard to the enforcement procedures available. The enforcement processes in Small Claims Court are relatively straightforward and the process is easily understood. General Division enforcement procedures, which are designed to produce the same result, are considerably more complex. It is not readily apparent to us why this should be so in principle.

Similarly, the relationship between the originating process and the resulting enforcement procedure does not appear to be well thought out. Landlord and Tenant matters are dealt with in a rather simplified manner; it is the one area of the General Division where significant members of unrepresented persons are able to proceed on their own. The forms are of the "fill-in-the-blank" variety. Obtaining a writ of possession that can remove a tenant who has not paid his or her rent is a relatively uncomplicated, albeit paper-intensive process. Where a judgment obtained is for the payment of the rent arrears, however, all of the complex processes required to enforce General Division orders come into play.

The range and depth of enforcement procedures in the different courts produces further inconsistencies. In Small Claims Court, a judgment debtor can be summoned to a hearing to be examined for the reason of nonpayment [102] .Where the debtor on whom such a notice of examination has been served fails to attend the hearing, the court may issue a warrant of committal to have the debtor jailed for a period not exceeding 40 days. The practice is initially to issue a committal letter warning of the possible committal unless the debtor attends before the court to explain why the warrant should not be enforced [103] . While the warrant is not issued for the non-payment of the judgment but for the presumed contempt for not appearing for the judgment debtor examination, this subtle distinction is lost on most debtors. In no other court can access to such a drastic remedy be so readily obtained.

For the fiscal year 1993-94, 2,151 committal letters were issued and 1,024 subsequent committal warrants were issued [104] . The Review has no information at this time as to how many debtors may have been actually detained as a result of this enforcement process but we have serious misgivings as to whether or not this practice should be continued.

It has been suggested that the enforcement of orders could be privatized and that the considerable resources currently expended by government in this area could be diverted to the resolution process. A preliminary analysis suggests that, in the cluster of enforcement activities, only the search function generates significant revenues over and above the cost of providing the service.

The most contentious area of enforcement appears to be the Family Support Plan. This is the one exception where the Court actively enforces all orders for the support of spouses and children. We comment further on this programme in the Family Law section of this report.

There are private bailiffs that are regulated by Statute and are licensed by the Ministry and Consumer Relations. There are concerns, however, that these may not be the appropriate agents to enforce all court orders and that some of these orders, for example, eviction orders in landlord and tenant matters, are more properly served by officers of the court.

Process Serving

Currently the rules of Civil Procedure require that a substantial number of court documents be served personally. The requirement of personal service has resulted in some concerns both with regard to the costs of this service and the level of service provided.

Personal service of documents is a critical feature of our litigation process. Because of the requirement of personal service of initiating documents, our system of adjudication allows default judgment for a certain class of claims to be dealt with administratively. Since the consequences of being served with a document and of not responding to it can be severe, personal service is regarded as the most effective way of ensuring that a party has indeed received notice of a claim. With the advent of technology and other forms of message delivery, e.g., courier service, there may be other lower cost and equally effective methods of service.

In the North of the province, the requirements of personal service can add significantly to the cost of litigation as the litigant must pay a fee for the service and a kilometre allowance for the distance actually travelled [105] . Where these distances are great, the cost impact increases accordingly.

As a result of a decision of the Ontario Public Service Labour Relations Tribunal process servers, who formerly worked on a fee basis for the Ministry of the Attorney General, were found to be civil servants for labour relations purposes, and their employment relationship was altered to make them government employees. Workload indicators were developed to determine the number of persons required.

We were advised that in the North the allocation formula has resulted in an insufficient number of persons being available to provide adequate service. We were also advised that work volumes were not sufficiently large enough to encourage the development of a private sector option.

Elsewhere, there did not appear to be the same complaints with respect to cost or with respect to service. This was another area where it was suggested that the private sector could provide this service at a lesser cost to government. Proposed Criminal Code amendments [106] will allow for the service of subpoenas by persons other than peace officers which may create other opportunities for private sector service of documents.

In principle, the Review is of the view that government should not be providing services where these may be readily available elsewhere.

The Review has no specific recommendations with respect to these enforcement topics at this time and will defer these to the Final Report. We invite further comment on these issues and, in particular, with respect to the following:

  • The appropriateness of existing enforcement mechanisms; in particular, the use of warrants of committal in Small Claims Court;
  • The level of service provided by the courts and the degree to which the public is well served;
  • The requirements of service and options to personal service in particular; and
  • The extent to which these services should be provided by the courts.


Footnotes:

[46] Taken from Justice in Ontario: A change of Pace - Evaluation of the Case Management Pilot Projects, prepared by QUINDECA Corporation, October 1994, at pp. 31-33 [hereinafter "Quindeca Report"].

[47] The Bottom Lines, Court Reform Task Force, Ministry of the Attorney General, June 1990

[48] i.e., a judge appointed by the federal government under section 96 of the Constitution Act, 1982, R.S.C. 1985. Judges of the Ontario Court of Justice (General Division) are "section 96" judges.

[49] Report of the Joint Committee on Court Reform to the Civil Justice Review on Case Management, May 1994, supra, note 14 at pp. 8-12; see also, The QUINDECA Report, supra, note 47, pp. 10-15.

[50] supra, note 10, at pp 10-11.

[51] The QUINDECA Report, supra, note 47, pp.10-11.

[52] supra, note 10, at pp. 10-11.

[53] Ibid, pp. 10-11.

[54] The QUINDECA report, pp. 29-33.

[55] See submission of the Joint Committee on Court Reform to the Civil Justice Review.

[56] Case Flow Management: An Assessment of the Ontario Pilot Projects in the Ontario Court of Justice, A Report to the Courts Administration Division, Ministry of the Attorney General, November 1993.

[57] id., pp. 26-27.

[58] QUINDECA Report, supra, note 47.

[59] The QUINDECA Report, supra, note 47, at p. 30.

[60] id., Executive Summary, p. 8.

[61] supra, note 47, pp. 14-15.

[62] id., pp. 15-25.

[63] supra, note 47, at p. 16.

[64] infra, Chapter 13.3

[65] Based on Ministry of the Attorney General Workload Indicators and Budget Allocation Process, Program Development Branch

[66] see Chapter 14

[67] Zuber Report, supra note 2, pp. 11-12

[68] Reply of the Ontario District Court Judges Association to the Report of the Ontario Courts Inquiry, p. 13.

[69] supra, note 45, pp. 15-18

[70] The idea of the multi-door courthouse was developed by professor Frank Sander, Bussey Professor of Law and Associate Dean, Harvard University. It has been experimented with in numerous American states, including projects at Cambridge, Massachusetts, Tulsa, Oklahoma, Houston, Texas and Washington D.C. See, F.E.A. Sander (1976) "Varieties of Dispute Processing", 70 F.R.D. 111; S.B. Goldberg, F.E.A. Sander and N.H. Rogers, "Dispute Resolution", Little, Brown and Company, 1992, at pp. 432-433. F.E.A. Sander, (1985) "Alternative Methods of Dispute Resolution: An Overview," 37 U.Fla. Rev.1; F.E.A. Sander, "Dispute Resolution Within and Outside the Courts: An Overview of the U.S. Experience", Cochrane ed., Attorneys General and New Methods of Dispute Resolution (1990), at pp. 19-23.

[71] taken from a paper entitled "Alternative Dispute Resolution and Canadian Courts: A Time for Change", prepared for presentation at the Cornell Lectures, Cornell University, July 1994, by the Honourable Mr. Justice George Adams and Naomi L. Bussin, at p. 31 [hereinafter "Adam & Bussin"]; see, Sander, "Dispute Resolution Within and Outside the Courts: An Overview of the U.S. Experience", supra, note 71 at pp. 19-21.

[72] A favourite expression of Professor Frank Sander, supra, note 71.

[73] Adams & Bussin, supra, note 71 at p. 14; taken from Stephen B. Goldberg, Frank E.A. Sander and Nancy H. Rogers, Dispute Resolution, supra, note 71 at p. 8.

[74] See D. Paul Emond, "Alternative Dispute Resolution: A Conceptual Overview", Emond ed., Commercial Dispute Resolution: alternatives to Litigation (1989), at p. 19.

[75] The Arbitrations Act R.S.O. 1990, chap. A.24, as amended.

[76] Adams & Bussin, "Alternative Dispute Resolution and Canadian Courts: A Time for Change", supra, note 71 at p. 3.

[77] [1989] 2 S.C.R. 1326 at 1337 (S.C.C.).

[78] See generally, C.E. Hart , "Alternative Dispute Resolution", The Advocates' Brief, Vol. 6, No. 5, December 1994; see also Practice Direction Concerning Alternative Dispute Resolution Pilot Project in the Ontario Court of Justice (General Division), (1994) 16 O.R. (3d) 481.

[79] id., Practice Direction, Form 4.

[80] C.E. Hart, supra, note 79.

[81] The Bottom Lines, supra, note 48.

[82] Toronto Case Management Rules 2.06, 2.07 and 2.08; Essex Civil Case Management Rules 6.1, 7.1, 8.1 and 9.1.

[83] H.M. Hart J. and A.M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (1959) Cambridge, Massachusetts: Unpublished Tentative Edition, p. 205.

[84] "Alternatives", Final Report to Convocation, The Law Society of Upper Canada Dispute Resolution Subcommittee of the Research and Planning Committee, (February, 1993); as referred to in Adams and Bussin, supra, note 71, at p. 27.

[85] Rule 50.01.

[86] Report of the Honourable D.W. Shaw to the Honourable Chief Justice Esson and the Honourable Associate Chief Justice Campbell of the British Columbia Supreme Court, November 30, 1994. Cited with the permission of the author.

[87] Rule 48.10.

[88] This concern was reflected in the Report of the Honourable D.W. Shaw, supra, note 85.

[89] See Chapter 4.3.

[90] Ministry of the Attorney General, Court Statistics Annual Report, Fiscal Year 1993-1994, supra, note 65.

[91] This is the terminology employed in the Zuber Report, supra, note 2, (see Glossary of Terms, p. x), and avoids the confusion between "motions" and "applications", which have different technical meanings and which attract different procedures.

[92] Rule 37.03 (1).

[93] See The Courts of Justice Act, R.S.O.c. c-43, s. 131, and Rules 57.01, 57.03 and 57.07.

[94] We have not dealt with "Applications" in this section. An Application is like a Motion in the sense that it involves a presentation to the Court by way of written evidence and materials, accompanied by (normally) oral argument. It is different from a Motion in the sense that the decision rendered is like a judgment disposing of the entire case. Applications in family law matters have increased substantially in family law matters over the past 5 years, but Applications in other matters have decreased substantially: see the Court Statistics Annual Report, Fiscal Year 1993-1994, supra, note 65, of the Ministry of the Attorney General. Applications are disposed of in the "Motions Court" setting, however, and therefore from part of the workload which must be dealt with in this sort of proceeding.

[95] Rule 37.10 (1).

[96] (1993) 13 O.R. (3d) 67.

[97] Rules 37.12 and 50.08.

[98] Rule 46.01.

[99] Rules 69.17 and 70.05.

[100] Rule 46.03(2).

[101] Campbell v. Stainton, (1985), 50 O.R.(2d) 283 (H.C.J.).

[102] Small Claims Court Rules, Rule 21.10 (4).

[103] Small Claims Court Rules, Rule 21.10 (9).

[104] Information Planning and Court Statistics.

[105] O. Reg. 294/92 as am.O.Reg. 431/93.

[106] Bill C-42 s.72.