List of Recommendations
There is a lengthy series of recommendations made throughout this First Report designed to move the civil justice system towards the goals we have envisioned. For ease of reference, they are gathered here by chapter and under the various headings where they are found in the Report. They begin in Part ll.
CHAPTER 9: CHANGING ATTITUDES, ROLES AND RESPONSIBILITIES
- That the Ontario Courts Management Advisory Committee and the eight Regional Courts Management Advisory Committees develop a cohesive structure amongst themselves for purposes of co-ordinating and enhancing their advisory functions across the province.
- That these Committees be recognized and accepted by the Bench, the Ministry, the Bar and the Public as an important branch of the justice structure in Ontario, and that efforts be made to ensure that their mandate to consider and recommend policies and procedures to promote the better administration of justice and the effective use of human and other resources in the public interest, be duly carried out.
- That the practice of inviting representatives of Courts Administration to regional Bench and Bar meetings be extended throughout the province
CHAPTER 10: CREATING A RESPONSIBLE JUSTICE SYSTEM STRUCTURE
That steps be taken immediately to establish a single issue task force -- comprised of representatives of Government, Judiciary, Bar and Public -- mandated to develop an implementable proposal for the creation of a unified administration, management and budgetary structure for the justice system in Ontario.
Such a structure must have clear lines of responsibility and accountability for all administrative, all financial and budgetary, and all operational matters within the system; and it must possess at least the following minimum characteristics:
- It must be consistent with, and guarantee, the preservation of an independent judiciary.
- It will feature a governing body or council which is broadly accountable and representative of the Public, the Judiciary, the Government and the Bar.
- It will ensure the preservation of an independent judiciary; any decisions affecting the independence of the judiciary will require a majority vote by the judges on the governing body of the new structure.
- The role of the governing body -- which, as noted, will include government, bar and public representatives as well as judges- - will be primarily of a supervisory and management nature. Day-to-day and direct operational responsibility for the system will be assigned to full time professional court administrators and their staff.
- The new system must be properly and adequately funded from the outset, in order to preserve the integrity of the justice system. This is essential.
- The Attorney General and the Chief Judicial Officers of the province should be members of the governing council, to ensure that they are supportive of, and accountable for, representations made to the legislature. As well, the governing body must be provided with the necessary supportive linkage with Treasury Board to enable it to make effective representations to the legislature.
- The new system must ensure ultimate accountability to the legislature for the expenditure of these public funds, and preferably will feature direct reporting to that body and direct approval by it of budgetary matters
CHAPTER 11: THE COST OF THE CIVIL JUSTICE SYSTEM
- That a research project be commissioned to examine and analyze the question of the "cost" of justice, both from an institutional or systemic perspective and from the perspective of individual litigants.
- That a working group be established, in conjunction with the Law Society of Upper Canada, for the purpose of addressing the question of legal fees and making recommendations to the Civil Justice Review in that regard for the purposes of its Final Report.
CHAPTER 12: BACKLOG
- That the notion of "backlog" be confined to those cases which are truly ready for trial and which have been in a state of readiness awaiting trial for a period greater than 9 months.
- That two dedicated teams -- a trial team, and a pre-trial/settlement team -- be created for purposes of pre-trying and trying, the backlog cases in the court centres around the province where this is needed most.
- That the backlog trial team be drawn from existing judicial resources.
- That the pre-trial/settlement team be comprised of a group of recently retired judges and senior members of the bar.
- That a fund be created for the purpose of retaining a group of recently retired judges, and senior members of the bar if necessary, to act as an advance pre-trial/settlement conference team for the backlog cases. This team would work with the backlog trial team in developing and carrying out a plan to attack and eliminate the existing backlogs across the province. Its members would pre-try, mini- try, mediate and make all reasonable efforts to settle those cases in order to avoid the need for trials. For those cases which need to be tried, and which cannot be settled, they would conduct trial management conferences in order to prepare the case for as short and effective a trial as possible.
- That the Federal Government of Canada respond promptly to the occurrence of judicial vacancies by appointing new judges to fill vacancies immediately upon their occurrence.
- That the Federal Government consider the making of "anticipatory appointments" as a method of temporarily increasing the judicial resources available, in order to create a pool of additional judges for attacking the backlog problems across the province.
CHAPTER 13: MANAGEMENT OF CASES
13.1 Caseflow Management Generally
- That Ontario adopt general time standards for the
disposition of cases in the system from the date of filing. We
propose with 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 MONTHSFrom settlement conference to trial -- 9-12 MONTHS
- That a caseflow management system, designed to manage the time events of lawsuits as they pass through the civil justice system, be implemented on a province-wide basis in Ontario over a period of the next 4-5 years.
- That the system will manage the time and events 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 esources to cases in the most effective manner; and,
- Reduction of the cost of litigation.
- That the exact nature and form of the system of caseflow management to be introduced across the province be a matter to be left to an implementation team to be created for that purpose.
- That the new model should also include the following key
- Principal responsibility for management of the flow of cases to 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
- That the implementation of caseflow management must be
- 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 paradigm is working as well as possible on a continuing basis.
- That circuiting be recognized as a central feature of the Ontario Court (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 will move into and out of the "Judicial Teams" to 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.
13.5 Alternate Dispute Resolution
- 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 Settlement Conferences
- 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.
- 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.
- 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 that might bear
scrutiny in this exercise are:
- The possible retrenchment 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
- That courts be more vigilant in exercising their costs sanctioning authority under the Rules in cases of abuse regarding motions and motions procedures.
- 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.
- That the Rules of Civil Procedure be amended to provide Senior Regional 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 Senior Regional Justices of each Region in question.
CHAPTER 14: THE RULES OF CIVIL PROCEDURE AND THE SIMPLIFIED RULES PROPOSAL
- That the Courts of Justice Act be amended to provide for the addition of a public representative to the Civil, Family and Criminal Rules Committees.
- That a working group be established, as part of the implementation team and in conjunction with the Civil and Family Rules Committees, to deal with the Rules changes that will emerge from the recommendations contained throughout this First Report.
- That the proposal of the Simplified Rules of Civil Procedure Committee with regard to all cases in which the claim is for money or property of a worth not exceeding $40,000. be adopted.
CHAPTER 15: RECORDS MANAGEMENT
- That a Working Group be established, as part of the
Implementation Team, to review the role of the Court as record
keeper and to make recommendations with respect to:
- The nature and type of court record that must be preserved;
- Time parameters for records that do not require perpetual preservation;
- The manner of storage of records that need to be kept;
- The manner in which documents which are not required to be kept should be destroyed.
CHAPTER 16: FOCUS ON FAMILY LAW
16.2 The Proposal: A Resolution Focused Process for Family Law
- That an information services video be prepared with respect to Family Law matters for distribution through community resource centres, shelters, legal aid clinics, the courts and law offices and that, except in emergency situations, it be mandatory for parties contemplating Family Law litigation to view the video prior to instituting court process.
- That the early session/evaluation process involving the early intervention of judges and a streamlined process be introduced on a pilot project basis in the proposed expanded Unified Family Court sites.
- That local and regional family law committees, with representatives from the public, the judiciary, courts administration and the bar, be established to enhance communication, knowledge, and the quality of the process in Family Law matters. A parallel provincial committee would assist in providing a communication and coordination function across the province.
- That the Legal Aid Plan consider the development of legal education programs for lawyers providing Family Law services, in conjunction with the Law Society of Upper Canada and other professional organizations; and that the granting of legal aid certificates to lawyers representing family law clients be contingent upon participation in such programs or upon some other form of accreditation.
- That administrative, low-cost options for the disposition without judicial involvement of purely uncontested divorces, (excluding issues respecting children) be developed.
- That serious consideration be given to removing from the Family Support Plan support payors who are in compliance, until there has been a default, and redirecting efforts and resources to customer service issues.
CHAPTER 17: SPECIFIC AREAS
17.1 Small Claims
- That Small Claims Court proceedings across the province incorporate a standardized settlement conference/pre-trial process, with mediation-like services available as a part of that process where feasible.
- That lawyers who act as Deputy Small Claims Court Judges receive mandatory training for the performance of their duties, under the direction of the Committee of the General Division Judges in consultation with the National Judicial Centre. We also recommend that this training include training in mediation. We further recommend that Deputy Judges be compensated, at their per diem rate, while attending such training sessions.
- That the Courts of Justice Act be amended to provide for appeals from decisions of the Small Claims Court be made to a single judge of the Ontario Court (General Division) sitting in the region where the claim has been disposed of.
- That the monetary threshold for appeals from final orders in Small Claims Court be established at $1,200 for the present, and that the threshold be established automatically at 20% of the maximum monetary jurisdiction of the Small Claims Court, as it may be prescribed by regulation from time to time.
- That consideration be given to establishing an optional procedure for appeals to be presented in writing from final orders of the Small Claims Court.
17.2 Landlord and Tenant
- That the Ministry of the Attorney General continue to pursue mediation options with the Ministry of Housing.
- That, if the Supreme Court of Canada holds that it is constitutionally permissible to place landlord and tenant disputes in an administrative setting, such an option for Ontario be re-examined.
17.3 Construction Liens
- That a working group consisting of representatives of the Judiciary, the Masters, the Ministry of the Attorney General, the Construction Bar and the Construction Industry be established to review the final report of the Attorney General's Advisory Committee on Alternative Resolution of Construction Disputes and report back to the Review for a recommendation in our Final Report.
- That the Registrar and Deputy Registrar in Bankruptcy functions be assigned to the Judicial Support officers working within the case management team concept.
- That a Judicial Support Officer in each Regional Centre be appointed, under the Bankruptcy and Insolvency Act, to carry out the functions of Deputy Registrar in Bankruptcy in each of these centres.
CHAPTER 18: TECHNOLOGY AND STATISTICAL INFORMATION
18.4 Ontario's Needs
- That steps be taken immediately to put in place the necessary technology for the creation of a proper management information system for the civil justice system, and thereafter to implement such a system.
- That a pilot project be established to test the utility of video conferencing technology in civil matters. We suggest that the project be established amongst a number of communities in Northern Ontario.
18.6 Critical Next Steps
- That the technological infrastructure -- including network
systems, hardware equipment, software applications, and
provision for adequate training -- be put in place in Ontario
to enable the civil justice system to operate on the basis of:
- the electronic filing of documents by lawyers, by members of the public, and by other agencies
- the electronic exchange of information as needed between lawyers, offices, the judiciary and the public
- the ability to provide data in courtrooms and the ability to provide electronic inquiry
- electronic imaging, to supplement these features
- video conferencing available provincially for specific types of hearings such as motions and applications, pre-trials and case management meetings
- data entry at initial source
- fees paid through automated account debit or credit card
- automated information centres
- kiosk access for the public
- That, as part of the implementation program for this technological infrastructure, the Ministry continue, and expedite, its current initiative in the expansion of network facilities across the Province.
- That these initiatives be implemented over a period of 5 - 7 years. Planning must include the need for flexibility to accommodate future advances in technology.
- That a special committee be struck, to work with the Rules Committee in conjunction with the Implementation Plan, to examine these issues and to make recommendations for the implementation of evidentiary and rule changes necessary to accompany the technology changes to be implemented.
18.7 Other Recommendations
- That a Courts Technology Committee be established with a
mandate to develop specific proposals for the implementation of
technology solutions for the civil justice system. This
Committee should be comprised of representatives from the
Judiciary, the Ministry of the Attorney General, the Bar and
the Public. It should be ready to release its proposals within
a period of 9 months. Its terms of reference will include the
- The Committee will determine the optimum solution for
the implementation of technology for Ontario's civil
justice system, in accordance with the following criteria:
- the system must be cost effective,
- it must support the implementation of caseflow management,
- it must provide the infrastructure for a new management information system,
- it must provide appropriate training opportunities and facilities for users of the system,
- it must enhance public access to the system,
- it must ensure the integrity of the court record,
- it must be responsive to the unique needs of the judiciary,
- it must be viable into the twenty-first century,
- it must be able to integrate data and process information from all parts of the system bar, bench, police, corrections and others--while at the same time not threatening the principles of an independent judiciary.
- The committee will determine the costs of acquiring the necessary technology, and will identify funding opportunities and develop the necessary business case in support of the required funding.
- The Committee will work, through a special sub-group, to identify the requirements for an effective management information system, and to develop the means to implement such a system.
- The Committee will develop a detailed province-wide implementation plan, to be spread over a 5 to 7 year period and will work with the rules committees to ensure that appropriate changes are implemented to the rules so as to ensure that the technological changes will work effectively in practice.
- The Committee will determine the optimum solution for the implementation of technology for Ontario's civil justice system, in accordance with the following criteria:
CHAPTER 19: RESOURCES
- That representatives from Courts Administration, the Judiciary and the Bar develop a protocol with respect to the examination of court documents by court staff, and that the protocol be communicated to all court offices in the province and be applied throughout the province.
- That the Rules Working Group of the Implementation Team consider the development of broader and more flexible approaches to the filing of court documents.
- That steps be taken, through the Rules Working Group of the Implementation Team, to minimize, and eventually to eliminate, the practice of examinations for discovery being held in court office facilities, in those locations where properly qualified private- sector reporting services are available.
- That, where there is consent to the order being requested,
case management co-ordinators be authorized to dispose of the
- amendments to pleadings (in addition to the registrar's existing powers in this respect)
- additions/deletions/substitutions of parties
- change of solicitors of record
- setting aside default judgements
- discharge of certificates of pending litigation
- requests for security for costs in specific amounts
- certain discovery related motions
19.5 The Impact of Change
- That legislators, regulation-makers, rule-makers and authors of practice directions be required to conduct "impact studies" (including research and appropriate consultation) on the effect of proposed changes and initiatives on judicial, administrative and legal resources before implementation of the proposed changes or initiatives.
CHAPTER 20: ACCESS TO INFORMATION AND PLAIN LANGUAGE
- That the Ministry of Education, elementary and secondary schools, universities and community colleges play a greater role in the education of the public with respect to the purpose, values and processes of the civil justice system.
- That community based information services be developed through a partnership between the Bar, the Ministry and Legal Clinics. The information available should be in "plain language" which is readily understood by general members of the public, and it should be available in a variety of forms -- e.g. written brochures and materials, interactive computer terminals, video cassettes and audio formats -- in order to facilitate a broad distribution of information in locations other than courthouses and at times other than regular office hours.
- That the Ministry of the Attorney General participate in the Ontario Government's Kiosk Program as a method of disseminating information about legal processes more broadly to the public.
- That legal forms for use in the General Division be made available at court locations. In connection with this service, we recommend as well the creation of a "plain language" guide to the steps in a legal proceeding along the lines of the presently published Small Claims Court guide.
- That, as part of the Ministry of the Attorney General's customer service initiative, a guide for counter staff be developed to clarify for them what is permissable information about the legal process for them to impart to the public.
- That Regional Senior Justices be careful to ensure that local practice directions are put into place after appropriate consultation with bar and courts administration representatives, and in accordance with the provisions of the rules. In addition, copies of the practice direction should be provided to the Regional Courts Management Advisory Committees, to ensure broad publication and knowledge of their contents.
CHAPTER 23: IMPLEMENTATION
- That a dedicated Implementation Team be established to work with and assist the Civil Justice Review in developing and executing a plan for the implementation of the recommendations contained in this First Report. The team should be comprised of representatives from the Judiciary, the Bar, the Ministry and the Public.
- That the Implementation Team function, as well, through sub-working groups which will have responsibility for particular areas of the task and will report to the Implementation Team and the Review itself. Such working groups should be formed to deal with the areas of case management, technology, the rules, and costs, and with such other matters as the Review and the Implementation Team may determine advisable.
- That the committee which we have recommended be created to examine the issue of an unified management, administration and budgetary model for the justice system should be a separate committee because of its nature.