- Part I - Background and Vision
- Part II - Status of Implementation
- Part III - Making the Civil Justice System Work
The Civil Justice Review was established in 1994 at the joint initiative of the former Chief Justice of the Ontario Court of Justice and the former Attorney General for Ontario. The Review's mandate is "to develop an overall strategy for the civil justice system in an effort to provide a speedier, more streamlined and more efficient structure which will maximize the utilization of public resources allocated to civil justice".
In March, 1995, after extensive consultation, the Review released its First Report which contains 78 recommendations directed at creating the framework for a modern civil justice system. Key components of this framework include the following:
- that courts will become "dispute resolution centres" adopting a "multi-door" concept of dispute resolution and integrating alternative dispute resolution techniques;
- that there will be a province-wide caseflow management system that will process cases in accordance with prescribed time parameters using a team approach;
- that there will be a unified management, administrative and budgetary structure with clear lines of accountability; and
- that there will be a properly funded infrastructure which utilizes modern technology.
Response to the First Report has been favourable. The Attorney General, as well as the former and current Chief Justices have stated publicly that they endorse the Report and are committed to its implementation.
In the First Report, a number of issues were identified requiring further development which were deferred to the Review's final report. The Supplemental and Final Report addresses those issues and contains 36 additional recommendations which supplement, rather than supplant, the recommendations made in the First Report. The Supplemental and Final Report also provides an update on the status of implementation of the First Report's recommendations.
Implementation of the First Report is underway and, currently, is focused on the following areas.
A Working Group was constituted to develop a caseflow management process to be implemented across the province. In June 1996, a Final Report, which includes a draft set of Case Management Rules, was submitted to the Task Force. Also in June 1996, legislation was introduced creating the position of Case Management Master (called a "Judicial Support Officer" in the First Report) in keeping with the Review's recommended "team" approach to case management. This legislation received Third Reading on October 29, 1996. It is anticipated that, based on the proposed rules, caseflow management will be expanded to Ottawa for 100% of civil cases and to 25% in Toronto in early 1997.
A broadly representative Civil Justice Technology Advisory Committee was created to provide advice regarding the implementation of information technology initiatives for the civil justice system. Such initiatives include updating the technology necessary to support the expansion of case management, testing the electronic filing of court documents, and pursuing a partnership with the private sector to develop longer term technology solutions for the justice system.
A "focus on family law" was the subject of a separate Chapter in the First Report. A Working Group, which continues to meet, was established to develop further the Civil Justice Review's recommended "resolution-focused" process for family law in Ontario.
Elimination of the civil backlog, recognized as a prerequisite to the implementation of caseflow management, is well underway. At the instance of the Chief Justice, backlog reduction plans have been prepared for each Region, which entail travelling teams of designated "backlog" judges.
Civil case management is a centrepiece of the recommendations put forward earlier by the Civil Justice Review and re-enforced in the Supplemental and Final Report. Its implementation is essential to the successful fulfilment of the Task Force's "vision" for a modern civil justice system.
A Working Group, established to make recommendations regarding an appropriate province-wide civil caseflow management system, presented its Report to the Task Force in June 1996. The Civil Justice Review endorses this Report in principle.
A summary of the essential features of the case management regime recommended by the Task Force follows.
Case Management Teams: Responsibility for case management will reside with teams consisting of judges, judicial support officers (now to be called Case Management Masters) and case management co-ordinators.
A Single Set of Rules: One set of case management rules would apply to all civil, non-family, actions and applications commenced in the Ontario Court of Justice (General Division).
Court Monitoring Only After Defence: Only defended cases would be administered in order to reduce the time and cost expended by the Court in administering cases.
"Tracks": The proposed system calls for two "tracks" of cases: "standard" and "fast".
The Streamlining of Time Guidelines: Only the following time limits would be applicable:
- attendance at an ADR session within 2 months after the close of pleadings;
- a settlement conference to be held within 3 months after the close of pleadings for fast track cases and within 8 months for standard track cases;
- cases to be at trial within 2 months of the settlement conference.
Integration of ADR and Mandatory Referral: The Review recommends the implementation of early mandatory mediation for all civil, non-family, cases once an adequate body of qualified ADR providers is established. The proposed case management rules have been drafted to provide that mandatory ADR can be easily integrated into the existing rules, as the new system is rolled out across the province.
Three Types of Conferences: The proposed case management system calls for the following three types of conferences: case conferences; settlement conferences; and trial management conferences.
Sanctions: Sanctions are proposed for failure to comply with case management timelines.
Simplified Rules Procedure: Cases falling within the newly implemented Simplified Rules Procedure would be deemed fast track cases and Rule 76.05 (no discovery) would apply.
Technology: Civil case management cannot work without a properly functioning technology base. While it is not the role of the Civil Justice Review to design an automated civil case management system, it is important that the hardware and software needs for running such a system be understood. The Supplemental and Final Report sets out a summary of those needs.
Advisory Committee: It is proposed that an Advisory Committee be established to provide advice with respect to the implementation of case management and to monitor how it is working.
Implementation and Transitional Provisions: It is recommended that the proposed case management rules be implemented in each of the pilot project centres and in Ottawa in early 1997, and province-wide by the year 2000. In order to avoid an ongoing backlog of existing cases, transitional provisions would apply.
In the First Report, the Task Force endorsed the concept of court-connected ADR in principle, but deferred consideration of the appropriate service model and funding option until the evaluation of the ADR Centre pilot project had been completed.
The evaluation of the Centre was completed in November 1995 and concluded that referral to ADR provides a cheaper, faster and more satisfactory result for a significant number of the referred cases. Key findings of the evaluation include:
- that 40% of cases referred to mediation result in a settlement in the very early stages of the case (normally within two to three months of the filing of a statement of defence) thereby reducing court caseloads and the costs of litigation;
- that there is strong and broad approval for the availability of ADR as part of the litigation process;
- that there is no significant opposition among lawyers or litigants to the mandatory nature of ADR and that referral to ADR should continue on an 'opt-out' basis after the filing of the first statement of defence.
Integration of ADR into the Case Management Model
The impressive settlement results of the ADR Pilot Project have caused the Task Force to reconsider its earlier view that all defended cases should first go through a screening process with what will now be called a Case Management Master. Based on the findings of the evaluation, the Review now recommends that there should be mandatory referral to mediation of all types of civil, non-family, cases with a provision for "opting-out" with leave of a Case Management Master or Judge. It is proposed that referral to mediation take place after the first statement of defence has been delivered in order to reduce costs both to the litigant and the court system. Mediation is recommended, as opposed to other types of ADR, because of the established success of that form of ADR in achieving settlements in the early stages of litigation.
In order to ensure a viable overall case management system in the province, the Review believes it is important that the referral to mediation be an integral component of case management. As it is important that the referral to mediation not present new opportunities for delay, the time to complete the mediation session should be integrated into the overall case management timetable and not extend it.
Appropriate Form of Service Model and Funding
The Review recommends that, to ensure the credibility of the mandatory mediation program, it should be court-connected and should operate with a roster of "accredited" private sector mediators. A mixed panel of staff and private sector mediators, however, should be available where there is an insufficient supply of qualified private mediators.
It is proposed that funding of the mandatory mediation program be founded on a cost-recovery rationale, based upon a surcharge added to the filing fees paid by all parties to an action, which would be segregated from the Consolidated Revenue Fund. It is further recommended that, in order to contain the cost of the program and ensure its accessibility, court roster mediators should be paid a regulated fee. The Task Force believes that all participants in the justice system and the public as a whole benefit by a process which leads to earlier settlements and less costly litigation. Accordingly, the cost of funding the program should be borne by all litigants, whether or not the case is defended and actually proceeds to the mediation stage.
It is vitally important that mediators be qualified. At this time, there are different views concerning the requirements necessary to constitute an "accredited" mediator and further consideration of appropriate standards is required. Accordingly, the Task Force recommends that a consultation process be established which will lead to the development of standards and an accreditation process for ADR providers within a one year period.
In the interim, prospective court roster mediators should be required to submit to an application procedure in which mediation training and experience, as well as knowledge of the court process, are assessed. The Task Force proposes that the ADR Project Steering Committee be authorized to develop criteria for this assessment process and that local Advisory Committees be struck to review prospective mediator applicants based on those criteria.
ADR and Family Law
Unlike the delivery model for civil cases, the Task Force does not recommend, at this time, that all family law cases be referred to mediation after a case is defended. The "early resolution focused" process for family law recommended in the First Report, however, creates opportunities at both the pre- and post-application stages to integrate ADR services within a case managed environment.
While the Task Force recommends a surcharge to fund mediation in civil matters, such a funding mechanism is problematic in family law as one of the three courts that currently deals with family matters does not impose any fees. Accordingly, it is proposed that the funding mechanism for family law cases be "user-pay", with some provision for pro bono services.
Consideration must also be given to the appropriate role of ADR in child protection matters. Despite the historic resistance, there is growing evidence that mediation can be a useful tool in child protection cases. Accordingly, it is recommended that a Task Force be established to design a mediation process for child protection cases that would include appropriate case referral criteria.
As discussed in the First Report, "venue" raises a number of difficult issues concerning the current ability of litigants to determine where their proceedings should be dealt with, and the allocation of judicial and court resources in the province generally. At present, certain court centres are faced with backlogs of civil cases when, within reasonably short distances, there exist facilities and resources which are being under-utilized.
Concerns have been expressed that parties and witnesses are being inconvenienced by the lack of venue rules, as many actions are being commenced in the province's major centres simply because the originating party's lawyer practices in the area. This makes it difficult to plan an efficient use of courts and staffing.
In order to address these problems, the Task Force recommends that venue provisions be reintroduced in Ontario law, and that there be provision for the judicial transfer of cases aided by prescribed guidelines.
Although the Task Force made a number of recommendations regarding the Small Claims Court in the First Report, it was felt that a more in-depth analysis of the small claims issue should be deferred pending the evolution of the Simplified Rules initiative and the completion of a study by the Fundamental Issues Group.
The Simplified Rules initiative has been enacted on a pilot basis; however, information is not yet available to assess its impact. The study by the Fundamental Issues Group has now been completed and points to the need to address broad policy issues concerning the objectives of a small claims process before making final decisions concerning the appropriate type of forum and procedures. We agree. This is a task, however, that extends beyond the Civil Justice Review's mandate to propose "specific and implementable" solutions to existing problems in the system. Accordingly, we propose that a broadly representative Task Force be established to conduct this work and to make specific recommendations in this regard.
There are, however, issues respecting small claims that can be addressed in the interim. These are discussed below.
Concern has been expressed that the court's current monetary jurisdiction of $6,000 is too low and that the public do not have access to a forum for the economical resolution of smaller claims in excess of that amount. The Review is of the view, however, that any increase in the monetary limit of the Small Claims Court should be postponed until there has been a formal evaluation of the Simplified Rules initiative. The expectation is that the General Division will become more economically accessible for litigating such claims and, as a result, an increase in the monetary jurisdiction of the Small Claims Court may become unnecessary. The Review also believes it is important to establish baseline data on the current operations of the Small Claims Court prior to any increase in jurisdiction.
The Presence of Lawyers in the Small Claims Court
It has been suggested that, in order to preserve the "people's court" character of the Small Claims Court, lawyers should be excluded from appearing at trial. Legal representation is said to result in a greater level of formality in the court and to impose increased pressure on the other party to hire a lawyer. Two studies of Small Claims Courts undertaken by the U.S. National Center for State Courts (known as the "National Studies") have concluded, however, that there is no such basis to exclude lawyers.
The Review concurs with this conclusion and recommends that Small Claims Court litigants not be deprived of the right to decide whether to use a lawyer. In making this recommendation, however, the Task Force is aware that legal costs in the Small Claims Court can reach a level that is disproportionate to the amount at stake. Accordingly, it is recommended that lawyers' fees be limited to a maximum of 40% of the jurisdiction of the Small Claims Court.
The Presence of Businesses in the Small Claims Court
It has also been suggested that the presence of business litigants in the Small Claims Court detracts from its "people's court" character and deters individuals from using the court. This perception was tested as well by the National Studies, which found it not to be the case. Based on these findings, the Review is of the view that businesses should not be excluded.
During the consultation process, concerns were raised about a perceived inconsistency in decision-making on the part of Deputy Judges. The Task Force is of the view that this inconsistency is at least partly due to the lack of training Deputy Judges receive. It is recommended that Deputy Judges receive mandatory training with respect to their role as Small Claims Court Judges. In addition, they should receive instruction in consumer claims, poverty law issues and case management.
The present system of appointing Deputy Judges has also received some criticism. Concern has been expressed, for example, that the present system is too informal and candidates are not adequately screened. The Task Force is of the view that there should be a formal recruitment process in place and that appropriate selection criteria should be established.
Access to Information
Having understandable information about the Small Claims Court readily available throughout the province is an important component of ensuring access to justice. The Task Force recommends that such information should be available to the public in "plain language" and in a variety of mediums, languages and formats.
Further to the Task Force's recommendation in the First Report, a Working Group consisting of representatives of the Judiciary, the Masters, the Ministry, the Construction Bar and the construction industry met in December 1995 to review the recommendations of the Advisory Committee on the Alternative Resolution of Construction Disputes and other matters related to construction litigation. The Review also received a further submission from the Construction Law Section of the CBA-O.
Based on this additional input, the Task Force recommends that, as construction lien matters are factually and legally complex, there should be a specialized list for such cases. Who should be assigned to hear these matters -- for example, whether a Judge, Master or Case Management Master -- should be left to the discretion of the Chief Justice.
Further, the Task Force believes that construction lien cases should be case managed and that, to accommodate this, the timeframes in the Construction Lien Act and in the proposed civil case management rules should be aligned as far as possible to ensure compatibility. As well, it is proposed that construction lien cases, like other civil cases, should be subject to early mandatory referral to mediation.
In the First Report, the Task Force identified a number of problems with the resolution of landlord and tenant disputes in the courts and recommended that an administrative tribunal option be considered, should the constitutional impediment to that option be removed. In February 1996, the Supreme Court of Canada released its decision in Re Residential Tenancies Act, (N.S.) which appears to make this option available.
Benefits associated with an administrative process include increased accessibility through less formal procedures, and the earlier resolution of disputes by incorporating alternative dispute resolution techniques such as mediation. In designing an appropriate process, the Review stresses the importance of taking into account concerns that have been raised about conferring responsibility for landlord and tenant matters to an administrative tribunal.
While not recommending the exact nature and form of an administrative process, the Task Force proposes that it should incorporate certain characteristics, for example:
- that it should be a single process before an independent tribunal with exclusive jurisdiction of first instance, with a right of appeal to the Divisional Court;
- that the tribunal should actively manage cases, rather than simply adjudicate, and that an early mediation process should be an important component;
- that the tribunal should be adequately funded and properly staffed, and should incorporate informal, easily understood procedures which are broadly communicated.
In the First Report, recommendations relating to enforcement activities were deferred pending further comment on the following issues.
Warrants of Committal
The Small Claims Court is the only civil court where such a drastic remedy as a warrant of committal can be readily obtained. The current procedures dealing with these warrants lead to the perception that they are issued for non-payment of the judgment debt, as opposed to contempt of court for not appearing at a judgment debtor examination for non-payment. The Task Force is of the view that imprisonment for contempt in this context is inappropriate and recommends that less draconian options be considered.
Notwithstanding a number of recent changes to service requirements, there continues to be varying, and sometimes conflicting, rules with respect to the service of court documents. Accordingly, the Task Force proposes that a comprehensive review of all service rules be undertaken with the objective of ensuring consistency and optimizing the use of modern, effective and low-cost methods of service.
The Enforcement of Judgment Debts
Debtor-creditor law in Ontario is currently governed by a number of different statutes and has been described as "fragmented, ambiguous, incomplete and archaic". Enforcement processes in the different courts are inconsistent and complex.
Reform of this area of civil law is critically needed and it is recommended that an appropriate strategy be developed. As part of that strategy, consideration should be given to integrating enforcement measures under a single statute which would create a central enforcement office responsible for the coordination and operation of all enforcement activities for all levels of court. In addition, the privatization of enforcement activities should be considered.
As discussed in the First Report, while examinations for discovery are considered to be a critical component in the conduct of litigation, concerns have been expressed that they have become too time-consuming and costly to continue without some controls. We noted that the cost of discovery to a litigant who participates in an average 3-day trial is approximately $7,000 in legal fees, which does not include the costs associated with discovery-related motions that are often brought. A contributing factor to the growing length of examinations, and the corresponding increase in cost, is the current broad scope of pre-trial disclosure and discovery.
While the Task Force has received a number of suggestions for addressing the problems associated with the discovery process, we believe that a more indepth study of this issue is needed. Accordingly, it is recommended that the Civil Rules Committee constitute a Working Group to make recommendations concerning the current Rules of Procedure governing discovery with the objectives of preserving its essential disclosure principles while improving its economic effectiveness.
In our First Report, a "resolution focused process" for family law was recommended to address the many concerns raised during the consultation stage of the Review with respect to family law. A Family Law Working Group subsequently was constituted for the purpose of developing and implementing this proposed process. The Family Law Working Group has made significant progress towards the implementation of the new resolution focused process. A brief summary of the proposals which the Civil Justice Review endorses is set out below.
Case Management: The Working Group supports the adoption for family law cases of the 180 day timetable recommended by the Civil Case Management Working Group, subject to the statutory exceptions set out in the Children's Law Reform Act and the Child and Family Services Act, and agrees with the Review's earlier recommendation that a mandatory case conference take place before interim relief is sought.
Family Law Committees: The Working Group has pursued the Review's recommendation that local and regional family law committees be established and has created a comprehensive database of all existing Family Law Committees.
Streamlined Processes: As there are constitutional impediments to granting uncontested divorces using a purely administrative mechanism, the Working Group is considering other options for streamlining this process and making it more accessible and less costly. The development of standard, simplified court documents has been deferred by the Group in light of the work undertaken in this regard by the Family Rules Committee.
Information Services: North American research considered by the Working Group supports the Review's recommendation that the viewing of an information video dealing with family law matters be a mandatory pre-condition to entering the family law court process and has prepared a video outline.
Expansion of the Family Court: The Family Law Group is in agreement that the expansion of the Unified Family Court should continue.
Mediation: The Group has not reached a consensus regarding the concept of mandatory referral to mediation in the family law area, although it has agreed that mediation services currently provided in the expanded Family Courts should be generally available.
Legal Aid: The Working Group intends to pursue issues related to the changing legal aid environment and to make recommendations with respect to unrepresented litigants.
While the Working Group has made considerable progress, it has been unable to reach a consensus in several difficult areas with respect to case management and ADR. The controversial nature of these issues has highlighted the complexities of family law generally and the difficulty of properly addressing this area of the law in the context of a general civil justice review. Accordingly, the Task Force recommends that a "Family Justice Review" be undertaken which, building on the work of the Civil Justice Review and the Family Law Working Group, would consider these and other family law issues and involve broad consultation.
In our First Report, we recommended that a research project be commissioned to consider the "cost" of justice, both from an institutional perspective and from the perspective of litigants. While the Ontario Law Reform Commission had planned to undertake this study, news of its discontinuance was received prior to beginning the project.
We believe strongly that this research should proceed and recommend that the Ministry of the Attorney General establish a Working Group with the mandate of completing this work within one year. We further recommend that, as part of the study, the Working Group consider alternatives to the billable hour for establishing lawyers' fees.
During the consultations, members of the public expressed concern about the high costs of civil justice which they attributed in part to the current billing practices of lawyers. One alternative frequently recommended was contingency fees.
With the exception of criminal and family proceedings, contingency fee arrangements should be permitted in Ontario. At present, Ontario is the only Canadian province that does not permit contingency fees. In making this recommendation, however, the Review is aware of the potential for abuse and the need to ensure adequate safeguards are in place.
While it is clear that the public is very interested in participating in the civil justice system, concerns have been expressed that the current vehicles for such participation -- the Ontario Courts Management Advisory Committee (OCMAC) and the Regional Courts Management Committees (RCMACs) -- are not being utilized to their full potential.
The Task Force continues to believe that these Committees are important components of the justice system in Ontario: the participatory process they bring to the justice system and the potential vehicle they provide for public input are vitally important.
However, in supporting the continuation of these Committees, the Review acknowledges the need for them to be revitalized. In this regard, it is recommended that a number of recommendations arising out of a Joint OCMAC/RCMAC Planning Session be adopted including extending the terms of Committee member and ensuring that a mentorship and training program are implemented. It is further recommended that there should be regular liaison between these Committees and local Bench and Bar Committees, as well as greater access by community groups.