Chapter 5 - Management of Cases

5.1 - Case Management Regime and Rules

Introduction

The Civil Justice Review has proposed the implementation of a civil caseflow management system on a province-wide basis. [1]

As noted in Chapter 4, a Case Management Working Group has been established to make recommendations regarding the introduction of such a system. The Working Group is co-chaired by Madam Justice Gladys Pardu and by a member of the Bar, as she then was, Ms. Mary Lou Benotto (now Madam Justice Benotto). [2] The Committee membership includes other representatives from the Bench, Bar, Ministry and the Public, including representatives from each of the case management pilot project sites. The Working Group met over a period of six months, with a view to proposing a case management regime and a set of accompanying rules which would achieve the following objectives:

  • earlier dispute resolution;
  • reduction of legal costs;
  • elimination of delays and backlog;
  • efficient allocation of judicial, quasi-judicial and administrative resources;
  • protection of the parties by ensuring that the individual litigant receives information about the time limits provided in the rules;
  • easier accessto the most appropriate method of resolving a particular dispute.

The Working Group presented its Report to the Task Force in June 1996. We a re indebted to the co-chairs and to its members for their considerable efforts and for the contribution they have made to the ongoing development of caseflow management in this Province. Mr. Justice Jack Ground is deserving of some individual acknowledgement for his contribution in spearheading the drafting of the rules included in the Report.

The Civil Justice Review accepts and adopts the Working Group's Report and the draft civil case management rules put forward for province-wide implementation, in principle. A full text copy of those proposed civil case management rules is found at Appendix 2 to this Supplemental and Final Report.

There is one minor exception to our adoption of these proposed rules in their entirety. The exception pertains to the mechanism for matching mediation appointments to cases in ADR situations. Our different perspective, and recommendation in this respect, will become apparent in the overview which follows. [3]

Overview

The Civil Justice Review has given careful further consideration to the concept of case management since the publication of our First Report, to the consultation feedback which we have received on the subject, and to the report of the Case Management Working Group. Our Supplemental and Final Report recommendations are based upon these deliberations and upon the proposals put forward by the Working Group. The essential features of the case management regime that we recommend be introduced across Ontario, and of the rules which would give it shape, together with the technology requirements necessary to bolster and facilitate the successful implementation of that regime, are these:

a.   Case Management Teams

The principal responsibility for the management of proceedings through the system will reside ultimately with the judiciary rather than with the Bar, as has traditionally been the case. However, in order to allocate functions such as early screening of cases into appropriate streams, case management teams consisting of judges, judicial support officers (now to be called Case Management Masters) and a case management co-ordinator are to be established. This concept is more fully put forward and explained in our First Report. [4]

A successful case management regime depends upon the appointment of an adequate number of Case Management Masters to support the work of the case management teams. It is fundamental to success that an analysis of each contested case be possible so that each matter can be resolved in the most appropriate way. It is expected that the Case Management Master will do this sorting and screening at an early case conference; indeed, one of his or her key functions will be to perform the early evaluation, screening and streaming of cases. Where mandatory ADR is in place, the evaluation, screening and streaming process will generally occur after a defence has been filed and the initial ADR session has been held (and the matter has not been resolved).

In addition, the Case Management Master will:

  • preside over case conferences
  • hear procedural motions
  • preside over or assist with settlement conferences and trial management conferences where appropriate and under the supervision of the Case Management Judge
  • manage construction lien matters

It is anticipated that a case management co-ordinator would be appointed in each Court to be responsible for day to day administration of case management, including -- subject to judicial supervision -- scheduling.

b.   A Single Set of Rules

There should be one set of case management rules that would apply to all civil (non-family) actions and applications commenced in the Ontario Court of Justice (General Division).

c.   Court Monitoring Only After Defence

While every proceeding started should be counted by the Court to ensure its control over inventory, only defended cases should be administered. These goals can be achieved by:

  1. monitoring the time by which a settlement conference (formerly called a "pre- trial") must be arranged; and,
  2. providing that cases not advanced or resolved within a fixed period of time be automatically dismissed.

In this fashion, the time, energy, and cost expended by the Court in administering cases should be reduced significantly.

d.   "Tracks"

The proposed system calls for only two "tracks" of cases: a "standard" track, and a "fast" track. Some case management systems call for a third, or "complex" track of cases. It is felt, however, that those cases which, for whatever reasons, require more intensive case management attention and a tailor-made timetable can obtain that flexibility through the case management mechanisms of the standard track, however.

e.   The Streamlining of Time Guidelines

An important lesson learned from the three caseflow management pilot projects was that the rules providing for detailed time limits were cumbersome, and that they led to too much administration and to too many motions to extend time at the judicial level. Accordingly, the province-wide rules presently being proposed will provide principally for only two mandated time limits. Those time limits relate to the period within which an ADR session is to be held following the filing of a response, and the time within which a case is to be ready for a settlement conference.

The draft case management rules found at Appendix 2 of this Supplemental and Final Report, and proposed by the Case Management Working Group, call for the following time limits:

  1. that where ADR is available in the region, the parties must attend for ADR within 60 days from the date the first response is filed, and;
  2. that the case must be ready for a settlement conference 90 days after the filing of a defence for the fast track cases and after 240 days for standard track cases.

These time parameters are slightly more ambitious than the 9 to 12 months from initial filing which we recommended in our First Report. The system as we envision it, however, will be free of backlog, will be properly managed and resourced, and will be supported by the necessary technology infrastructure to permit it to work effectively. Much tighter time guidelines than those which are presently in vogue are readily attainable in such an environment, and we applaud and encourage any reasonable time mandate upon which the Bar and the Bench can agree for the more expeditious handling of the public's cases.

A further characteristic of the case management regime which we propose is that cases will be expected to be at trial within two months of the settlement conference being held. This means that standard track cases should be at trial within approximately 10 months of the exchange of claim and defence, and fast track cases within 5 months of that time. Obviously exceptions to these timeframes will occur in more complicated cases, or in other cases which may require longer to "mature", but such extensions will only happen with the concurrence of a Judge or Case Management Master.

In our First Report we established an objective of having cases determined at trial within a framework of 1 to 2 years from start to finish. The efforts of the broadly representative Case Management Working Group, our further consultations, and additional support from other sources such as the recent report of the Canadian Bar Association Systems of Justice Task Force [5] have shown us that there is a will among the participants in the system to work towards even more ambitious objectives. We believe that the streamlined time guidelines proposed here, together with adherence to other time parameters relating to the processing of cases, will make those objectives achievable.

f.   Integration of ADR and Mandatory Referral

It is fundamental to the civil justice system, and to the newly proposed case management system, that the public be given the opportunity to explore the most appropriate method of dispute resolution for their particular dispute. In the ensuing Chapter of this Supplemental and Final Report, the Review recommends the implementation of mandatory mediation for all non-family law cases, after the filing of the first statement of defence. [6]

For this recommendation to be effective, of course, it is essential that there be available an adequate supply of qualified and approved ADR providers, and that ADR services be available within the timeframes set out in the proposed rules (60 days after the first defence or responding document). This latter point is important, in order that ADR not become another vehicle for delay in the system.

Case management can operate independently of mandatory ADR, however, although it is clearly preferable that ADR be integrated into the case management system as it expands across the province, where possible. In some regions of the Province it may be necessary that case management operate independently, at least in the short term, while an adequate body of qualified and approved ADR providers is built up in that region. The case management rules proposed here have been drafted to provide that mandatory ADR can be easily integrated into the existing rules as the ADR "roll out" occurs throughout the province. In the meantime, case management can, and must, proceed.

The Working Group's draft Rule 10 is the rule which anticipates the integration of ADR into the case management scheme and the mandatory referral to mediation. The Group was very concerned that referral to ADR not become an excuse for further delay on the basis that the parties were not able to find a mediator who could complete the mediation within the required 60 days. Its proposed solution to this potential problem is to provide in draft Rule 10 for the Registrar to issue a notice of appointment for mediation upon the filing of the first statement of defence and to provide for dismissal by the Registrar in the event of failure to attend or pay a cancellation fee.

The Review agrees that mandatory referral to ADR must not become a catalyst for further delay. We have concluded, however, that the logistical difficulties and the added administrative burden and attendant costs of such a mechanism, together with the draconian nature of dismissal, outweigh its advantages in blunting potential delay. It would require the computerized scheduling of the timetables of mediators on the roster of mediators and, at the same time, would require the flexibility to account for the myriad of cancellations and re-schedulings which will inevitably occur. In addition, choice of mediator is an important aspect of the acceptability of ADR among users, and the Macfarlane Evaluation [7] identified the lack of choice of mediator and the pre-arranged appointment as two of the features that lawyers disliked most about the court-connected ADR Pilot Project. [8]

Consequently, while we share the Working Group's concern about potential delay, we do not agree with, nor recommend, the automatic issuance of an appointment for mediation upon the filing of a first defence. Instead, we propose in the next Chapter that mandatory referral operate through a roster of qualified and accredited private sector mediators and that the parties be entitled to choose their mediator only from that roster in the absence of leave of the court. It will be incumbent on the parties to ensure that delays are avoided and upon the Judiciary or Case Management Masters to impose cost consequences when such delays unnecessarily occur.

g.   Three Types of Conferences

The proposed case management system calls for the following three types of conferences.

  1. Case Conferences
    A Case Conference may be convened at any time by a Case Management Judge or Case Management Master on their own initiative or at a party's request, for the purpose of, for example, resolving issues, creating or amending case timetables, and considering referral to ADR.

  2. Settlement Conferences
    A Settlement Conference (formerly called a "pre-trial") must be held for the purpose of settling the case or issues in the case according to the following prescribed timelines: 3 months after the close of pleadings for fast track cases; and 8 months for standard track cases.

  3. Trial Management Conferences
    A Trial Management Conference may be convened by a Case Management Judge or Case Management Master on their own initiative or at a party's request, for the purpose of streamlining the use of trial time by, for example, exploring the most expeditious way to introduce evidence and by defining issues.

h.   Timeline Sanctions

Sanctions are included for failure to comply with case management timelines, either established by the rules or by court order. They include:

  • dismissal of the action
  • a costs award
  • striking out of any document
  • a case conference being convened
  • the creation or amendment of a case timetable

i.   Dismissal of Proceeding

If no defence is filed, or motion brought by a party adverse in interest, and the initiating party does not move for judgment within 6 months after the proceeding has been commenced, the case will be automatically dismissed.

j.   Simplified Rules Procedure

Those cases falling within the newly enacted Simplified Rules Procedure are deemed to be fast track cases. The proposed case management rules adopt rule 76.05 of the existing Rules of Civil Procedure (no discovery) for those cases.

k.   Technology

Civil case management cannot work without a properly functioning technology base. An automated case management system has many hardware and software requirements, but there are many products commercially available on the market today which are capable of managing these requirements.

It is not for the Civil Justice Review to propose hardware and software solutions for meeting these requirements. That is a process which requires technical and other expertise which we do not possess. It is also a process which the Government has begun to address through its common purpose procurement process and the establishment of various technology initiatives within the justice sector. The Technology Advisory Committee -- referred to in Chapter 4 of this Supplemental and Final Report and established to assist in technology implementation for the civil justice system -- is playing a role in this regard.

It is important, however, that the needs for running an automated civil case management system in each of Ontario's civil courts be understood, before solutions are sought. In that respect there are some things which can be said by the Review.

  1. Hardware
    The system should allow for electronic linkages between all necessary participants within a civil court office -- those in the registrar's office, the office of the case management co-ordinator or the trial co-ordinator, and the judiciary -- and, indeed, between court offices themselves.
    The hardware should allow an outside source (e.g. a lawyer) to connect to the court's information system electronically. The court should have computers designated solely for such external electronic access. In addition, the hardware should allow access by someone attending the court office in person, with a number of computers in the public area being designated solely for this purpose.
    The hardware must be powerful enough to handle with ease an intensive case management software, a high volume of cases and a high user-volume. It must be capable of sending information to and receiving information from counsel and other individuals by facsimile transmission, by E-mail and by other electronic media. It must have capacity for the electronic storage and scanning of documentation.
    The hardware must be powerful enough to permit the internal movement, handling and management of electronic data for purposes of providing necessary management information services.
  2. Software
    Software chosen for purposes of the automated civil case management system should have the ability to carry out the following functions, or be able to connect easily with other software applications that have the ability to carry out the functions. The ensuing list is not in any order of priority. Nor is it exhaustive.
Case Tracking The ability to monitor the status of a case from commencement to disposition
Multi-case "type" tracking ability The ability and flexibility to track criminal and other types of cases, as well as civil cases, to allow for otential expansion later in those directions in a co-ordinated and integrated fashion
Event Scheduling and Tracking The ability to maintain upcoming/previous court appearances and to update the results of court appearances
Document Tracking The ability to maintain a record of documentation filed with the court office
Cross Referencing The capacity to link one or more cases together in order that they appear together on lists, and can be scheduled ogether
Multi-faceted Search and Locate Facility The facility to search by file number, party, event date, pending/disposed status, etc.
Resource Scheduling The ability to track the availability, or unavailability of judges, reporters, registrars, equipment, etc.
Calendaring The process of being able to see at a glance, a calendar of scheduled activities in relation to a particular esource or group of resources
Automatic Notices, Docketing and List Production The capacity to generate all requisite notices and court lists automatically, in a number of different formats
Tracking of Rules and Notification for Non-Adherence The system should have the capacity to permit programming of the rules structure and of a set of consequences if rules are not adhered to
Electronic Filing The system must be capable of receiving and sending information electronically
Image Storage and Retrieval The capacity for electronic entry and storage of documents, and the facility to allow a user to view and, in proper cases, to print a document
Internet The system must have the capacity to provide Internet access when developed to that point
Restricted Access The ability to restrict access and to differentiate between access rights for different types of users e.g. court staff, lawyers, general public
Client Server/Multi-User Access The capacity to allow many people access to the system at any one time
Remote Access Dial-in from modem
Audit Trail The ability to determine who has accessed the system, when, and for what purpose
Electronic Signature The system must contain all of the security elements for electronic storage of signatures
Financial The ability to track, collect and analyze daily financial information and ledgers, and to produce invoices automatically
User Friendly The system should be easy to use and Windows based. It should feature simple report and retrieval functions and a variety of formats. It should also support a private and public notes facility which would allow a judge, for example, to enter their own private notes about a case or to share information with others using the public notes

Conclusion

Civil case management is a centrepiece of the recommendations earlier put forward by the Civil Justice Review and re-enforced in this Supplemental and Final Report. Its implementation is essential to the successful fulfilment of our "vision" for a modern civil justice system that is speedier, less costly and more effective, as well as "just".

RECOMMENDATION

We therefore recommend that a province-wide system of case management for civil cases, as described in this Chapter, be adopted and implemented in Ontario, and that the draft set of case management rules contained in Appendix 2 to this Supplemental and Final Report, be enacted (with the modifications noted) to effect that result; the proposed system of case management and rules to encompass at least the essential elements as described herein, namely:

  • Case Management Teams, consisting of Judges, Case Management Masters and Case Management Co-ordinators;
  • a single set of Case Management Rules for all civil (non-family) actions and applications commenced in the Ontario Court of Justice (General Division);
  • court monitoring only after defence;
  • two "tracks" of cases, namely a "fast" track and a "standard" track, with flexibility for dealing with cases requiring more intensive case management built into the system through the case conference mechanism;
  • the streamlining of time guidelines through the provision of only two mandated time limits, namely,
    • an ADR Session within 2 months of the filing of a first response; and,
    • a Settlement Conference within 3 months of the close of pleadings for fast track cases and within 8 months for standard track cases;
  • sanctions for failure to comply with case management timelines, including the imposition of costs, the dismissal of actions and the striking out of pleadings and affidavits;
  • the integration of ADR and mandatory referral of all civil (non-family) cases to mediation after the close of pleadings;
  • three types of conferences, namely a case conference, a settlement conference, and a trial management conference;
  • automatic dismissal of proceedings for cases where no defence is filed or steps taken by the initiating party to obtain judgment within 6 months of initiation of the proceedings;
  • fast track treatment for Simplified Rules Cases; and,
  • a properly functioning technology infrastructure with the minimum hardware and software features described herein.

a.   Transitional Provisions

There will be numerous issues of a transitional nature to contend with. In this regard we make the following recommendations:

RECOMMENDATION

We recommend that the proposed civil case management rules apply to all actions and applications commenced after the "implementation date" of case management in accordance with the direction of the Chief Justice.

We further recommend that, in order to avoid an ongoing backlog of existing cases, the following transitional provisions should apply to proceedings commenced before the implementation date, namely that:

  1. if the proceeding is undefended the initiating party should have 6 months from the implementation date to move for judgment or the case will be automatically dismissed by the Registrar; and,
  2. if the proceeding is defended, a Settlement Conference should be arranged within 12 months from the implementation date or the case will be automatically dismissed by the Registrar; and that,
  3. if other transitional issues arise in the case, they be dealt with by a Judge or Case Management Master in the context of a case conference.

b.   Advisory Committee

It is important, in our view, that an Advisory Committee be established to provide advice with respect to the implementation of case management and to monitor how the case management system which is implemented, and the rules relating to it, are working.

RECOMMENDATION

We therefore recommend that a Civil Case Management Advisory Committee be established, composed of representatives of the Bench, Bar, Ministry and Public, to develop plans for the implementation and roll-out of case management across the Province, to monitor the operation of the case management system and the rules, and to recommend to the appropriate authorities, including the Civil Rules Committee, changes in policies and procedure necessary to facilitate case management.

c.   Timing of Implementation

It is neither feasible nor sensible that case management be implemented on a province-wide basis immediately and all at once. Plans are already underway, however for the expansion of case management from 10% of civil cases to 25% in Toronto, and the initiation of 100% case management in Ottawa by the beginning of next year, and we believe that a reasonable target for the province-wide roll-out to be completed is by the year 2000.

RECOMMENDATION

We therefore recommend that the proposed case management rules be implemented in Windsor and Sault Ste Marie (two of the pilot project centres), and in Ottawa in early 1997; that Toronto (the third pilot project centre), which is presently operating on a basis of 10% case management, expand to 25% by early 1997 and move towards 100% on a graduated basis. Finally, we recommend that the province-wide roll out of case management be completed by January 1, 2000.


Footnotes:

[1] See First Report of the Civil Justice Review (Toronto: Ontario Civil Justice Review, March 1995), at pp. 183 - 184 [hereinafter "First Report"].
[2] Ms. Benotto was appointed to the Ontario Court of Justice (General Division) in May, 1996.
[3} With the reservations noted, the source of much of what follows is to be found in the Working Group's Report.
[4] First Report, supra, note 1, at pp. 187 - 196.
[5] Systems of Civil Justice Task Force Report (The Canadian Bar Association, August 1996), at p. 39. The recommendation there is that 90% of all general civil cases should be settled, tried or otherwise concluded within 6 months of filing of readiness and within 12 months of the date of the case filing; 98% within 9 months of filing of readiness and within 18 months of such filing ; and the remainder within 12 months of filing of readiness and within 24 months of the case filing; except for individual cases in which the court determines exceptional circumstances exist and for which a continuing review should occur.
[6] Mediation, and ADR in general, play an important role in family law disputes too. However, the issue of whether or not mediation in that context should be "mandatory" is a difficult and thorny one. ADR in the family law context is dealt with in Chapter 5.2 dealing with ADR and in Chapter 7 dealing specifically with Family Law.
[7] Dr. Julie Macfarlane, Court-Based Mediation for Civil Cases: An Evaluation of the Ontario Court (General Division) ADR Centre (November 1995). Dr. Macfarlane's evaluation covers cases referred to the Centre from January 1, 1995 to September 30, 1995.
[8] Id., at pp. 31 - 35.

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