List of Recommendations
For ease of reference, the recommendations contained in the Supplemental and Final Report are organized by chapter under the various headings where they are found in the Report. The recommendations begin in Part III of the Report.
- Chapter 5: MANAGEMENT OF CASES
- Chapter 6: SPECIFIC AREAS
- Chapter 7: FAMILY LAW
- Chapter 8: COST OF CIVIL JUSTICE
- Chapter 9: ENHANCEMENT OF PARTICIPATION IN THE SYSTEM
5.1 Case Management Regime and Rules
1. That a province-wide system of case management for civil cases, as described in Chapter 5.1, be implemented in Ontario, and that the draft set of case management rules contained in Appendix 2 be enacted (with the modifications noted in Chapter 5.1) 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 filing of a first response 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 in Chapter 5.1.
2. 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.
Further 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:
- 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,
- 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,
- 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.
3. 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.
4. 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, that the province-wide roll out of case management be completed by January 1, 2000.
5.2 Alternative Dispute Resolution
5. That there be mandatory referral of all civil, non-family, cases to a three hour mediation session, to be held following the delivery of the first statement of defence, with a provision for "opting-out" only upon leave of a Judge or Case Management Master. The session should be conducted by a mediator selected by the parties from a list of accredited mediators or, failing agreement by the parties, by a mediator selected from that list by a Judge or Case Management Master.
6. That court-connected mandatory referral to mediation operate with a roster of accredited private sector mediators and that a mixed panel of staff and private sector mediators be made available in those locations where there is an insufficient supply of qualified private sector mediators.
7. That the court-connected mediation program be funded on a cost recovery basis from filing fees paid by all arties to an action.
8. That, in order to contain the cost of a court-connected mediation program and ensure its affordability and accessibility, court roster mediators be paid a regulated fee.
9. That the Ministry of the Attorney General and Ministry of Finance should investigate the possibility of imposing an ADR surcharge or some other regulatory scheme in order to segregate the ADR filing fee or surcharge from the Consolidated Revenue Fund.
10. That a Working Group comprised of representatives of the Ministry of the Attorney General, the Judiciary, the Bar and the Public be established to consider the matter of court fees and to develop principles and procedures with regard to establishing their amount.
11. That the Government of Ontario, in conjunction with the Court, the Bar, ADR service providers and the consumers of such services, establish a consultation process which will lead to the development of standards and an accreditation process for ADR providers in Ontario, with a view to having such standards and accreditation process in place within a one year period.
That in the interim, until such time as a province-wide process is in place, prospective court roster mediators 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 ADR Project Steering Committee should be authorized to develop criteria for this assessment process, and Local Advisory Committees should be struck to review prospective mediator applicants based on those criteria, and to implement and monitor court-connected ADR programs where established.
12. That with respect to ADR in family law matters, as recommended in the First Report:
- ADR be considered at both the pre- and post- application stage of the proceedings;
- that, at the pre-application stage, potential family litigants be required to consider the use of ADR and indicate in the originating process whether they have used ADR techniques and, if not, why;
- that, at the post-application stage, the appropriateness of referral to ADR be considered at an early mandatory case conference to be held within two weeks of the deadline for the filing of the Response.
13. That mediators used for family law matters must be on a court approved roster, and further that, as a condition to being on the roster, family law mediators be required to provide services at a regulated fee, as well as pro bono services for those clients who cannot afford to pay.
14. That with respect to ADR in child protection cases:
- a Task Force be established to design a mediation process appropriate for child protection cases, including the establishment of province-wide criteria for case referral;
- that, at this time, referral to mediation in child protection cases be voluntary and the consent of all parties be required;
- that the government pilot and evaluate the results of child protection mediation in at least three sites in the province;
- that a joint educational initiative be established directed at the family bar and child welfare personnel on the subject of mediation in child protection matters;
- that the government consider amending the Child and Family Services Act to facilitate access to mediation at any point in the court process, but respecting the principle of early intervention;
- that mediators used for child protection cases must be on the court roster and must have specific child welfare training.
15. That situs provisions be reintroduced into Ontario law. These situs provisions should be of both general and specific application and apply to both actions and applications. There should be a venue provision of general application such as former Rule 245 for proceedings not subject to specific situs provisions.
16. That the Regional Senior Justices should be given the authority to transfer cases to a different location for hearing or for trial, subject to the following considerations:
- An order transferring a case to another location
should not be made without notice to the parties and without an
opportunity for them to be heard. In making an order for change
of venue, the judge should take into consideration the
- cost to the parties;
- the parties' place of residence;
- where the cause of action arose;
- the availability of judges or trial dates at the proposed transfer location;
- the witnesses' place of residence;
- the need for special facilities;
- the distance to the proposed transfer location;
- the length of the proposed trial or hearing; and
- any other relevant factor.
- Transfers between regions should be ordered only in exceptional cases, and provided the Regional Senior Justice of the region to which it is proposed the case be transferred has consented.
6.1 Small Claims Court
17. That a Task Force be established to review the policy objectives and context of small claims dispute resolution in Ontario and the appropriate type of forum and process for the resolution of such disputes, and to make specific proposals in that regard.
18. That at the present time the monetary jurisdiction of the Small Claims Court remain at $6,000. Any consideration of an increase in jurisdiction of the Small Claims Court should await the results of the formal evaluation of the Simplified Rules initiative.
That pending the release of this evaluation, an empirical study be undertaken to establish baseline data on the current operations of the Small Claims Court. This study should include an evaluation of the Small Claims Courts at three sites across the province. The three sites should represent a large urban centre, a medium centre, and a smaller rural centre. This study should be completed and evaluated prior to any increase in the jurisdiction of the Small Claims Court being implemented.
19. That lawyers, agents, and paralegals should not be excluded from representing parties in the Small Claims Court.
20. That lawyers' fees be limited to a maximum of 40% of the jurisdiction of the Small Claims Court (currently $6,000). The lawyer would be entitled to compensation up to this maximum (which would currently be $2,400), subject to an agreement to accept a lesser amount, regardless of the outcome in the case.
21. That businesses, such as collection agencies, should not be excluded from using the Small Claims Court.
22. That supplemental to Recommendation 48 in the First Report, training of Deputy Judges should include instruction in:
- a standardized approach to the hearing and disposition of Small Claims Court matters;
- consumer claims including applicable legislation;
- poverty law issues; and
- case management.
23. That a formal recruitment process for Deputy Judges be established and that candidates be screened with regard to the following criteria:
- membership in good standing of the Law Society of Upper Canada;
- a minimum number of years of legal experience;
- mediation experience;
- community service;
- professional reputation;
- an ability to take an active case management approach; and
- an ability to deal with unrepresented litigants.
24. That the "How to Make Small Claims Court Work for You" brochure be available in languages other than English and French.
That in addition to providing information on the Internet, experiments be conducted in providing information on the Small Claims Court through interactive electronic kiosks in shopping malls, community centres, town halls and libraries.
25. That a Working Group, which includes users of the Small Claims Court, be established by the Chief Justice and the Attorney General to make recommendations within 6 months of its creation with regard to:
- court processing standards for the disposition of Small Claims Court cases;
- evaluation processes to measure public satisfaction with the processes in place; and
- appropriate membership on the Small Claims Court Rules Subcommittee.
6.2 Construction Liens
26. That with respect to construction lien matters:
- construction lien cases should be case managed;
- the timeframes contained in the Construction Lien Act and in the proposed civil case management rules should be aligned as far as possible to ensure compatibility; in this regard, that the Construction Law Section of the Canadian Bar Association - Ontario be asked to consider this matter and report to the Ministry of the Attorney General with an appropriate proposal;
- construction lien cases, like other civil cases, should be subject to mandatory referral to mediation after a defence has been filed;
- there should be a specialized list for construction lien cases to ensure that they are dealt with quickly by knowledgeable people;
- it should be left to the discretion of the Chief Justice who should be assigned to hear these matters (i.e. whether Judges, Masters, or Case Management Masters) and the practice may differ from place to place.
6.3 Landlord and Tenant Matters
27. That an administrative tribunal for the resolution of landlord and tenant disputes be implemented in Ontario.
28. That while the Task Force is not in a position to recommend the exact nature and form of an administrative process, it should include the following characteristics:
- it should be a single process before an independent tribunal with exclusive jurisdiction of first instance;
- there should be a right of appeal to a single judge of the Divisional Court on questions of fact and law, with no automatic stay pending appeal;
- the tribunal should actively manage cases, rather than simply adjudicate, with the objective of ensuring the most expeditious and effective resolution of the dispute; in this regard, an early mediation process should be an important component;
- the tribunal should enhance public access by ensuring that its procedures are simple, easily understood, and responsive to the unique characteristics of such disputes and that information about its procedures are clearly and broadly communicated;
- the tribunal should be adequately staffed; adjudicators should be broadly representative of the Ontario public, properly trained, with demonstrated expertise and understanding of the unique issues in this area; similarly, its administration must be staffed by qualified and trained personnel at all levels;
- the tribunal must be properly and adequately funded from the outset to ensure its credibility and integrity and to guard against the crippling consequences of operating in a backlog environment.
29. That imprisonment as a sanction for contempt of court in the Small Claims Court, where the contempt relates to the non-payment of a judgment debt, be reconsidered with a view to imposing a less intrusive sanction.
30. That the Ministry of the Attorney General undertake a comprehensive review of all service rules with the objective of ensuring consistency in service requirements and optimizing the use of modern, effective and low- cost methods of service.
31. That the Ministry of the Attorney General review the Ontario Law Reform Commission's Report on the Enforcement of Judgment Debts and Related Matters, as well as the enforcement reform initiatives in Alberta, New Brunswick and Newfoundland, with a view to recommending the implementation of those reforms considered appropriate within 6 to 9 months, with consideration to:
- proposing new legislation to establish a reorganized, comprehensive and coordinated enforcement system for the enforcement of judgment debts, integrating virtually all enforcement measures under a single statutory regime;
- establishing a new central enforcement office under the supervision and control of a court official;
- proposing uniform statutory and regulatory provisions and operational practices to govern the enforcement of money judgments from every court level; and
- designing a system which identifies the body which is responsible and accountable and includes sufficient safeguards and regulatory controls to protect against abuses.
That the Ministry be guided in this review by the following set of principles articulated by the Alberta Law Reform Institute:
- Universal Eligibility: All the debtor's property should be subject to enforcement except property that is deliberately exempted;
- Just Exemptions: Deliberately exempted property should be sufficient to permit debtors to maintain themselves and their dependents with the necessaries of life;
- Creditor Initiative: The enforcement process should be creditor-driven, rather than being dependent on the initiative of a government official;
- One Statute: The enforcement process should be governed by one statute that describes the system of enforcement and its various processes in a consistent, coherent and logically ordered way;
- Judicial Supervision: Judicial supervision should be kept to a minimum, but parties should have easy access to the court when they require it; and
- Imprisonment for Debt: Imprisonment should not be, or seen to be, a remedy for the enforcement of money judgments.
Further that the Ministry should consult with those with expertise in this area, including consumer groups, collection agencies, the Bench, the Bar, Courts Administration, and the private sector.
32. That the Civil Rules Committee constitute a Working Group to consider and make recommendations concerning the current Rules of Procedure governing the discovery process with the objectives of preserving its essential disclosure principles while improving its economic effectiveness.
33. That a Family Law Review be undertaken to consider all family law issues, which would build on the work of the Civil Justice Review and the Family Law Working Group, and which would involve consultation with presentatives of all constituencies in this area including the family law Bench, Bar and members of the Public who have participated in family law proceedings.
8.1 Cost Research
34. That the Ministry of the Attorney General, in conjunction with the Judiciary, the Bar, and the Public, establish a Working Group to study the question of the "cost" of justice, both from an institutional or systemic perspective and from the perspective of individual litigants, with a view to completing a report within one year of the creation of the Working Group.
Further that the Working Group include in its study, in particular, the question of alternatives to the billable hour as a mechanism for establishing lawyers' fees, including the concept of "results based" or overall value for services based billing.
8.2 Contingency Fees
35. That contingency fee agreements be permitted in Ontario in all matters except criminal and family proceedings. Further, that a standard form agreement be used, which includes notice to the client of their right to have the agreement reviewed by the Court.
36. That, as recommended in the First Report, OCMAC and the RCMACs be recognized and accepted by the Bench, the Ministry, the Bar and the Public as an important piece 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.
Further, that with respect to OCMAC and the RCMACs:
- there be sufficient administrative staff to support and co-ordinate the work of these Committees, including following up on Committee recommendations;
- that the terms of the Public and Bar members be extended to three years;
- that the duties of the Chair be regularly rotated among Committee members;
- that annual meetings be held to review the status of Committee recommendations, set agendas for the next year, and assess the Committee's performance;
- that there be more input and access to these Committees by community stakeholders by inviting formal written submissions or presentations from interested groups;
- that a formal orientation program be developed, in consultation with the Regional Senior Justice and Courts Administration, to familiarize newly-appointed members to the Committees;
- that there be regular liaison between these Committees and local Bench and Bar Committees in order to identify justice system issues and to arrive collaboratively at the most effective solutions.