The Rules of Civil Procedure codify two general models for the management of litigation before trial. They are the ordinary procedure – the hands-off, traditional model – and the caseflow management model.
In the ordinary procedure, the parties themselves generally control the progression of an action as it moves, however quickly or slowly, to trial. The rules do contain three control devices: the status hearing (rule 48.l4), matters assigned to a specific judge for management purposes (rule 37.15) and the general authority of the court to make appropriate orders and directions under rules 1.04 and 1.05.
The caseflow management model is different. Under case management, certain steps must be completed within prescribed timelines, failing which the court may intervene. For example, under rule 77 (and 24.1) mandatory mediation and settlement conferences must occur within specified times.
Case management is not uniform throughout the province. It applies in civil proceedings commenced in Ottawa and Essex Country (Windsor), and it used to apply in Toronto. In December 2004, rule 77 (case management) ceased to apply in Toronto. It was replaced with a three-year pilot project set out in rule 78. Through rule 78, Toronto actions are subject to fewer case management timelines and reduced rule-based judicial control. They are, however, subject to status hearings (rule 48.14), mandatory mediation (rule 24.1) and the assignment of an action by a judge or case management master to rule 77 case management where the parties consent or where “a party has taken steps that amount to chronic and substantial obstruction of the action.”
On the subject of litigation management, it seems clear that there are two central issues:
- Whether a form of litigation management should be available for certain cases that are not subject to case management rules.
- Whether any changes should be made to the case management rules (rules 77 or 78).
Litigation Management Outside Case Management Rules
Rules 48.14 and 37.15 permit active management by the court of ordinary procedure cases if certain conditions precedent are met. However, many question whether these rules confer sufficient authority to manage complex or otherwise difficult cases early enough in the litigation process. Some who responded in the consultation process expressed concern about the ability of a party to intentionally delay a proceeding with impunity. Many suggested that there should be immediate access to some form of case management in cases where there is a self-represented litigant.
Early judicial management is contemplated in the recommendations of the British Columbia Civil Justice Reform Working Group report. It recommended the introduction of a mandatory, early case-planning conference, to be presided over by a judge and held in each case where parties engage the civil justice system beyond initiating or responding to a claim. Its purpose would be to help manage the litigation early, proportionate to the needs of the case, and to canvas settlement. 87
Management of cases not subject to case management was also discussed in Ontario's Discovery Task Force Report. Since oral and documentary discovery tend to be the most significant pre-trial steps in the litigation process, the task force's discussion on discovery management is relevant here. The task force concluded that the introduction of discovery management mechanisms into Ontario's discovery process would assist in reducing many of the key problems identified in its review. These problems include late delivery of affidavits of documents, incomplete and untimely production, excessive requests for information and documents, difficulties and delays in scheduling discoveries, improper refusals, delays in fulfilling undertakings, and disagreements as to the scope of discovery. The task force noted that parties in most cases are generally able to manage the discovery process efficiently without any court intervention, and it was therefore unwilling to impose a mandatory discovery management scheme for all cases. Instead, it found that court-assisted discovery management would be of greatest value in complex cases or those in which discovery problems can be anticipated. 88
Lawyers expressed general support for limited case management, that is, for case-tailored management where required – not a one size fits all approach to the management of cases. Those who favour a case management model do so on the basis that some lawyers cannot be relied on to move cases to completion within a reasonable time. They argue that the success of case management in Ottawa provides evidence that case management works and that it would, therefore, be a mistake to return to the ordinary procedure model.
One obvious feature of case management is that, although it is helpful in some cases, it is not needed in all cases, on any reasonable assessment. In those cases where counsel can effectively move the case forward, case management adds layers of cost that some convincingly say are unnecessary. It seems to me that the success of case management in Ottawa is a direct product of the proportionality-driven approach of the case management master there, who recognizes that some cases need active intervention and others none.
Case management or no case management, there are cases where it is clear to me that quick access to a judge (or master) would be useful in combating tactical, or even unintentional, delay.
Litigation management by a single judge or master for those cases that require it, as permitted under rule 37.15, has several benefits. It saves judicial time since parties will not have to get a different judge up to speed each time an issue arises in the case. It may also have a calming effect on the conduct of litigious parties and counsel, as they will come to predict how the judicial official assigned to the case might rule on a given issue. I was advised that this has been the experience of many lawyers who appear regularly before Master R. Beaudoin who, until recently, was the sole case management master dealing with case managed cases in Ottawa.
As a general matter, it would enhance the efficiency of the system if masters had a broad jurisdiction to act in response to matters assigned or delegated to them by a judge. The Rules Committee can consider what direct jurisdiction masters should have.
Lastly, on the subject of masters, it seems to me that no useful purpose is served by maintaining the distinction between masters and case management masters. All masters should exercise the same jurisdiction and receive the same salary. To avoid unseemly and costly disputes about remuneration, masters' remuneration should be linked to that of the Ontario Court judges.
Any amendment to rule 37.15 should therefore provide for speedy mechanisms to obtain direction from the managing judge, master or case management master. These mechanisms may include a telephone or in-person case conference or a simplified process for motions to be made in writing with or without affidavits – similar to mechanisms currently in place under rules 76 and 77. This approach is also consistent with recommendations found elsewhere in this report that encourage obtaining orders on certain issues early, such as early leave for more than three experts or bifurcation of actions. Since only one judicial official would be managing the case in the steps leading up to trial, he or she would be in a good position to make such pre-trial orders early, based on the needs of the case.
No test is currently prescribed in rule 37.15 for the individualized management of “complicated proceedings” or a series of “proceedings that involve similar issues.” The test to obtain case management under rule 78.12(3) is whether “a party has taken steps that amount to chronic and substantial obstruction of the action.” In making this determination, the court is required to consider the factors set out in rule 77.09.1(5). The rule 78 test, however, may be set too high. For example, in cases without chronic and substantial obstruction, rule 78.12(3) would not permit case management where a case is inherently complex or where the unique nature of the case, witnesses or parties would likely result in frequent disputes during the proceeding. Rule 77.09.1(5) lists these and other factors that are often indicative of the types of matters that would benefit from individualized judicial management. In such cases, early direction from an assigned judge or master could assist in resolving procedural disputes.
My preference is that rule 37.15 should be used as the authority for case-tailored management where that kind of assistance is needed. The criteria contained in rule 77.09.1(5), in my view, provide an appropriate and non-exhaustive list of factors that the court should consider when deciding which cases are likely to need and benefit from individualized management. I note that these are the same criteria to be considered when deciding whether a rule 78 case involves “chronic and substantial obstruction.” Accordingly, I think that these criteria should be considered when deciding whether a case would likely benefit from individualized management under rule 37.15.
In Chief Justice Smith's Practice Direction dated August 26, 2005, a party who seeks to be subject to rule 37.15 may make a request in writing to the Regional Senior Judge of their respective judicial region to have a judge appointed. 89 I think that this process should be set out in a newly amended rule 37.15. The written request should describe how the case meets the criteria in rule 37.15 and should be copied to all other parties.
Case Management Rules (77 and 78)
Since rule 77 case management applies in both Ottawa and Windsor, how things have worked out in those judicial centres is instructive. According to the County of Carleton Law Association submission, case management in Ottawa was successful over its first six years. Cases requiring judicial intervention were given timely access to the case management master or a judge where necessary. Mandatory mediation was viewed as a success in promoting settlement.
However, in the last three or four years the efficiency of the civil case management system in Ottawa has decreased, largely as a result of the inadequate complement of judges to manage civil cases. I recognize and accept that these judges are being squeezed given the constitutional and societal pressures for a speedy trial in criminal and family matters. I believe this is a problem that is not unique to Ottawa.
In Windsor, the bar noted that the system should provide more flexibility in the timing of the mandatory mediation. The bar suggested that for cases involving more than $50,000, the mediation should take place after examinations for discovery have been completed. The bar expressed some concern about rule 77 case management based on cost. Some suggested that the ordinary procedure is sufficient to move cases through the system. Those proposing a shift away from rule 77 case management in Windsor noted that case management has not been expanded throughout the province and that Toronto opted out of rule 77.
The Windsor Case Management Steering Committee may wish to seek further input from the local bench and bar as to whether any reforms to rule 77 in Essex County ought to be made. Similarly, the Civil Rules Committee may wish to reconsider the future role of rule 77 in the province. In Windsor, case management was originally introduced as a pilot project on September 4, 1990. 90 Civil case management under rule 77 came into force on February 3, 1997 in Toronto and Ottawa and was expanded to Windsor on December 31, 2002 to maintain a case management regime in Essex County and as part of an overall plan to expand rule 77 throughout the province.
In my view, a “case management if necessary, but not necessarily case management” model makes considerable sense. This is the process in place in Toronto, which has made substantial progress in reducing delay for both trials and motions. Some actions defined by type – such as medical/hospital negligence cases, which tend to be complex – would clearly benefit from case management or at least the appointment of a judge to address areas of ongoing disagreement.
Case management in Ottawa, as it works on the ground, and rule 78 case management in Toronto are closely related in practice. The master in Ottawa (now there are two masters) seems to know which cases require hands-on management and which do not. He responds quickly to requests from counsel for management assistance. That is how I think case management is supposed to work in Toronto under rule 78.
In my view, full-blown case management applicable to all cases is too costly. There is, as I have said, no doubt that case management is needed for some cases. However, it is not needed for all of them. The status hearing rule will control manifestly delinquent actions. An expanded rule 37.15 would permit counsel to obtain assistance from a judge (or master) when required. Simply put, those cases that do not require management will obviously not benefit from case management, and they should therefore not be forced to bear the extra costs that accompany it.
Recommendations (Litigation Management)
- Amend Rule 37.15 to:
- Permit the court to order that a case be subject to rule 37.15 management by an individual judge, master or case management master where it is of the opinion that the case could benefit from management by a single judicial official, after considering the criteria contained in rule 77.09.1(5). An order to make a case subject to rule 37.15 may be made by the court on its own initiative or on written request to the Regional Senior Judge of the respective judicial region where the case was commenced, copied to all other parties.
- Allow for speedy mechanisms to obtain direction and orders on procedural matters from the managing judge, master or case management master for cases that are governed by rule 37.15. These mechanisms may include a telephone or in-person case conference or a simplified process for motions to be made in writing with or without affidavits, similar to the processes in rules 76 and 77.
- In the evaluation of rule 78, consider amending rule 78.12 to make the test and process to have a case subject to rule 77 case management consistent with the recommended process and test to have a case subject to individualized management under rule 37.15.
- The Office of the Chief Justice of the Superior Court of Justice and the Ministry of the Attorney General should monitor access to case management masters for civil case managed actions in Ottawa to ensure that the complement of case management masters is sufficient to meet the civil case management needs there.
- The Windsor Case Management Steering Committee should seek input from the local bench and bar as to whether any reforms to rule 77 in Essex County ought to be made.
- The Civil Rules Committee should consider the future role of rule 77 in the province. Relevant to this investigation would be any plans to expand the operation of rule 77, an assessment of the current operation of rule 77 in Windsor and Ottawa as an effective time- and cost-savings mechanism, the evaluation of rule 78 in Toronto, and alternative case management and non-case management models that may possibly be used to replace rule 77 (e.g., the ordinary procedure, rule 78, other models).
- Any proceeding in which a party is self-represented should be managed to the extent required, either under an expanded rule 37.15 or under rules 77 and 78.