Pilot launched to speed civil justice

In an effort to speed up Ontario’s civil justice system, on Feb. 1, the province's Superior Court will begin a case management pilot called the One Judge Model.

The pilot grew out of a report from the Judiciary Committee of the American College of Trial Lawyers called "Working Smarter But Not Harder in Canada: the Development of a Unified Approach to Case Management in Civil Litigation." For those approved, one case management judge will sit at all pretrial hearings through to the end of the trial — other than case conferences for settlement discussions, in which having a different judge is more conducive to free discussion of the comparative strengths of each case and the compromise discussed between the parties. Interlocutory motions will be avoided when possible and replaced by informal procedures, such as meetings with the judge.

Early in the proceedings, the case management judge will set the trial date, only to be adjourned in exceptional circumstances approved by the judge, who will make pretrial orders on evidence admissibility for efficiency's sake. The Superior Court hopes one-judge case management will be faster and less expensive than the status quo and will evaluate the program after two years.

To be included in the pilot, the case must be approved by a regional senior judge and both parties to the litigation. Those cases using simplified procedures under Rule 76 of the Rules of Civil Procedure cannot participate.

In Toronto especially, there is a “motions culture,” says Macdonald Allen, an associate in the litigation practice group at WeirFoulds LLP, referring to an increasing number of motions brought by plaintiffs and defendants clogging up civil courts.

While Allen doesn’t think the two-year pilot will eliminate that culture, the informal procedures will eliminate the necessity of preparing motion materials, getting a motion date and waiting months to have it heard, he says.

“I think it's a good initiative from the court and I think it shows that the court is really concerned about the length of time certain cases are taking and the associated costs with those cases, and they're doing their best to come up with innovative methods of adjudicating disputes that are ultimately going to be beneficial to everyone who has access the court system,” he says.

The need to speed up the civil trial system was illustrated in 2016 by Ontario Court of Appeal Justice David Brown, who said the fundamental goal of the system — the “fast, fair and cost-effective determinations of civil cases on their merits” — was not being achieved and that bench, bar and government “need to ditch the old way of doing things.”

“To stand by as civil courts continue to atrophy risks jeopardizing the health of our democracy, our economy, and our private law, at least in this judge’s assessment. To avoid that risk, we must change our ways and work to re-invigorate our public civil courts,” said Brown.

The ACTL report also pointed to the World Justice Project’s Rule of Law Index, which ranked Canada 18^th among “high-income countries” on access to civil justice.

“Delay is attributable both to increasingly unsupportable demands on court time, but also to burdensome and largely unnecessary interlocutory wrangling in the pretrial phase of cases. Needless and avoidable pretrial motions, excessive demands for documentary and oral discovery, backlogs in booking court dates, scheduling conflicts and adjournments that are too easily obtained all factor into the frustrations experienced by litigants,” states the ACTL report.

In 2015, The Advocates' Society released a report on the best practices for civil trials. They recommended that the same judge case manage an entire proceeding and “in some cases” to also conduct the trial.

The ACTL conducted another study called the Canadian Case Management Project, where they interviewed judges in Canada known as “leaders in case management.” The ACTL found that those consulted were divided on the use of a single judge to case manage and then also preside over the trial.

This model has been tried in the U.S. and the consistency of one judge presiding has had positive results, says Erin Durant, an associate at Borden Ladner Gervais LLP in Ottawa.

“Cases tend to move through the system much faster because you have the judicial oversight from the beginning,” she says. “Whereas, in Ontario, you issue the proceeding and the lawyers really dictate the speed at which things happen without that level of judicial oversight.”

The ACTL report included some drawbacks to the one-judge model. Some of the 30 U.S. judges interviewed for the report thought there was a risk that both the case management judge and litigants could become biased in the lead-up to trial.

“If one judge is following along the entire case and one of the parties is acting unreasonable during it, there's this fear that the trial judge might be coloured by the earlier antics and not be able to decide the case as impartially,” Durant says. “So, sometimes, people like to have separate judges dealing with the interlocutory matters and the final matters.”

But Durant says she doesn’t see the disadvantage of having one judge for the entire case, provided parties conduct litigation in accordance with the rules.

Judges also told the ACTL they would not be able to be as candid with parties as a case management judge, knowing they’d also be the trial judge. The judge’s frankness on the merit of their arguments may lead litigants to doubt the judge’s ability to be fair and objective.

Allen says more likely what will happen is clients and their lawyers will become better informed of their case’s strengths and weaknesses and how the case will be eventually judged.

“All that's going to do, in my opinion, is actually help the parties settle the matter earlier,” he says.

“This will give far more opportunity for the parties to hear from ultimately the one who's going to decide the case about where they likely sit on the merits of it,” he says. “And that should help to resolve some of these cases sooner rather than later, if at all possible.”

Durant says another possible downside — the need to use just one judge — may cause delay when it is a judge who works in rural and remote jurisdictions in which they are expected to travel between courthouses.

“I think, overall, it's going to be positive and, just as with anything else that's new, it is getting the word out and convincing people that it's worth trying,” Durant says.