Law Times

July 22, 2013

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TOEWS REPLACED ONLY IN ONTARIO? B.C. court rejects claim for privacy tort Follow LAW TIMES on www.twitter.com/lawtimes $4.00 • Vol. 24, No. 24 P3 FOCUS ON Blaney brings friendlier face to public safety P7 Forensics/Private Investigators l aw TIMes P8 CO V E R I N G O N TA R I O ' S L E G A L S C E N E • W W W. L AW T I M E S N E W S . CO M July 22, 2013 ntitled-4 1 12-03-20 10:44 A Task force seeks clarity on judicial mediation Report suggests separating settlement from pretrial process BY YAMri tADDese Law Times O ntario's current pretrial system is ineffective when it comes to using judicial resources to arrive at a settlement, according the Ontario Bar Association's task force on judicial dispute resolution. In its first report released this week, the task force recommends separating the judicial settlement facilitation process from the pretrial component under the Rules of Civil Procedure. Pretrial conferences in Ontario should, with consent of the parties, involve two sessions that deal with trial management and a possible settlement individually, according the report. In Ontario, every trial must first undergo a pretrial conference, says David Sterns, one of the authors of the task force report. "Because of the dual function there, most people approach pretrial conferences not knowing what to expect and not being sufficiently prepared," he says. "And counsel really can't adequately prepare because it could go in the direction of managing the trial, which is the opposite of settlement, and it could go in the direction of a settlement, which is the opposite of managing a trial." It's not the best use of the judiciary's input on settlements, adds Sterns, noting that aspect shouldn't be "an afterthought" in a pretrial conference. "We think there is just a lot of judicial resources that are being devoted to a pretrial function that has outlived its usefulness," he says. 'We think there is just a lot of judicial resources that are being devoted to a pretrial function that has outlived its usefulness,' says David Sterns. Photo: Laura Pedersen "We are now at a time where the mediation/settlement process has become more sophisticated. It's not an afterthought. It shouldn't be relegated to the last question as you're walking out of a pretrial conference. So we're recommending that there be splitting of the pretrial conference into a settlement discussion if parties want it or a pure, focused trial management process but they not be blended." Toronto litigator Earl Cherniak agrees with the task force's suggestion. "They have it right," he says. "Two completely different functions ought not to be done by the same person. Case and trial management should be done by the trial judge as is the case in all commercial arbitration. The trial judge or arbitrator cannot be involved in mediation or settlement negotiation . . . but has an obligation to do what he or she can to effect an efficient trial. This is the everyday stuff of what commercial arbitrators do, starting with the initial conference with counsel, and continuing throughout." James Morton, head of the civil litigation group at Steinberg Morton Hope & Israel LLP, also feels pretrials are "wasted" because counsel don't know what to expect. But Morton worries that splitting the pretrial conference into two separate processes may add to the already-overtaxed court's workload and therefore increase costs and create delays. "My concern is perfection being the enemy of the good," he says. "Most cases in the civil courts are fairly small and most cases in the civil courts are very routine. Cost is a major issue and access to justice is impacted every time there's another step you have to take." See Report, page 5 BY MArG. BruineMAn For Law Times A Law Society of Upper Canada hearing panel has partly vindicated a Markham, Ont., lawyer in what her counsel says was a test case on the rules surrounding high-volume, technologically based practices. "Deanna Natale is just an incredibly respected and accomplished woman and an extraordinary lawyer," says her counsel, William Trudell, following the hearing panel's recent ruling in the long-running case. The law society accused Natale of breaching the Rules of Professional Conduct by sending out demand letters and draft statements of claim as part of her debtcollection work on behalf of clients. It also accused her of failing to assume complete professional responsibility for her practice by not directly and effectively supervising staff delegated to collection activities. Trudell says Natale was carrying the burden for the entire profession because the matter was really a test case on the larger issue of highvolume, technologically based practices. Ultimately, the hearing panel found the law society hadn't proven the first allegation on a balance of probabilities. But it did find a breach on the issues related to supervision of staff. The hearing panel will consider a reprimand this week. In its decision, the three-member panel chaired by Howard Goldblatt stressed that there is a role for the law society to play on this issue. At the root of the dispute was the structure of the practice, a onelawyer office dealing with a high volume of files using computergenerated standardized letters and forms and an absence of individualized file review. Over the course of four years, the office issued 200,000 demand letters about possible actions with only one per cent of them or less actually pursued in court. Mark Silverthorn, a Kitchener, Ont., lawyer who had previously done collections work and now acts for consumers, went public with his concerns about Natale's approach See Lawyer, page 5 PM#40762529 Panel calls for clear rules on technology-based practices 'She was carrying a real load for the profession,' says William Trudell of his client, Deanna Natale. ONTARIO LAWYER'S PHONE BOOK 2013 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS More detail and a wider scope of legal contact information for Ontario than any other source: 26,000 lawyers 9,000 law firms and corporate offices OLPB_LT_Feb11_13.indd 1 Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation 13-02-06 12:58 PM

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