Law Times

www.lawtimesnews.com LAW TIMES 4 COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 4, 2019 BY AIDAN MACNAB Law Times IN an effort to speed up Ontar- io's civil justice system, on Feb. 1, the province's Superior Court began a case management pilot called the One Judge Model. The pilot grew out of a re- port from the Judiciary Com- mittee of the American College of Trial Lawyers called "Work- ing Smarter But Not Harder in Canada: the Development of a Unified Approach to Case Man- agement 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 dis- cussions, in which having a dif- ferent judge is more conducive to free discussion of the compara- tive strengths of each case and the compromise discussed be- tween the parties. Interlocutory motions will be avoided when possible and replaced by infor- mal procedures, such as meet- ings with the judge. Early in the proceedings, the case management judge will set the trial date, only to be ad- journed in exceptional circum- stances 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 pro- gram 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 proce- dures under Rule 76 of the Rules of Civil Procedure cannot par- ticipate. In Toronto especially, there is a "motions culture," says Mac- donald Allen, an associate in the litigation practice group at WeirFoulds LLP, referring to an increasing number of motions brought by plaintiffs and defen- dants 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, get- ting a motion date and waiting months to have it heard, he says. "I think it's a good initia- tive 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 dis- putes that are ultimately going to be beneficial to everyone who has access to the court system," he says. The need to speed up the civil trial system was illustrated in 2016 by Ontario Court of Ap- peal 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 do- ing things." "To stand by as civil courts continue to atrophy risks jeop- ardizing the health of our de- mocracy, our economy, and our private law, at least in this judge's assessment," said Brown. The ACTL report also point- ed to the World Justice Proj- ect's Rule of Law Index, which ranked Canada 18 th among "high-income countries" on ac- cess to civil justice. "Delay is attributable both to increasingly unsupportable de- mands on court time, but also to burdensome and largely unnec- essary interlocutory wrangling in the pretrial phase of cases. Needless and avoidable pretrial motions, excessive demands for documentary and oral discov- ery, backlogs in booking court dates, scheduling conf licts and adjournments that are too eas- ily obtained all factor into the frustrations experienced by liti- gants," states the ACTL report. In 2015, The Advocates' Soci- ety released a report on the best practices for civil trials. They recommended that the same judge case manage an entire pro- ceeding and "in some cases" also conduct the trial. The ACTL conducted an- other study called the Cana- dian 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 man- age 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 pos- itive 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." LT Macdonald Allen says a recently launched pilot program is a good initiative that shows that the court is concerned about the length of time certain cases are taking. Initiative grew out of report Pilot launched to speed civil justice NEWS Celebrating Change Agents in Law Bronze Sponsor Media Partner THE E B O L G AND MAIL NOMINATIONS NOW OPEN This is a call for nominations for the 2019 Lexpert Zenith Awards: Celebrating Change Agents in Law We encourage nominations of individual lawyers who have made changes to the legal profession and to thought leadership. Winners may be drawn from law firms, corporate legal and government departments, academia and alternative legal careers. To access the nomination form visit Lexpert.ca/zenith/nomination-form/ To view a description of the Awards visit Lexpert.ca/zenith/nomination-process/ Nomination deadline: February 28, 2019 Event date: June 18, 2019, Arcadian Court, Toronto For sponsorship inquiries contact us at MediaSolutions.Sales@thomsonreuters.com or call 416.649.8841. Lexpert.ca/zenith/ Untitled-6 1 2019-01-30 10:09 AM

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