Law Times

Law TiMes • March 12, 2012 FOCUS PAGE 11 BY JUDY VAN RHIJN For Law Times T he Federal Court is giving lawyers the op- portunity to participate in a global review of its rules and practices that look set to radically change the way judges run their cases. While in- dividual judges have been trying novel approaches to cope with an overburdened court, rule changes would impose a more proactive approach across the board. The Federal Courts Rules haven't been holistically revised since 1998. There have been many amendments addressing issues such as expert witnesses, class proceedings, representative ac- tions, summary judgments, and summary trial, but now the court is opening itself to a review of the whole architecture of the rules and the policies behind them. Jonathan Mesiano-Crook- ston, a commercial litigator at Goldman Hine LLP in Toronto, thinks the review is due to ne- cessity. "The Federal Court is just swamped with patent cases. There have been a number of ju- dicial initiatives in the last three years to cut down on these cases, so I think they are mainly look- ing for efficiencies." There will be no shortage of ideas in light of recent reforms in lower courts and some novel ap- proaches from the Federal Court judges themselves. "Judges know what is best for their cases," says Mesiano-Crook- ston. He observes that Federal Court judges have recently made some radical changes, many of which have been totally outside the rules, such as reversing the order of evidence, changing the rules on experts, and refusing to allow repetitious claims. "They've always had the power, but codifying these approaches will give judges more comfort," he says. "It's never a bad thing to spell things out rather than forcing the court to act on its own." The Federal Court has at this stage invited submissions on policy areas only rather than par- ticular rule changes. The plenary committee selected eight topics and has asked for particular sub- missions on those only. Laura Stewart of Gowling Lafleur Hen- derson LLP in Ottawa led The Advocates' Society's task force that made submissions on the Laura Stewart expects the Federal Court will follow the trend towards having a proportionality principle. topics. She's not concerned that the so-called global review was limited in that way. "The eight areas they iden- tified are sufficiently broad to encompass all the things The Advocates' Society wished to ad- dress," she says. "The consensus is that a broad policy approach is an excellent place to start. It's the first chapter in the book. Parties, legal counsel, and courts are in an adjustment stage, trying to tweak the system so it is most effective." First on the list of discussion points is court-led versus party- led procedure, something more commonly described as case management. "Should the court process be pushing the parties to settle?" asks Mesiano-Crookston. "The Ontario Superior Court has previously struggled with this and now has its mediation streams and provides oppor- tunities for the parties to be in the same room. It works well in Ontario courts. I don't see why it wouldn't work well in the Fed- eral Court." He points out that the cost of a trial is so prohibitive in the Feder- al Court that large companies are the only ones that can afford it. "It's twice the cost of a general commercial claim, which is al- ready too costly for your regular small- to mid-sized business. In the typical case, you don't have to spend much time or money to prepare for mediation. If it's not going to be fruitful, typically you know it right away." Stewart believes case man- is an area that could agement be modified to be even more valuable. Nevertheless, The Advocates' Society submitted that case management should be the exception rather than the rule and recommended using it only where needed and where it'd be effective. "The reason why we said that is that we have found that while some cases benefit from case management, in cases with more sophisticated parties and experi- enced counsel, the lawyers are effectively able to case manage it themselves," says Stewart. "The experience of The Advo- cates' Society is that case manage- ment applied uniformly across the board can lead to some slow- downs. We are trying to convey that they should not have case management for case manage- ment's sake." Another policy choice is be- tween a focus on trials or dis- position by summary judgment, an area where the Ontario Court of Appeal has recently laid out a broader standard. Options are open for ordering hybrid trials, hiving off issues or hearing part of the claim. "With these novel processes, every case becomes its own beast," says Mesiano-Crookston. "It gives the judge more con- trol, but that is part of their role. A passive judge only steps in at the end and gives judgment. I believe they have to be more proactive to encourage settlement, get things done, and get the parties to trial." He refers to the way arbitrators and mediators take charge. "They don't let people walk all over the process. They set a timeline. If the parties fall out of step, they are called to justify it." Mesiano-Crookston believes Federal Court judges are already stepping up to the plate. He has recently seen more judges saying that they don't want to see any more procedural battles. "You need to remember that only two per cent of cases go to trial," he says. "When facing that imminent lawyer's bill, people tend to get serious and feel the pressure to settle," he adds. Yet another policy change that would echo lower-court reforms is the introduction of the principle of proportionality. Stewart will be very surprised if the court doesn't introduce it. "That's certainly the trend. I expect the Federal Court would follow that trend by adopt- ing the proportionality principle." Suit e 900 4 5 Sheppar d Avenu e East, Willowdale, Ontario M2N 5W9 Toronto, Ontario M2N 5W9 Another area where The Ad- vocates' Society made submis- sions was on the costs scale, which it believes no longer re- flects the actual burden of litiga- tion. Mesiano-Crookston agrees that the current complicated tar- iff system is grossly out of date. "It has very little relation to what lawyers actually spend time do- ing. It would be better to copy the Ontario courts where you submit the bill and the judges de- cide what was reasonable based on what you actually did." Outside of the global review, the court is also considering other issues such as removing obstacles to the use of information technol- ogies. "Like many courts, the court itself may not have rules for elec- tronic filing, but individual judges have a certain level of receptive- ness," says Stewart. LT E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 evlitigation@rogers.com Vlit_LT_Jan9_12.indd 1 " He wins last, wins " He who " Earl Cherniak, Q.C. Appellate Advocacy Group, Lerners LLP The appeals process demands detailed and discriminating analysis of the existing record. It rewards the insight to identify and articulate a strategy upon which a case will turn. It favours those with an intimate understanding of the procedures and perspectives that define our appeal courts and Supreme Court. It is an unforgiving environment for those who approach unprepared. Whether you won at trial and face an appeal or lost at trial and wish to launch an appeal, we can help you determine the final outcome for your client. Call us. 12-01-03 11:38 PM Toronto: 416 867 3076 Toronto: 416 867 3076 London: 519 672 4510 London: 519 672 4510 Earl Cherniak, Q.C., Kirk Boggs, Mark Freiman, Kirk Stevens, Jasmine Akbarali, Brian Radnoff, Cynthia Kuehl Peter Kryworuk, Ian Leach, Andrew Murray, Carolyn Brandow Lerners LLP is 100-plus lawyers with a proud history of 80 years of successful litigation. www.lerners.ca/appeals proud on. Lerners LLP is 100-plus lawyers with a proud history of 80 years of successful litigation. www.lerners.ca/appeals www.lawtimesnews.com ntitled-2 1 12-03-05 10:42 AM Earl Cherniak, Q.C., Kirk Boggs, Mark Freiman, Kirk Stevens, Jasmine Akbarali, Brian Radnoff, Cynthia Kuehl Peter Kryworuk, Ian Leach, Andrew Murray, Carolyn Brandow Federal Court invites change Lawyers asked for feedback on rules, practices

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