“There is no justice without access to justice”. These words were stated by Canada’s then Supreme Court Chief Justice Beverly McLachlin during a presentation to the Faculty of Law at the University of Toronto in 2011, and they still hold true. At the Opening of the Courts in 2014, Chief Justice of the Ontario Court of Appeal George Strathy stated:
Having been a lawyer and a judge in this province for over 40 years, it strikes me that we have built a legal system that has become increasingly burdened by its own procedures, reaching a point that we have begun to impede the very justice we are striving to protect. With the best of intentions we have designed elaborate rules and practices, engineered to ensure fairness and achieve just results. But perfection can be the enemy of the good, and our justice system has become so cumbersome and expensive that it is inaccessible to many of our own citizens.
Litigation cases are taking too long to move through the system. Ontario had to find a way to relieve some of the backlog that has been piling up and straining judicial resources. In 2018, I had the pleasure of participating in a case management pilot planning group chaired by Chief Justice Strathy, that also included members of the judiciary, the Ministry of the Attorney General, the Ontario Bar Association, the Advocates Society, the Law Society, and others, with the goal of examining support to explore utilizing a one judge model here in Ontario.
One of the key concepts involved in the one judge model is that a case is case managed by a judge who will oversee all administrative aspects of the case, including motions, pretrials, and ultimately, trial. The only exception will be case conferences dedicated solely to settlement discussions, for which a different judge will be brought in to preside over the conference and explore settlement possibilities.
Another key feature of the one judge model is that in most cases the trial dates will be front end loaded, so that at the beginning of the case the litigants will already know their trial date. The trial date can only be adjourned with the approval of the case management judge. For efficiency in the scheduling or conduct of the trial, the case management judge may make pre-trial orders concerning the admissibility of trial evidence.
Substantial research has been conducted by the American College of Trial Lawyers that examined the potential benefits of a one judge model in a document entitled “Working Smarter Not Harder in Canada: The Development of a Unified Approach to Case Management in Civil Litigation”. Below are some of the key points emerging from that research:
- The lawyers conducted themselves with greater respect and civility towards one another when the same judge was connected to all aspects of the litigation;
- Interlocutory disputes are discouraged wherever possible, and when they arise, they are generally disposed of quickly and informally in the absence of extensive briefing and oral argument. Formal motions can only be scheduled with the consent of the case management judge;
- As the same judge oversees all pretrial motions and the trial, a greater number of issues are managed prior to the trial which results in a more efficient trial process as many issues are dealt with pretrial, and the judge is already familiar with the facts and issues in the case by the time the matter proceeds to trial.
The new case management pilot project is voluntary at this stage, and cases can only be included in the project with the approval of the Regional Senior Judge or his or her designate. The program officially begins February 1, 2019. Simplified procedure cases under Rule 76 are ineligible for this program. The extent to which the pilot is available in Halton, and the number of actions admitted into the pilot, will depend on available judicial resources and Halton’s judicial scheduling practices.
When determining whether to include a case in the pilot, similar to Rule 77, the Regional Senior Judge or his or her designate will take into consideration a variety of factors, including:
- The complexity of the issues of fact or law
- The importance to the public of the issues of fact or law
- The number and type of parties or prospective parties, and whether they are represented
- The number of proceedings involving the same or similar parties or causes of action
- The amount of intervention by the court that the proceeding is likely to require
- The time required for discovery, if applicable, and for preparation for trial or hearing
- In the case of an action, the number of expert witnesses and other witnesses
- The time required for the trial or hearing
- Whether there has been substantial delay in the conduct of the proceeding.
The Practice advisory will supplement existing practice directions, and also supplements already existing civil case management provisions under the Rules of Civil Procedure.
If you wish to apply to participate in the pilot project, parties may apply to participate in the pilot by writing to the Regional Senior Judge or sending a completed application form (form available at: http://www.ontariocourts.ca/scj/files/forms/application-ccmp-EN.docx). The letter/application form must indicate the following:
- The court file number
- Title of proceeding
- The court location where case was commenced (or to which it has been transferred)
- The reasons why case management is needed to facilitate the resolution of the dispute
- Confirmation that all parties consent to the following terms of the pilot:
- The case management judge will preside at the trial of the case, and
- Interlocutory disputes will be resolved though informal processes, such as case conferences, and no formal interlocutory motions will be scheduled unless the case management judge orders otherwise.
You will receive written confirmation if your case has been accepted into the pilot project, along with the name of the case management judge.
The expected duration of the pilot is two years. All parties participating in the pilot project will be encouraged to complete an anonymous survey to assist in evaluating the one judge civil case management model.
For more information, please refer to http://www.ontariocourts.ca/scj/practice/civil-case-management-pilot/.