Title: Civil Justice Reform
1Civil Justice Reform
2Canadian Judicial Council, Access to Justice
Report on Selected Reform Initiatives in Canada
(June 2008)
3About the Canadian Judicial Council
- The Canadian Judicial Council is a federal body
created under the Judges Act with the mandate to
promote efficiency, uniformity, and
accountability, and to improve the quality of
judicial service in the superior courts of
Canada. - The Council is also mandated to review any
complaint or allegation against a superior court
judge. - The Council is chaired by the Chief Justice of
Canada, currently the Right Honourable Beverley
McLachlin. There are 38 other Council members,
who are the chief justices and associate chief
justices of Canadas superior courts, the senior
judges of the territorial courts, and the Chief
Justice of the Court Martial Appeal Court of
Canada.
4About the Report
- The Sub-committee on Access to Justice Committee
was concerned with access to justice, and in
particular with mounting costs in the justice
system. - They set about to develop a focused inventory of
reforms which are designed to promote effective
and affordable justice. - The committee requested that the Canadian Forum
on Civil Justice (the Forum) conduct research to
develop an inventory of Canadian civil justice
reform initiatives in the following five agreed
upon categories
51. Proportionality
- In terms of the research, the scope of the
subject was defined as procedural rules which - a) explicitly impose an obligation on the parties
or the judge that proceedings be restricted to
what is proportional to the monetary amount being
claimed or the importance of a non-monetary
claim, (eg. Québec art. 4.2) or - b) mandate expedited litigation procedures based
on the amount of money at issue (eg. BCs Rule
68).
6Trends Relating to Proportionality
- While rules of civil procedure often state an
intention of providing for cost effective
proceedings, recent amendments have begun to more
clearly delineate the requirement that procedure
be closely tied to the importance and complexity
of the issue.
7Noted Examples
- BC Justice Review Task Force Civil Justice Reform
Working Group Draft from 2007 - Ontario Civil Justice Reform Project report
- mechanisms to ensure proportionality - automatic
expedited tracks for cases under a monetary
thresholds - Time based expedited tracks
- Recent proposed rules to move away from dollar
based triggers
82. Experts
- a) Imposing an obligation on judges to play a
more active role in assisting parties to limit
the costs and delay associated with the use of
experts. - b) Limiting the number of experts which can be
called. - c) Requiring agreement on a shared expert.
- d) Mandating full disclosure of expert reports
within a reasonable time-frame and imposing a
continuous obligation to disclose reports that
become available at a later time. - e) Removing any requirements for an expert to
attend trial if a full report is submitted. - f) Imposing costs on a party that requires the
other partys expert to testify at trial
unnecessarily, or unreasonably refuses to accept
certain experts.
9Recent Trends
- introduction of an expedited litigation track
- changes to the standard litigation track
- stipulation of time limits for the submission of
expert reports - limitation on the number of experts
- Allowance of court appointed experts or joint
experts - Provisions allowing the court to order
conflicting experts to meet and attempt to
reconcile their differences
103. Point of Entry Assistance
- The research into point of entry assistance
identified programs with a physical presence in
or near a courthouse which are designed for and
available to persons entering the civil justice
system. These programs offer - a) information about dispute resolution options
in a multi-option justice system, such as
community mediation and court-annexed mediation,
and - b) referrals to available resources for obtaining
legal advice and information, taken from a
well-developed inventory of resources. (These
resources could include public legal education
and information programs, legal aid, duty
counsel, legal clinics, pro bono services, and
the private Bar.)
11Recent Trends
- Assisting unrepresented family litigants
creation of Family Law Information Centres - creation of Law Information Centres
- creation of an information and referral resource
- single point of entry for the family justice
system - plans exist to broaden the mandate of justice
service centres to cover all civil matters -
providing parties with legal information, helping
parties in deciding whether or not to commence a
legal action and to access non-legal community
resources
12An example
- The Ontario Civil Justice Reform Project
recommended the establishment of self-help
centres - Clear-language information and instruction on
various Superior Court procedures. - Referral information to existing programs and
services. - Assistance with completion of forms through the
use of lawyer volunteers, online document
assembly software or a combination of both. - Summary advice and duty counsel services by
volunteer lawyers, focusing on identification of
legal issues and assessment of legal merits. - Representation at hearings and settlement
conferences by volunteer lawyers
134. Discovery
- The purpose is to reduce cost and delay by means
such as - a) Limiting the time frame in which discovery
takes place. - b) Narrowing the scope and standard of relevance
in both oral and document discovery. - c) Capping the number of discovery events that
can be undertaken by the parties. - d) Expediting the scheduling of discovery.
- e) Eliminating oral discovery in expedited or
simplified procedure rules. - f) Penalizing duplicative or cumulative
discovery. - g) Introducing a mandatory discovery conference
between counsel and/or before a judge. - h) Creating a more effective process for
resolving conflicts as they arise in the
discovery process, through case management and
other civil procedural rule reform.
14Recent Trends
- rules which place time limits on discovery and
even prohibit discovery outright for simplified
procedure cases. - statement of a principle encouraging judges to
intervene with discovery if it appears to be
abusive, vexatious or futile. - A requirement for the exchange of witness lists
has been implemented in several expedited
litigation procedures - Ontario prior to hearing motions relating to
unanswered undertakings and refusals, a form must
be completed by both parties setting out the
basis of the refusal and why the information is
relevant to the issues in the action - Limiting interrogatories (posing of questions)
- Narrowing the scope of discovery and standard of
document disclosure
155. Case-flow Management
- There is confusion over terminology but for
purposes of the Inventory Reforms, case-flow
management refers to all practices relating to
the management of cases, regardless of where they
fall along the continuum of case and case-flow
management practices. - With respect to the study, case-flow management
refers to the systematic management process by
which a court supervises the progress of its
cases from beginning to end. This may include
early court intervention in the definition of
issues, fixing deadlines and assessing the
complexity and value of a case. - Types of case-flow management systems include
- Differential Case-flow Management
- Individual Case Management
- Master List
16Recent Trends
- Nova Scotias Halifax Caseflow Management Project
- Québecs 2002 Code of Civil Procedure revisions
- Ontarios Rule 77 and 78
- The BC Civil Justice Reform Working Group
suggested that proposed Case Planning
Conferences amendments to Rule 68
17Conclusion of Introduction
- The primary goal of civil justice reform is the
just resolution of disputes through a fair but
swift process at a reasonable expense and the
categories of reform outlined in the CJC
database take this into consideration.
18Expert Evidence/Witnesses in the Federal
CourtsBeatrice G. Mloka
19Federal Court Rules- Expert Evidence (2006)
- September 2004 Federal Court Rules Committee
released a discussion paper which proposed the
amendments to the Federal Court Rules, 1998 (The
Rules) with regard to expert evidence. These
amendments would make the admissibility of the
evidence of expert witnesses conditional upon the
service of affidavits, setting out the proposed
evidence of the experts prior to the pre-trial
conference.
20Purpose
- To ensure that the parties are ready for trial.
Such readiness facilitate the setting of earlier
trial dates and reduce the delay associated with
expert evidence. - To give the parties sufficient time before the
trial to examine and respond to expert evidence. - Full and candid settlement discussion is only
possible at the pre-trial conference stage if all
expert reports are available. - The expense inherent in obtaining expert reports
may assist in drawing to the attention of
litigants the benefits of settlement at an
earlier stage in the process.
21The Provisions Under the Rules , Before the
Amendments
- There is no requirement to prepare the affidavits
of expert witnesses for the pre-trial conference
R. 279(b) 281. - However, any affidavits in existence at the time
of the pre-trial conference should be made
available to the Court and to other parties R.
258 (4).
22Relevant Provisions in the Rules of Other
Courts-Three Approaches
- Admissibility of expert evidence conditional upon
service at some stated time before trial, e.g.
The BC Supreme Court Rules, Alberta Rules of
Court, and Nova Scotia Civil procedure Rules - Admissibility of expert evidence conditional upon
service at some stated time before trial- Expert
reports existing at pre-trial conference to be
available, e.g. Ontario, New Brunswick,
Newfoundland and Prince Edward Island. - Admissibility of expert evidence conditional upon
service of that expert witnesss report before
pre trial conference, e.g. Manitoba, Saskatchewan
and Quebec
23Federal Court Rules Amendments
- Rule 258 (4) (5)- Requires experts Affidavit
or statement before pre- trial conference. - Rule 262- The party should file a pre-trial
conference memoranda within 30 days after being
served with the requisition. - Rule 265- Service of experts affidavit or
statement - Rule 279(b) 281- Admissibility of experts
evidence at the trial
24Federal Court Rules- Expert Witnesses (2008)
- Proposed amendments to the existing Federal Court
rules and practices to ensure expert evidence is
adduced in the most efficient, least costly and
fairest manner.
25Issues Considered in the drafting of the
Amendments
- Recognizing the duty of expert witnesses
- Streamlining the process of qualifying expert
witnesses - The content of expert reports
- Requiring expert witnesses to confer in advance
of the trial - Single joint experts
- Application of the Rules governing expert
witnesses to applications - Status of treating physicians
- The need for cross-examination
- Concurrent expert evidence
- Limiting the number of experts
261999 Ontario Mandatory Mediation(Rule 24.1
75.1)
27What is mediation?
- Mediation is a way for people to settle disputes
or lawsuits outside of court. In mediation, a
neutral third party - the mediator - helps the
disputing parties look for a solution that works
for them. - Mediators do not decide cases or impose
settlements. The mediator's role is to help the
people involved in a dispute to communicate and
negotiate with each other in a constructive
manner, to gain a better understanding of the
interests of all parties, and to find a
resolution based on common understanding and
mutual agreement. - The purpose of mediation is not to determine who
wins and who loses, but to develop creative
solutions to disputes in a way that is not
possible at a trial.
28What is the Mandatory Mediation Program?
- The Mandatory Mediation Program is a program
designed to help parties involved in civil
litigation and estates matters settle their cases
early in the litigation process to save time and
money. - The Mandatory Mediation Program applies in
Toronto, Ottawa and Windsor to certain civil
actions under rule 24.1 of the Rules of Civil
Procedure and to contested estates, trusts and
substitute decision matters under rule 75.1 of
the Rules of Civil Procedure.
29Rule 24.1- Rule 75.1
- Under Rule 24.1, civil actions that are subject
to case management are referred to mandatory
mediation. Case management is a system in which
the court supervises cases and imposes strict
timelines on their movement through the pre-trial
and trial process. Certain civil actions, such as
family law cases, are excluded from mandatory
mediation. - Under Rule 75.1, contested estates, trusts and
substitute decisions matters are referred to
mandatory mediation.
30Fees
- Rule 24.1 Rule 75.1
- The mediators fees for the mandatory mediation
session cover the following services - 1. One-half hour of preparation time for each
party ( Rule 24.1 2 plaintiff and 2 defendants,
Rule 75.1 one estate trustee) - 2. Up to three hours of actual mediation.
Number of Parties Minimum Fees
2 600 plus GST
3 675 plus GST
4 750 plus GST
5 or more 825 plus GST
31How does Rule 24.1 work?
- Civil, case-managed actions (except family cases)
that are defended are referred to mediation.
Cases may be exempted only if the parties obtain
a court order. - The mediation is conducted by a private-sector
mediator. Parties may agree to select a mediator
from the Program's roster of mediators or one who
is not on the roster. This decision must be made
within 30 days after the first defence is filed. - If the parties cannot agree on a mediator, one
will be appointed for them by the Local Mediation
Coordinator, who is responsible for administering
the Program.
32- The mediation must take place within 90 days
after the first defence is filed, unless the
court orders otherwise. However, parties in a
standard track action may agree to postpone the
mediation for an additional 60 days by filing a
consent with the Local Mediation Coordinator. - At least 7 days before the mediation, parties
must provide the mediator and the other parties
to the lawsuit with a Statement of Issues, which
identifies the issues in dispute and the parties'
positions and interests. The pleadings and any
documents of central importance to the case must
be included.
33How does Rule 75.1 work?
- Proceedings relating to estates, trusts and
substitute decisions are referred to mediation,
unless there is a court order exempting them. - Within 30 days after the last day for serving a
notice of appearance, applicants are required to
bring a motion for directions relating to the
conduct of the mediation. - At the motion for directions, the court may
direct such matters as the issues to be
mediated, who has carriage of the mediation, the
timeframe for conducting the mediation, which
parties are designated to attend the mediation,
how the designated parties are to be notified of
the mediation, and how the cost of the mediation
is to be shared among the parties. - Following the motion for directions, parties are
required to select a mediator within 30 days of
the court order giving directions.
34- The mediation is conducted by a private-sector
mediator. Parties may agree to select a mediator
from the Program's roster of mediators or one who
is not on the roster. The party with carriage of
the mediation is required to give the selected
mediator a copy of the order giving directions. - If the parties fail to select a mediator within
30 days, the party with carriage of the mediation
must immediately file with the Local Mediation
Coordinator a request to assign a mediator. - The mediator, whether assigned or selected, is
required to immediately fix a date for the
mediation and, at least 20 days before that date,
serve on every designated party a notice of the
place, date and time of the mediation. - At least 7 days before the mediation, designated
parties must provide the mediator and the other
designated parties with a Statement of Issues.
35Evaluation of the OMMP(Rule 24.1) Robert G. Hann
and Carl Baar
- The evaluation addresses a wide range of issues
of interest to the Civil Rules Committee, to the
judiciary, to governmental policy makers, to the
general public --and to lawyers, mediators, court
administrators, litigants and other stakeholders
involved in the day to day operation of the court
and litigation processes. - However, the focus of the evaluation was on the
four major objectives of mandatory mediation
under Rule 24.1, namely - Does Rule 24.1 improve the pace of litigation?
- Does Rule 24.1 reduce the costs to the
participants in the litigation process? - Does Rule 24.1 improve the quality of
disposition outcomes? and - Does Rule 24.1 improve the operation of the
mediation and litigation process?
36Key Findings
- In light of its demonstrated positive impact on
the pace, costs and outcomes of litigation, Rule
24.1 must be generally regarded as a successful
addition to the case management and dispute
resolution mechanisms available through the
Ontario Superior Court of Justice in both Toronto
and Ottawa. More specifically, the evaluation
provides strong evidence that Mandatory
mediation under the Rule has resulted in
significant reductions in the time taken to
dispose of cases. - Mandatory mediation has resulted in decreased
costs to the litigants.
37- Mandatory mediation has resulted in a high
proportion of cases (roughly 40 overall) being
completely settled earlier in the litigation
process - with other benefits being noted in many
of the other cases that do not completely settle. - In general, litigants and lawyers have expressed
considerable satisfaction with the mediation
process under Rule 24.1. - Although there were at times variations from one
type of case to another, these positive findings
applied generally to all case types - and to
cases in both Ottawa and Toronto.
38Key Recommendations
- In light of these findings, it is recommended
that - R 1. The Rule be extended for the current types
of cases covered beyond July 4, 2001. - R 2. The Rule be amended, or other procedural
changes be made in line with the findings in this
report, as part of a process of continuous
improvement of Rule 24.1. - R 3. The Rule be extended to other civil cases in
Toronto and across the province as part of the
expansion of case management.
39Question
- Why do you think other provinces in Canada has
not adapted this mediation culture?
40Family Mediation Practicum Project (FMPP)
- Pilot project January 2004 in New Westminster,
British Columbia - Purpose to enable inexperienced family mediators
to gain hands-on experience and to provide
quality mediation services to family clients in a
safe environment
41Four Objectives
- 1)To give mediators practical experience in
mediating family disputes by providing a
practicum in which trained, but inexperienced,
mediators practice under the supervision of
senior mediators. - 2) To give practicum mediators the experience
necessary to determine appropriate mediation
processes, and employ skills and strategies to
address the unique dynamics that characterize
separation and divorce. - 3) To ensure that the parties opting for services
through the practicum project receive high
quality mediation services in a safe environment.
- 4) To promote collaboration with other family
justice practitioners in the pilot community in
providing mediation as one of a range of dispute
resolution options for families.
42Evaluation from 5 Angles Showed How Objectives
Were Met
- Case and administrative files
- Survey of mediation clients
- Telephone interviews with practicum graduates
- Focus group meeting with mentors
- Interviews with key respondents and subject
matter experts
43Objectives Met
- The enrollment rate for mediators was met at 12
mediators. - In 2004, there were 213 potential clients, and 33
cases initiated. - Practicum mediators reported exceptionally high
satisfaction ratings with the project, and their
mentors were pleased that the practicum mediators
were using appropriate strategies and skills to
manage a variety of complicated cases. - Clients who completed the mediation process
expressed high satisfaction rates. - Collaboration had been achieved through outreach,
advertisement, meetings and consultations with
Legal Services Society, Family Justice Centers,
individual judges, and justices of the Provincial
Family and Supreme Courts. - The sources of referral was 61 from the Legal
Services Society,10 from Family Justice Centres,
3 by court registries or judges of the Supreme
or Family Court, and a small percentage from
referrals by former clients of the project. There
was another 8 of participants who individually
approached the program through publications and
advertisements.
443 Policy Changes
- Fast track
- 2) Three-session limit
453 Policy Changes
- 3) Draft Memorandum of Understanding
46Recommendations
- 1) The expectations for the mediators need to be
formally communicated with the mentors at the
beginning of the program. - 2) More in-depth cost analysis is needed. For
example, one potential project is to show the
comparison between the FMPP and other services
such as court, and other mediation services. - 3) Relocation of site to or near a courthouse.
47Discussion
- Recommendation 3 is to relocate the site to or
near a courthouse. Do you think this
recommendation is useful to provide
point-of-entry assistance and attract more
clients to use the service?
48Point of Entry Assistance Bobin Mathew
49Point of Entry Assistance
- Point of entry assistance identified programs
with a physical presence in or near a courthouse
which are designed for and available to persons
entering the civil justice system. - These programs offer
- Information about dispute resolution options in a
multi-option justice system, such as community
mediation and court-annexed mediation -
- Referrals to available resources for obtaining
legal advice and information. (These resources
could include public legal education and
information programs, legal aid, duty counsel,
legal clinics, pro bono services, and the private
Bar.)
50Trends Relating to Point of Entry Assistance
- Assisting unrepresented family litigants has been
a common concern for several years, with several
provinces providing counselling through intake
services. - Family Law Information Centres (FLICs) have been
created to provide information, mediation
services and referrals to people involved in
family law matters. - Recently, work has been done to expand the scope
and availability of these sorts of services, and
extend them to both civil and family matters.
51Point of Entry Assistance
- In 2003, British Columbia launched a mapping
study to determine services, gaps, issues and
needs for self represented litigants in the
province. Based on this needs assessment, a Self
Help Information Centre was opened as a pilot
project in the Vancouver Court House in 2005. - A mapping project modelled on the BC study was
undertaken in Alberta, and used as the foundation
for the creation of Law Information Centres
located in three locations to serve as a
centralized place for information that can
coordinate referrals to existing services which
are currently 'disconnected and fragmented.
52Civil Justice Reform Resources
- The functions of this resource will be to
- Coordinate and promote existing legal-related
services - Provide legal information and appropriate
referrals to other services - Establish a multidisciplinary assessment/triage
service to diagnose the problem and provide
referrals to appropriate services - Provide access to legal advice and
representation if needed through a clinic model
53The Ontario Civil Justice Reform Project
recommendations
- This model relies on pro bono services to
provide - Clear-language information and instruction on
various Superior Court procedures. - Referral information to existing programs and
services. - Assistance with completion of forms through the
use of lawyer volunteers. - Representation at hearings and settlement
conferences by volunteer lawyers.
54Newfoundland Unified Family Court Services
Intake 2007
- The purpose of intake is to
- Identify the issues involved
- Make sure the required information is exchanged
between parties - Consider appropriate options to resolving the
issues - Recommend other steps, including a hearing before
a judge
55What is Intake?
- Intake is part of the court process and is
mandatory. Intake begins when you start an
application in the Family Court. Court officer,
usually called an intake officer, who will help
you identify the issues and make sure that you
have provided all information and documentation
required by the Family Court.
56What does the intake officer do?
- The intake officer may
- Suggest that you seek legal advice and
counselling services - Suggest that you consider mediation
- Refer the parties to the Parent Information
Program - Schedule a court date before a judge
- Recommend to a judge that a pre-trial settlement
conference be scheduled - Direct that the parties provide proper financial
and other information to each other
57The intake officer does not
- Take sides in a case
- Force the parties to reach a settlement outside
of court - Make final decisions about a case
- The intake officer cannot give legal advice. The
intake process does not replace negotiation
between lawyers.
58Law Help Ontario - 2007
- Law Help Ontario, a self-help centre for low
income, unrepresented litigants appearing before
Superior Court, was launched in December 2007 by
Pro Bono Law Ontario (PBLO) - The Project is "designed for litigants that
cannot qualify for legal aid or afford to hire a
lawyer"
59Philosophy of the Project
- The underlying philosophy of the project is that
self-represented litigants have a fundamental
right to access the justice system even if they
cannot afford to retain a lawyer for full
representation privately, or qualify for pro bono
or Legal Aid.
60The Law Help Ontario walk-in centre
- Located on the 393 University Avenue in Toronto -
the building that houses Toronto's main Superior
Court of Justice branch. Hours of Operation are
Monday to Friday from 930 a.m. to 400 p.m. - The centre is staffed by at least one intake
coordinator every day, two volunteer lawyers
(different each day) and pro bono law students. - Law Help operates as a walk-in centre, on a
first-come, first-served basis. - Litigants who request or require more than 15
minutes of assistance from the intake coordinator
or pro bono lawyers are asked to complete a
detailed intake form.
61Qualifying for pro bono assistance
- Litigants must meet financial eligibility
criteria. - Litigants must present with a civil (non-family)
issue and may only act as individuals. - Companies, corporations and businesses do not
qualify for services. - In limited circumstances, business owners are
assisted, on a case-by-case basis, if they meet
Law Help's financial eligibility criteria. -
62Law Help provides various of legal services
- Information on rules and procedures
- Help filling out court forms
- Help assembling pleadings, such as motion records
- Summary legal advice
- Legal representation
- Referrals
- Legal resource materials
- Legal Seminars
- Instructional videos
63Alberta Law Information Centres -2007
- The objectives of the Law Information Centres are
to - Improve access to justice for individuals acting
on their own behalf. - Increase SRL's access to appropriate information
that will assist them prior to, during and after
their day in court. - Reduce the amount of time needed to deal with SRL
cases in court - Encourage ongoing, collaborative, and
consultative relationships to form among justice
service providers/resources.
64The Service Vision of the Law Information
Centres
- Be client-focused
- Have the capacity to determine what a SRL
currently needs and what next step is required. - Offer objective services by knowledgeable and
respectful staff. - Facilitate networks with the justice community
and associated service providers for the purpose
of sharing legal information and practice
knowledge. - Be based on collaboration of stakeholders and
service providers to ensure greater continuity of
service to SRLs with less risk of duplication
65Law Information Centres
- Their services include
- Referring SRLs to legal and other resources in
the community - Providing information about legal advice options
- Providing information about alternatives to court
- Providing legal information
- Explaining court procedures
- Explaining the steps to take in making legal
applications - Helping litigants locate and fill out court forms
66Cost for Operation of LlnC
- The annual cost of the LInC program is
- 700,000, with the Edmonton location serving
an estimated 130 people per day. (Edmonton
Journal) - The Calgary LInC opened in January 2009 and,
since opening, has nearly tripled the number of
clients it serves on a monthly basis, from 1,062
in January to 2,656 in March, 2009.
67Summary of Recommendations
- Development and implementation of a comprehensive
set of management policies would provide the LInC
manager and courthouse manager with clear
guidelines on their individual responsibilities
should be considered. - Taking steps to ensure that staffs are not
providing legal advice should be considered.
68Recommendations Cont.
- Development and implementation of an ongoing
strategy to promote its service to the public
should be considered. - The LInC's data collection process should be
evaluated and refined. - A means of obtaining regular follow-up feedback
from other Alberta Justice staff over the next
few years to assist in assessing the impact of
the LInC on the court - The LInC should work with organizations to
determine if there are certain populations that
are not accessing the LInC and to assess the
barriers to access and potential solutions for
overcoming these barriers (e.g. satellite or
mobile LInCs).
69Sedona Canada Principles
- Addressing Electronic Discovery
- Electronic discovery refers to the discovery of
electronically stored information, including
e-mail, web pages, word processing files,
computer databases, and virtually any information
that is stored on a computer or other electronic
device. Technically, information is electronic
if it exists in a medium that can be read through
the use of computers or other digital devices.
Such media include random access memory, magnetic
disks (such as computer hard drives or floppy
disks), optical disks (such as DVDs or CDs), and
magnetic tapes. Electronic discovery can be
distinguished from paper discovery, which
refers to the discovery of writings on paper that
can be read without the aid of electronic devices.
70Principles
- Principle 1 Electronically stored information
is discoverable. - Principle 2 In any proceeding, the parties
should ensure that steps taken in the discovery
process are proportionate, taking into account
(i) the nature and scope of the litigation,
including the importance and complexity of the
issues, interest and amounts at stake (ii) the
relevance of the available electronically stored
information (iii) its importance to the courts
adjudication in a given case and (iv) the costs,
burden and delay that may be imposed on the
parties to deal with electronically stored
information
71- Principle 3 As soon as litigation is reasonably
anticipated, parties must consider their
obligation to take reasonable and good faith
steps to preserve potentially relevant
electronically stored information. - Principle 4 Counsel and parties should meet and
confer as soon as practicable, and on an ongoing
basis, regarding the identification,
preservation, collection, review and production
of electronically stored information.
72- Principle 5 The parties should be prepared to
produce relevant electronically stored
information that is reasonably accessible in
terms of cost and burden. - Principle 6 A party should not be required,
absent agreement or a court order based on
demonstrated need and relevance, to search for or
collect deleted or residual electronically stored
information
73- Principle 7 A party may satisfy its obligation
to preserve, collect, review and produce
electronically stored information in good faith
by using electronic tools and processes such as
data sampling, searching or by using selection
criteria to collect potentially relevant
electronically stored information. - Principle 8 Parties should agree as early as
possible in the litigation process on the format
in which electronically stored information will
be produced. Parties should also agree on the
format, content and organization of information
to be exchanged in any required list of documents
as part of the discovery process.
74- Principle 9 During the discovery process
parties should agree to or, if necessary, seek
judicial direction on measures to protect
privileges, privacy, trade secrets and other
confidential information relating to the
production of electronic documents and data. - Principle 10 During the discovery process,
parties should anticipate and respect the rules
of the forum in which the litigation takes place,
while appreciating the impact any decisions may
have in related actions in other forums.
75- Principle 11 Sanctions should be considered by
the court where a party will be materially
prejudiced by another partys failure to meet any
obligation to preserve, collect, review or
produce electronically stored information. The
party in default may avoid sanctions if it
demonstrates the failure was not intentional or
reckless. - Principle 12 The reasonable costs of preserving,
collecting and reviewing electronically stored
information will generally be borne by the party
producing it. In limited circumstances, it may be
appropriate for the parties to arrive at a
different allocation of costs on an interim
basis, by either agreement or court order.
76COURT ORGANIZATION AND MANAGEMENT Proportionality
and Ontario Court
- Corporate Law (Proportionality)
- Joint and Several Liabilities under the Ontario
Business Corporations Act (Law Commission of
Ontario) www.lco-cdo.org/js/joint-several-liabilit
y-final-report.pdf (Ref http//cfcj-fcjc.org/inve
ntory/) - Case Proceedings (Ontario Court)
- Regional Jurisdiction of Ontario Court of Justice
(Ontario Court of Justice) Statistical Data for
Criminal Proceedings Provincial Overview, By
Region, By Court Location July 2010 to June 2011
77Ontario Business Corporations Act Joint and
Several Liabilities
- JOINT AND SEVERAL LIABILITY
- Purpose is to analyze the provision of Joint and
Several Liability to support the claims
justifying the proportionate liability appeared
in Ontario in 2011- on the basis of Ontario
Business Corporations Act - Provides for a plaintiff suffering loss- to
recover the entire claim from defendants chiefly
on proportionality basis - Refers the remedy as indicated in section 1,
extent of liability and remedy over, of the
Ontario Negligence Act (Ref R.S.O. 1990,
CHAPTER N.1 www.e-laws.gov.on.ca/) - For example, if the plaintiffs lost is found to
have caused by three different defendants (say
D1, D2, and D3), the plaintiff is entitle to
claim full payment from any one of the dependants
78Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)
- GROUND FOR PROPORTIONALITY
- Scope In general, proportionality is somewhat
problematic. However, the scope had been defined
as procedural rules covering two major notions
proceedings being restricted to be based on
proportion of monetary amount and litigation
procedure based on the amount of money at issue
(such as BC Rule 68, Joint and Several
Liabilities Under the Ontario Business
Corporations Act, etc.) - Trends Relating to Proportionality Recent
amendment delineates the requirement where both
importance and complexity of rules in civil
procedure are questionable with, in particular
for cost-effectiveness in proceedings. - Reforms Relating to Proportionality This
enclaves many other jurisdictions in reforms for
example, ALRT Draft Rules on Managing Litigation,
2007 Ontario Simplified Procedures (Rule 76),
1996 and recent development of Reform- Joint and
Several Liability Under the Ontario Business
Corporations Act, 2011
79Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)
- MODELS FOR REFORM, SOME INSTANCES
- Proportionate Liability is framed out by six
circumstances (will be illustrated in the next
slide with example) - Legislative Cap on Liability- damages are
relevant to economic loss while the caps can be
operated in three ways (a) single monetary
amount (b) percent or multiplier of the fee
charged by the professionals and (c) a percent
of damages awarded - Hybrid- a system with proportionate liability and
caps on damage where co-defendants are liable for
the proportion of the damages, maximum total
amount payable by each co-defendant is caped to
certain statutory limit - Contractual Limitations on Liability, there would
be a cap on damages to the amount of the fees
paid depending on the nature parties by private
and public category.
80Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)
- PROPORTIONATE LIABILITY OPTIONS
- Fundamentals Full Proportionate Liability
- Option-1, Plaintiffs Sole Proportionate
Liability is applicable because of Plaintiffs
Contributory Negligent. - Option-2, Burden Sharing Proportionate
Liability with Plaintiff Contributory Negligent
of an Insolvent, Financially Limited or
Unavailable Defendant's Share - Option-3, Arbitrary Threshold Proportionate
Liability with Peripheral Wrongdoer - Option-4, Fraud or Violated Proportionate
Liability with a Reallocation of some or all of
an Insolvent or Unavailable Defendant's Share - Option-5, Court Discretion as decided by courts
in absence or in consideration of relevant
grounds
81Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)
PROPORTIONATE LIABILITY OPTION
82Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)
- LEGISLATIVE DEVELOPMENT TRENDS
- Canadian Statutory Reform that Refers Two Acts
- Canada Business Corporations Act- where
proportionate liability regime provides some
conditional grounds. - Ontario Securities Act- measures the damages in
three ways. - Joint and Several Liability in Canada- Earlier
State - Recent Canadian history experiences with the
rejection of Reform to Proportionate Liability
many times . - In 1979, Alberta Law Reform Commission (ALRC)
recommended retention of joint and several
liability, while British Columbia Low Commission
in 1986 and Ontario Law Commission in 1988
provided the same conclusion provided by the ALRC
suggested framework. - Slaters Report (1986), however, concerned about
the possibility of Liability Crisis and lack of
data to support claims of a crisis.
83Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)
- TRENDS OF REFORMS IN OTHER COUNTRIES
- United States Proportionate capped liability, a
modified form of proportionate liability, was
adopted at the federal level in USA through the
Private Reform Litigation Reform Act 1995. - United Kingdom The UK Companies Act 2006 allows
the auditors to limit their liability by contract
with their company clients-- depending to the
shareholders approval (to address tort
liability)-- subject to the term such amount is
fair and reasonable in all the circumstances - POLICY CONSIDERATIONS IN CANADA
- Bearing the Efficient Distribution of the Risk of
Loss - Compensation and Deterrence- as the primary
policy goal of public enforcement and the
criminal law while private law focusses on
compensation - Fairness- pertinent to both the plaintiff and the
defendants and consistent with the type of regime
preferable to the reform - Access to Justice and Cost to Litigation-
depending on different liability regimes
84Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)
- CONSTRAINTS OR SHORTCOMINGS
- Different Discussion Public discourses on joint
and several liability are variant in Ontario
although several other jurisdictions have taken
steps to address this issue. - Other Jurisdictions Trends toward proportionate
liability reforms in other countries, such as
USA and UK, does not necessarily justify the
ground for the respective reform in Canada as
those countries have more or different litigious
situation. - Provision of Status-Quo Beyond the arguments for
reform to proportionate liability and statutory
caps on damages such as fairness, rising cost of
litigation, provision of services, and/or
contractual limitation on liability this
provision allows to retain Joint and Several
Liability on the some grounds of which Fairness
and Compensation, Common Law Protection,
Deterrence and Risk, and Statutory Caps are
Inappropriate are some critical instances.
85Ontario Court of Justice Regional Jurisdiction
86Ontario Court of Justice Regional Jurisdiction
(Cont.)
87Ontario Court of Justice Regional Jurisdiction
(Cont.)
88BC Parenting After Separation Project
- Pilot Project
- Started out as voluntary options at 4 locations
in British Columbia in 1994 - Mandatory form in the provincial courts in
Burnaby and New Westminster in 1998 - Between 1999 and 2000, the program expanded to
other locations
89Purpose
- Assist parents in making informed decisions
through the separation process - Education for both the emotional and legal side
of separation - Three-hour workshop
- Encourage alternative means
- of settlement other than the
- court
90Final Evaluation Report 2000
- Impact of this mandatory reform on litigation
rates at pilot jurisdictions compared to that at
sites offering the reform on a voluntary basis - Methodology involved establishing a comparison
location at North Vancouver, as this site was
shown to have similar litigation patterns as the
pilot site at Burnaby and New Westminster - Three different angles case file review, pilot
site court staff interview, client follow-up
interview - New provincial court rule
91Case File Review
92Case File Review
93- Court staff interview case flow improved
- Client follow-up interview reasoning behind
clients choice
94Discussion
- The Mandatory Parenting After Separation workshop
is held before the first proceeding. Thus, the
reduction of potential court cases to first
appearance could be easily linked to the effects
of the workshop. However, why did the trend for
reduction at the second and third appearances
also occur at the pilot sites?
95Caseflow Management
- BC Expedited Litigation Project (Rule 68) (2005)
96Background
- obtaining a resolution in a British Columbia
Supreme Court civil action was found to be
prohibitively expensive, taking far too long, and
overly complex as stated by the Justice Review
Task Force in BC. - In the Task Forces Green Paper it was outlined
that cost, delay and complexity constitute grave
problems in the administration of justice. - Using the general rules of proporionality, it was
decided to balance the interest of justice with
cost-effectiveness in order to increase access to
justice. - It was under this principle that the court must
only allot the case a share of the courts
resources proportionate to the magnitude of the
case, while taking into account the need to allot
resources to other cases that the BC Expedited
Litigation Project (Rule 68) came to be.
97Reform Specifics
- In September 2005, Rule 68, Expedited Litigation
Project Rule, was introduced to facilitate the
efficient conduct of Supreme Court cases where
the dollar-value of the claim is 100,000 or
less, exclusive of interest and costs. It was
introduced as a two year pilot project in the
Vancouver, Victoria, Prince George and Nelson
registries. - The goal was to make the amount of pre-trial
process and, therefore, the cost to the parties,
proportionate to the value of the amount in
dispute and therefore make the justice system
more efficient. - Family proceedings and class actions are
excluded. Where both parties agree, the Rule can
apply to cases where the amount claimed is over
100, 000. Parties may also apply to be excluded
from the rule, and the court can also remove
cases it deems inappropriate for expedited
litigation.
98Continued
- Key features of Rule 68 include
- limits on pre-trial procedures such as
examination for discovery - with few exceptions, contested interlocutory
applications are not allowed before a case
management conference or a trial management has
been held - pre-trial document disclosure is simplified and
expedited - jury trials are not allowed
- parties are required to engage in an early and
more comprehensive exchange of information - trial management conferences conducted by a judge
are held between 15 and 30 days before trial - at least seven days prior to a trial management
conference, parties are required to exchange
comprehensive trial briefs, which among other
things summarize the issues and their positions
on the issues, provide a list of witnesses that
they intend to call at trial and summarize the
evidence that they expect each of their witnesses
will give and - at a trial management conference, a judge may
impose time limits on the direct and
cross-examination of witnesses, as well as on
opening statements and final submissions. - The aim of Rule 68 was to limit both pre-trial
procedures and the evidence that can be called at
trial, in effect, making the justice system more
streamlined by allotting less court time and
resources to simple civil matters.
99Legacy of Rule 68
- The two year pilot project (Rule 68) was extended
in 2008 province-wide, further amendments were
made with respect to - Case planning conferences to limit costs further
- New fast track litigation which combines Rule 66
and 68 - Among other amendments with respect to
proportionality, experts, Supreme Court Family
rules etc. - As of 2010, BC is still in the phase of
implementing the new Rules, in effect, replacing
Rule 68. - Since the primary goal of civil justice reform is
the just resolution of disputes through a fair
but swift process at a reasonable expense, Rule
68 was formulated in order to ensure that the
extent of the procedure is proportional to the
magnitude of the dispute. - Link to Guide on Rule 68 produced by the Law
Courts Education Society of BC - http//www.justiceeducation.ca/themes/framework/do
cuments/BCSCSHIC_Expedited.pdf
100Andreia Cabral
- Civil Rights in Saskatchewan Long-Term Care
Facilities -
- Nunavut Court of Justice 2001 Report
101Civil Rights in Saskatchewan Long-Term Care
Facilities 2010 - Questionnaire Results
- 1. Right to Vote
- All claimed elderly entitled to vote in
fed./prov. elections, while 8 left municipal
elections blank 8 indicated they would not
provide assistance if necessary - 2. Staff Education on Rights
- 9/27 homes indicated seminars focus on civil
rights those who responded no, reported lack of
resources and unwillingness of staff to attend - 3. Resident Tobacco / Alcohol Use
- All but one indicated smoking is permitted, but
restrictions may be appropriate i.e. smoking off
property. All respondents indicated residents
were permitted to drink alcohol - 4. Residents Council
- 19 respondents indicated that they have an active
Council 4/6 who indicated no, were those who
indicated that they had staff seminars concerning
civil rights of residents - 5. Residents Bill of Rights
- 18 indicated that they have one and are proactive
in making sure families and residents are aware
of it - Lack of recognition by others is correlated to a
lack of civil rights - 6. Privacy
- 21/27 respondents seem satisfied that they have
measures in place
102Interview Results
- Themes of Incidents
- Respect
- Interviews suggest lack of respect is widespread,
but a result of institutional culture - Language used by staff dehumanizing , i.e.
feeder, wanders, treating them like
children, meals are unpleasant, over or under
medicated, concerns of abuse, i.e. physical,
problem with incontinent products - Lack of respect as early on as the placement
process - Many believe workers schedule works to
convenience staff and not residents - 2. Staff/Bed Shortages
- Indirectly civil rights are affected with an over
worked and stressed staff, which is less able to
find time to respect individuals needs - Staff shortages, and failure to replace absentee
staff commonplace, so families took on staff
responsibilities, i.e. feedings, etc... - 3. Workplace Home Conflict
- While it is a workplace for some, it is a home
for others, i.e. issues such as workplace gossip
have a negative affect on residents, smoking,
etc...
103Need for Reform
- Improving Education
- Training is currently uneven in abuse awareness,
and not enough emphasis on protection of civil
rights and communication - Development of workshops or presentations,
including handbooks and training programs are
needed moving forward - 2. Law Protecting Rights
- Protections and laws are scattered throughout
statutes, common law rules, and regulations,
there is a need for clarity and organization in
the law - Legislating Bill of Rights into legislation would
offer official status to rights, enumerated
rights, can provide for enforcement, and make
sure it is displayed for all to see - 3. Reporting Abuse and Complaints Process
- Suggest a formal complaint procedure and
mandatory reporting of abuse, which would help
make the system more transparent and publically
accessible - 4. Access to Advocacy and Investigations
- Access to knowledge, independent advocates and
investigators committed to assisting residents to
assert their rights
104Nunavut Court of Justice 2001 Annual Report
Main Themes 2001 Report Findings
Court Circuits Difficult time getting to all communities Trying to garner Elder support in all communities
Deputy Judges Only 2 resident judges, rely on judges from other jurisdictions
Nunavut Rules of Court Review revise rules of court Develops public info. literature
JP Program 92 total / 66 speak Inuktitut 54 active / 44 speak Inuktitut JPs bridge communities
Family Support Office Inuusirmut Path Finders Program Encourages Mediation
Continuing Education Inuksuk High School Law Course Akitsiao Law School Society Project Law Student Co-op Youth Court Advisory Panel High School Student Outreach Initiative
105Nunavut Court of Justice 2007 Annual Report
Main Themes 2007 Report Findings
Deputy Judges Relied on them 40/52 weeks
JP Program Needed to bring accessible justice, seen as role models and leaders in community Ever increasing workload There are now 2 JP Courts, 67 total, 49 speak Inuktitut
Mediation Emphasis on Mediation, i.e. Inusiqmute Aqusiuqtiit Program Goal intervening before problems escalate
Family Abuse Act Encourages empowerment and taking responsibility for behaviour before violence occur so as to avoid it
Mental Health Issues The Court Est. bridges of communities, sharing resources, identifying needs to deal with issues more effectively Training local people, NB because of cultural connection
1062001 Annual Report vs. 2007 Annual Report
- Lack Of Resources
- 2007 Report indicates that lack of resources
limits time available to invest in creative
ideas/programs, assistance of staff, training,
and judicial involvement, while the 2001 Report
was much more confident and optimistic - Continuing Education aspect as outlined in 2001
report seems to have been completely scrapped in
the 2007 report due to lack of resources - 2. Court Circuits
- Continue to experience difficulty in reaching all
communities, i.e. Repulse Bay - Training
- Training for JPs continues to be an issue, i.e.
Postponements, lack of judge assistance - Challenges in training for court workers, police
and senior JPs is a problem in both - Technology
- Both demonstrate importance of keeping pace with
technology, has made things easier through the
use of videoconferencing, digital recoding
equipment, etc... in making courts more
accessible, i.e. even for expert witnesses - Importance of Mediation
- Both stress it, and claim it to be much more
effective and beneficial for people of Nunavut
(Inusiqmute Aqusiuqtiit Program) Need for Inuit
problem-solving style rather than relying on
adversarial system alone
107Evaluation of family law expanded duty counsel
pilot project
- Three objectives of the project
- To compare cost and time efficiencies among the
three Family Law Expanded Duty Counsel models. - To compare cost and time efficiencies between
the Family Law Expanded Duty Counsel model and
the existing duty counsel model of service
delivery. - To compare quality of service among the three
Family Law Expanded Duty Counsel models, and
between the Expanded Duty Counsel model and the
traditional duty counsel model.
108Findings/Recommendations
- There is a strong need for expansion of services
provided by duty counsel. - 80 support for the expanded role of duty counsel
based on the responses from clientele - Eleven recommendations based on the findings of
the project. - Continuity of representation and file continuity
- Improved organization and accountability,
consistency of advice through the coordinator,
new emphasis on resolution. - Continuous training of duty counsel, flexibility
in scheduling, document production.
109Table one
- Functions of duty counsel
- Expanded role of duty counsel
- General functions of duty counsel
- Advising unrepresented parties about their legal
rights and obligations - Assisting unrepresented parties in negotiating
and settling issues on a final or temporary basis
- All of the general functions of duty counsel
PLUS - Expanded role in drafting and preparing
documents for unrepresented parties using the
facilities and equipment provided by the project - Maintaining continuity of client representation
whenever possible from one court appearance to
the next
110- Opening and updating files opened for
unrepresented parties in the duty counsel office
to maintain file continuity for clients if
continuity of representation is not possible - Preparing and submitting data forms for
statistical collation - Source Presentation notes prepared for the
Hamilton Duty Counsel Training Session on October
27, 1999.
- Reviewing court documents and assisting in
preparing court documents such as motions,
affidavits, and financial statements - Referring unrepresented parties to other sources
of assistance, such as on-site or off-site
mediation, Legal Aid, or private counsel - Attending court with unrepresented parties to
request adjournments, argue motions, child
protection hearings, default, garnishment and
support show cause