 |
| David MacDonald |
 |
| Chris MacDonald |
If the proposed ‘reliance/adverse’ standard is accepted, it will cause additional judicial burden
1. forcing motions on most cases,
2. forcing more and longer directions conferences,
3. forcing the development of new productions case law,
4. forcing delays for trials pending appeals on production orders,
5. forcing an increase in motions, Redfern and others, and;
6. forcing an increased burden on judges.
2. forcing more and longer directions conferences,
3. forcing the development of new productions case law,
4. forcing delays for trials pending appeals on production orders,
5. forcing an increase in motions, Redfern and others, and;
6. forcing an increased burden on judges.
Bottom line: Failure to keep “relevance” will force an upfront need for increased judicial intervention in numbers that will dwarf the number of motions currently.
If the “reliance” proposal is maintained, directions conferences alone will consume substantially more court time than motions do currently.
As noted in the 2019-2023 Report: Ontario Superior Court of Justice: Modernizing the Justice System, authored in part by Justice Geoffrey Morawetz, in-person motions for civil and matrimonial matters comprised 225,000 attendances for the five-year period of 2019-2024; as such, on average, the in-person motions per year under the current system totalled 45,000 per year, far less than the 210,000 per year in-person directions conferences/scheduling conferences that will be required initially under the CRR proposals, and substantially less than the 66,000 per year judicial conferences that will be required after the backlog of 150,000 cases is addressed in the transitional period.
Proposals for directions conferences
1. Keep “relevance” as the standard for productions, maintain the existing jurisprudence on production issues to reduce the number of directions conferences.
2. Increase the number of associate judges and judges to deliver judicial case conferences for civil justice (a caseload 10 times that of criminal) and revise the CRR to reduce the judicial conference obligations.
3. Accept the logistical impossibility of delivering mandatory judicial direction or judicial scheduling conferences and reduce mandatory attendances.
4. The CRR will need to convert a majority of directions conferences to in writing conferences and allocate additional judicial resources to address the need in each case. If there are multiple directions conferences, the same judge should remain seized.
5. It is suggested that Redfern motions be scheduled using court resources rather than judicial resources.
6. Mandating a judicially supervised directions conference for triaging productions and hearing all motions will result in many unnecessary attendances and waste of judicial and court time/resources. One should not have to go to court to get a date for a Redfern motion. Instead, additional court resources will need to be hired and trained to triage motions scheduling arising from Redfern production motion requests or direction conferences.
7. Including the “attempt to settle” the matter as a CRR requirement we expect the court to address at a directions conference is helpful, but unlikely to meaningfully impact settlement in the time available and as such, parties will seek an order for a judicial settlement conference in a majority of cases. This duplicates court time on the settlement issue. It can be addressed by new rules that provide for a consent request for a judicial settlement conference.
8. Under our current rules, a majority of civil cases did not and do not require court involvement at all, or at least until pretrial conference (after failed out-of-court settlement efforts like mediation). Under CRR proposed rules, every case will require a hearing before a judge at the one-year mark.
9. It is already difficult to obtain a pretrial date within a year of set down with current, non-mandatory use of judicial resources. Mandatory directions conferences and scheduling conferences place the additional burden on judges with more attendances and will make it less possible to allocate judicial resources to pretrials, trial management conferences and trials.
2. Increase the number of associate judges and judges to deliver judicial case conferences for civil justice (a caseload 10 times that of criminal) and revise the CRR to reduce the judicial conference obligations.
3. Accept the logistical impossibility of delivering mandatory judicial direction or judicial scheduling conferences and reduce mandatory attendances.
4. The CRR will need to convert a majority of directions conferences to in writing conferences and allocate additional judicial resources to address the need in each case. If there are multiple directions conferences, the same judge should remain seized.
5. It is suggested that Redfern motions be scheduled using court resources rather than judicial resources.
6. Mandating a judicially supervised directions conference for triaging productions and hearing all motions will result in many unnecessary attendances and waste of judicial and court time/resources. One should not have to go to court to get a date for a Redfern motion. Instead, additional court resources will need to be hired and trained to triage motions scheduling arising from Redfern production motion requests or direction conferences.
7. Including the “attempt to settle” the matter as a CRR requirement we expect the court to address at a directions conference is helpful, but unlikely to meaningfully impact settlement in the time available and as such, parties will seek an order for a judicial settlement conference in a majority of cases. This duplicates court time on the settlement issue. It can be addressed by new rules that provide for a consent request for a judicial settlement conference.
8. Under our current rules, a majority of civil cases did not and do not require court involvement at all, or at least until pretrial conference (after failed out-of-court settlement efforts like mediation). Under CRR proposed rules, every case will require a hearing before a judge at the one-year mark.
9. It is already difficult to obtain a pretrial date within a year of set down with current, non-mandatory use of judicial resources. Mandatory directions conferences and scheduling conferences place the additional burden on judges with more attendances and will make it less possible to allocate judicial resources to pretrials, trial management conferences and trials.
Scheduling conferences
The CRR proposes these “brief” court appearances (CRR estimate of 15 minutes). These are hoped by CRR Phase 2 to “run in each judicial district once a week.” With respect, like a number of other CRR recommendations that lack statistical support for suggested changes, this “once a week” estimate is an extreme underestimation of the judicial resources needed if mandatory judicial involvement and counsel attendance is required in each and every scheduling conference.
Presuming there are 210,000 claims in the civil Superior Court system at any one time and presuming a majority of those (70 per cent) do not require directions conferences, this leaves 147,000 scheduling conferences required out of the gate to clear the backlog of 210,000 claims in the system currently, with an addition of 46,200 new claims requiring scheduling conferences each year (66,000 x 0.7).
The judicial resources required to address this load, assuming all in-person/virtual attendances is substantial. If one judge has 100,000 minutes per year assuming full-time, 42 weeks per year, eight hours per day, 147,000 scheduling conferences x 15 minutes per case is 2,205,000 minutes per year.
This equals over 22 full-time judges working full-time five days a week on scheduling conferences alone, across eight regions to address the initial need for scheduling conferences. As such the estimate in the CRR of one day per week for scheduling conferences in each of the eight districts by one judge is an extreme underestimation of the judicial resources required to manage mandatory scheduling conferences under the CRR proposals.
Assuming, once the 147,000 in-person scheduling conferences are addressed in a period of one to five years depending upon whether additional judicial resources are provided to the civil justice system, to address the scheduling conferences of approximately 46,200 new claims each year will require 693,000 judicial minutes a year or six to seven full-time judges, one per region, devoting her whole five-day week to scheduling conferences.
Query: Why allocate judicial resources to scheduling when rules can mandate scheduling forms completion which rules may deem to have the enforceability of court orders.
Proposals for scheduling conferences
1. Increase in judicial resources for civil justice.
2. Revise the CRR to reduce the obligations to address the logistical impossibility of judge-presided mandatory scheduling conferences for all but a small portion of those requiring same.
3. Amend the rules to require parties file an agreed upon schedule with the court, with the effect of a consent order, to bring the matter to trial within two or three years of issuance. Ensure that if court resources are required to address scheduling, that it be as a last measure.
4. Where, in a plaintiff’s personal injury matter, one or more of the following are present:
2. Revise the CRR to reduce the obligations to address the logistical impossibility of judge-presided mandatory scheduling conferences for all but a small portion of those requiring same.
3. Amend the rules to require parties file an agreed upon schedule with the court, with the effect of a consent order, to bring the matter to trial within two or three years of issuance. Ensure that if court resources are required to address scheduling, that it be as a last measure.
4. Where, in a plaintiff’s personal injury matter, one or more of the following are present:
1. The injuries have not stabilized;
2. Lengthy recovery for plaintiff;
3. Intervening accident or additional trauma occurs; and/or
4. Multiple parties/complex litigation (e.g., product liability, medical malpractice), and plaintiff’s and defence counsel consent, the CRR should allow filing of a form with the registrar, which, without the need for judicial attendance, will automatically result in the matter being placed on the “inactive list” for a year.
2. Lengthy recovery for plaintiff;
3. Intervening accident or additional trauma occurs; and/or
4. Multiple parties/complex litigation (e.g., product liability, medical malpractice), and plaintiff’s and defence counsel consent, the CRR should allow filing of a form with the registrar, which, without the need for judicial attendance, will automatically result in the matter being placed on the “inactive list” for a year.
The rules must require the form include the scheduling proposed for completion of all steps during the “inactive” year and in the following year, to bring the matter to trial by three years following claim issuance. The proposed rules can indicate this form is deemed to have the enforceability of a court order.
If at the conclusion of the one-year period, the injuries have not stabilized, an in-person attendance at a directions or scheduling conference with judicial intervention must occur.
If these multiple suggestions for scheduling conferences process are adopted, a majority of scheduling conferences will be avoidable, without loss of judicial resources and without delaying the matter’s progress.
David MacDonald, C.S., is a plaintiffs’ personal injury lawyer in practice for 34 years and is the founding partner of MacDonald Injury Lawyers. Chris MacDonald is a personal injury lawyer at MacDonald Injury Lawyers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.