Civil Justice Reform

1. Civil Justice Reform

2. Canadian Judicial Council, Access to Justice: Report on Selected Reform Initiatives in Canada (June 2008)

3. About 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 Canada’s superior courts, the senior judges of the territorial courts, and the Chief Justice of the Court Martial Appeal Court of Canada.

4. About 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:

5. 1. 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. BC’s Rule 68).

6. Trends 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.

7. Noted 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

8. 2. 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 party’s expert to testify at trial unnecessarily, or unreasonably refuses to accept certain experts.

9. Recent 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

10. 3. 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.)

11. Recent 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

12. An 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

13. 4. 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.

14. Recent 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

15. 5. 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

16. Recent Trends • Nova Scotia’s Halifax Caseflow Management Project • Québec’s 2002 Code of Civil Procedure revisions • Ontario’s Rule 77 and 78 • The BC Civil Justice Reform Working Group suggested that proposed Case Planning Conferences: amendments to Rule 68

17. Conclusion 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.

18. Expert Evidence/Witnesses in the Federal CourtsBeatrice G. Mloka

19. Federal 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.

20. Purpose • 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.

21. The 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).

22. Relevant 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 witness’s report before pre trial conference, e.g. Manitoba, Saskatchewan and Quebec

23. Federal Court Rules Amendments • Rule 258 (4) & (5)- Requires expert’s 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 expert’s affidavit or statement • Rule 279(b) & 281- Admissibility of expert’s evidence at the trial

24. Federal 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.

25. Issues 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

26. 1999 Ontario Mandatory Mediation(Rule 24.1 & 75.1) Tina Motavalli

27. What 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.

28. What 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.

29. Rule 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.

30. Fees Rule 24.1 & Rule 75.1: The mediator’s 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.

31. How 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.

33. How 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.

35. Evaluation 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?

36. Key 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.

38. Key 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.

39. Question Why do you think other provinces in Canada has not adapted this mediation culture?

40. Family 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

41. Four 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.

42. Evaluation 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

43. Objectives 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.

44. 3 Policy Changes • Fast track 2) Three-session limit

45. 3 Policy Changes 3) Draft Memorandum of Understanding

46. Recommendations 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.

47. Discussion • 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?

48. Point of Entry Assistance Bobin Mathew

49. Point 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.)

50. Trends 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.