“Civil Justice Reform – The Toronto Experience” The Honourable Warren K. Winkler Chief Justice of Ontario September 12, 2007
I am very pleased that the University of Ottawa is holding a series of lectures on the important topic of civil procedure, and flattered that the members of the Faculty of Law were so kind as to both name the series in my honour and invite me to deliver the first of the lectures.[1]
J’aimerais remercier sincèrement le Vice-Président Feldthusen, le doyen intérimaire Gervais et la Professeure Bailey pour avoir organisé cette conférence.
I propose to make a few comments today about procedural reforms which were introduced almost three years ago for civil cases in the Superior Court of Justice in Toronto Region, but before I do so, I would like to say a few words on a more general level about the importance of civil justice reform.
Civil litigation in this province is too expensive and too slow, with the result that many people in Ontario may be denied access to justice. In a recent article in the Toronto Star entitled “Access to Justice – A Basic Right”, it was reported that the cost of taking a routine civil case through to a three-day trial in Ontario is about $60,000.00. This is more than the average Canadian family earns in a year which means, of course, that the average Canadian family may not be able to afford a simple civil suit, especially if they lose at the end of trial.
None of this is news. Charles Dickens’ criticisms of the legal system in Bleak House, which focused in a most pointed way on the costs and delays of civil proceedings, were published almost two centuries ago, and yet they still ring true today. In Ontario as well as across the country, it has been widely acknowledged within the profession for years that there are significant flaws with our civil justice system. Moreover, clients can be short-sighted, lawyers can give bad advice and judges can become too easily frustrated. Even where reasonable clients find themselves in the hands of good lawyers, who appear before the most able judges, lawsuits can take on very nasty lives of their own.
It may be that some of the problems are, at least to a degree, intractable. However, we must also keep in mind that many of the very same processes which drive up costs provide us with assurances that the system is fundamentally fair. We could eliminate all manner of pleadings, oral and documentary discovery, and move each and every case directly to a 15 minute trial, similar to those seen on popular television, but few would argue that the resulting costs savings would justify the damage done to the process. Without meaning to suggest that we could not do better in terms of reducing costs and delay, we should recognize that a just and fair legal system will, by definition, have very real costs associated with it.
Lawyers should, and do, donate their time pro bonofor worthy causes and needy clients, and I commend the members of the profession who engage in this form of public service. It is not realistic, however, to expect that charity will, by itself, provide meaningful access to justice for all those who need it. Similarly, it is not realistic to think that we will have universally available legal aid for civil cases any time soon.
I therefore wish to preface my comments with a simple proposition: If one accepts that there will necessarily be costs associated with any justice system worthy of the name, and that funding sources, apart from the clients themselves, are necessarily limited, one would wish to ensure that careful consideration is given to the true cost implications of any proposed reforms, in very practical terms. I will return to this theme at the conclusion of my remarks today.
We should remember that our system does manage to provide meaningful redress for many ordinary Ontarians, in spite of the costs associated with it. Many apparently vulnerable individuals, such as tort victims, wrongfully dismissed employees and others, are routinely able to obtain legal remedies on a cost effective basis. The legislative changes which explicitly allowed lawyers to charge contingency fees has opened the doors of the justice system for many plaintiffs who would otherwise never be able to afford to hire a lawyer, without generating the flood of frivolous cases anticipated by those who opposed permitting such fee arrangements. Similarly, class action legislation in Ontario has allowed plaintiffs who would not ordinarily be able to afford to bring an action to do just that.
Once again, I am not suggesting that the system is perfect; there are many types of cases that are not amenable to contingency fee arrangements or class actions, and even when they are, they are not always fair to the client. My point is merely that it is wrong to think about our civil justice system as a complete failure. Given that the settlement rate for civil lawsuits in Ontario is over 96%, it distorts our analysis somewhat if we focus too closely on the cost associated with the 3% or 4% of cases that go all the way through trial.
We cannot design a process which will make perfect justice available for everyone, at no cost. I am confident, however, that the legal community in Ontario, (in which I include not only the bench and bar, but also academic institutions and the government), can achieve a system in which an increasing number of ordinary people can achieve a fair result in resolving their civil disputes, in a cost effective manner. As I have said, in working towards this goal, we should focus not only on the present system’s short-comings but also on its successes. For the simple fact is that our justice system is the envy of the world and a model for every free and democratic society.
I turn now to the situation that presented itself in the Toronto Region of the Superior Court in the Spring of 2004. I think it is fair to say that the changes to the civil justice system in the Toronto Region of the Superior Court, which were implemented in late 2004, were successful in dealing with the problems that confronted us. My hope is that there are lessons to be learned from the approach that was taken to address the very significant challenges we faced at the time.
The adage that “necessity is the mother of invention” is entirely apt in describing the reforms. By mid-2004, dates for routine motions were being set more than six months out. Long trials were being scheduled more than three years into the future and the waiting times for shorter trials were increasing to over a year. As a consequence of the delays in getting cases on to trial, the number of interlocutory motions was increasing exponentially. In June of that year, it emerged that the Court had not managed to reach some 38 long trials which were to have started that Spring on fixed trial dates, because there were no judges to hear the cases. The simplified procedure for claims under $50,000.00, a then recent innovation intended to provide affordable, accessible and timely justice for smaller cases, was generating involved, multi-day trials, thereby defeating its very purpose and using up valuable judicial resources in the process. Any sensible observer of the justice system in the Region knew that the end was in sight when the staff at the case management masters office, the nerve centre for civil case management, literally “took the phone off the hook”, signifying that the system was hopelessly backlogged.
It was apparent that if a solution was not found and implemented immediately, and the backlog haemorrhaging was not staunched, the Toronto civil lists would implode come September 2004.
The Toronto Region of the Superior Court is the largest civil trial court in Canada. It is composed of more than one hundred judges and masters, who are supported in their work by over five hundred court services employees.
Toronto is the commercial and financial engine of the country, as the home to many head offices, insurance companies, banks, manufacturing concerns and as the primary centre of the Canadian securities industry. The ability to attract and retain business depends in part on access to fair and timely dispute resolution. A properly functioning civil justice system in Toronto is integral to the success of Ontario’s economy.
On an individual level, the people of Canada’s largest city also require a dynamic and responsive justice system. They are entitled to expect that their legal rights and civil liberties will not be compromised simply because the legal system is too busy to deal with them.
It was unimaginable and unacceptable that the civil justice system could “melt down” for the beginning of a new court year. In order for the Court to meet its obligations as an important part of the economic infrastructure and as one of the province’s most important public institutions, a solution had to be found quickly, without alarming Ontarians or sending a wave of panic through business circles.
Although the seriousness and magnitude of the problems were known by those involved, it was another matter to ascertain their root causes, so that viable solutions could be developed. The problems had to be viewed through the lens of three fundamental principles: access to justice, judicial economy, and proportionality. More to the point, once answers were forthcoming, the solutions had to be capable of speedy implementation.
I had only recently been appointed as the Regional Senior Justice for Toronto, and I began by consulting with as many people as I could in an effort to pinpoint the causes of the problems. Work began in earnest over the July 1st weekend. A small team, comprised of a handful of judges, civil servants and leading lawyers was put together.
It became clear at the outset that the case management system was going to need major surgery. Full case management had been introduced in Toronto only three years previously, with the enactment of Rule 77. A great deal of hard work and planning had gone into the introduction of Rule 77, and any major changes were going to require close communication with a number of stakeholders, in order to ensure their support, such as Chief Justices, the Toronto Region judiciary and masters, Bar organizations, mediators and courts services staff.
It also appeared at the outset that the aggressive timeline which was needed to prevent a full-blown crisis made it impossible to effect the solutions by way of amendment to the Rules of Civil Procedure. A decision was taken to introduce the most urgently needed changes by means of a Practice Direction, in which such changes could be mandated and made effective almost immediately. We set a deadline of December 31, 2004, for identifying the causes of the problems, designing the solutions, and drafting, publishing and implementing the Practice Direction. As events unfolded, it was ultimately possible to enact a new Rule on an expedited basis, and Rule 78 was enacted to codify some of the reforms. On January 1, 2005, sweeping changes were introduced in the civil justice system in Toronto Region, for the second time in less than four years.
We now have more than two years of experience with this new regime, and while there is unquestionably a great deal of work which remains to be done, the Practice Direction and Rule 78 are widely seen to have brought about vast improvements for those who use, and work in, the civil justice system.
As I mentioned a moment ago, Rule 77 came into effect for all civil cases in Toronto in 2001. In an attempt to address the costs, delays, and backlogs which plagued the system, and thereby acted as barriers to justice, Rule 77 of the Rules of Civil Procedurehad been designed so that virtually all of the civil cases would be aggressively and intensively managed by the courts i.e., “universal case management”. Rule 77 had previously been implemented in Ottawa and Windsor and was generally viewed as a success in those jurisdictions. In the months leading up to its implementation in Toronto, there was great optimism that it would bring meaningful improvements there as well.
As I also mentioned before, however, it was apparent by mid-2004 that the civil justice system in Toronto was lurching towards a crisis, which many judges and lawyers believed had been brought about, at least in part, by the ambitious package of reforms symbolized by Rule 77. We had to figure out what had gone wrong.
As you know, there are a variety of steps which occur in a civil action before the case is actually heard by a trial judge, such as the exchange of pleadings, disclosure of documents, examinations for discovery and pre-trial conferences. Prior to the introduction of case management, the pace and the way in which these steps occurred was determined almost entirely by the parties and their counsel, sometimes with considerable inefficiency and at great cost. In an effort to address this problem, under case management, the courts were given an immediate supervisory role over the progress of cases moving through the system. The various steps prior to trial were to be determined by pre-fixed timetables, and case management judges and masters were to be assigned to individual cases to assist the parties in moving matters along, or in settling or narrowing issues.
The theory was that with early and active intervention by the court, proceedings would become streamlined and judicial resources would be focused where they were needed most. Cases would either settle earlier, or if they were not going to settle, would be brought on for trial more quickly and more efficiently.
Under the Rules of Civil Procedure, case-managed actions began with “early mandatory mediation”, at the very outset of the lawsuit. Mediation is an informal process in which a neutral third party helps participants reach their own agreement for resolving their dispute. Unlike a judge or arbitrator, the mediator has no authority to impose a solution. Rather, the mediator’s role is to serve as a neutral facilitator, to try to bring the parties to a mutually agreeable compromise. He or she is ordinarily selected by mutual agreement between the parties, as someone in whom they all have confidence. Significantly, for our purposes, mediators are in private practice and are outside the court system, and thus are paid by the parties.
The case management rules prescribed extremely short deadlines for conducting the mediation.[2] However, in practice the parties would frequently not communicate or cooperate in scheduling the mediation session, or could not agree on a mediator, or did not agree about what steps, if any, could or should be taken in advance of the mediation. In serious casualty cases, parties could be required to attend mediation before the plaintiff’s injuries had stabilized. The rule was deliberately designed so that the mediation would take place before one party could compel the other to provide any type of disclosure, such as providing copies of their documents or names of witnesses. In cases with multiple defendants, the mediation deadline sometimes expired before all the parties had been served, and thus were even aware of the lawsuit.
As stated, a failure to agree to conduct the mediation within the time limits set out in the rule resulted in court staff assigning a mediator to the case, who was randomly selected from a roster of whichever mediators happened to be available. He or she was ordinarily unknown to the parties and their lawyers, would usually not have any expertise in the subject of the dispute and would be left with the unenviable task of bringing the reluctant parties to the table. Not surprisingly, the vast majority of these forced early mediations did not result in settlement.
The upshot of all of this was that the mediation became an unavoidable, costly and useless obstacle in the path of the party who wanted to move the lawsuit forward (normally the plaintiff). There were countless case conferences, in which judges and masters were asked to extend deadlines or otherwise assist parties in cancelling or delaying the mediations. A body of law developed, as a result of contested motions, about the circumstances in which a mandatory mediation could be deferred, or whether parties could proceed to mediation with a mediator of their choice, if they had missed the deadline and the court office had already randomly assigned a stranger from the roster.
Another important feature of case management was the establishment of timetables for the completion of the steps required to advance the proceeding. Under Rule 77, timetables had to be filed within 30 days after the mandatory mediation session, if it had not resulted in a settlement of the lawsuit. Thereafter, case conferences were convened, in which judges and masters were asked to fix or vary timetables, where parties could not, or would not, agree on deadlines, or where they later failed to live up to them. Once again, these case conferences ate up costs and slowed cases down, since the booking dates for case conferences stretched further and further into the future because of the backlog of cases.
Time does not permit me to elaborate today about a number of the other aspects of Rule 77, but I would like to mention one final example. As part of the philosophy of case management, trial dates were fixed regardless of whether or not any of the parties had set the action down for trial. As I mentioned a few moments ago, fewer than 4% of the civil cases which are started in Ontario actually go all the way through to trial. Most are either not defended at all, or settle at some stage before trial. Ordinarily, a trial date is assigned only if the case has not settled and one of the parties indicates that he or she is ready for trial and does not want to take any further pre-trial steps (e.g. discoveries). Because the vast majority of cases settle before this happens, trial dates are ordinarily only given out in a small number of cases.
Under Rule 77, a trial date was assigned for every single lawsuit in the system at trial scheduling court (a court which sat regularly simply to set trial dates), even though the majority of the cases were not ready for trial, although they were supposed to be, and would probably never go to trial in any event. It did not take long for the trial schedules to fill up for months and then years into the future, and the waiting times for trial dates mushroomed. As soon as lawyers noticed this, they attempted to secure trial dates years down the road for cases that were not ready to proceed, on the assumption that they would be ready for trial by the time they were reached. Needless to say, as often as not, when they were reached, the parties were still not ready to go, and before long, the trial lists were in shambles.
As some lawyers described the process, it was “hurry up and wait” which meant that cases were pushed through on tight timetables, only to languish waiting for trial dates that were three years away, mainly because the ballooned trial list was laden with cases that were not ready for trial. One side effect of this was there were many motions that would not have been brought if trial dates were available on a timely basis.
Notwithstanding its early success in Ottawa and Windsor, universal case management was not workable in Toronto. This was largely due to the volume of cases, and relative lack of resources. The bulk of the case management work fell to a handful of case management masters and court administrators, but notwithstanding their Herculean efforts, it soon became apparent that they could not micromanage the almost 20,000 cases filed every year in the Toronto Region, to the extent mandated by Rule 77.
In addition to the problems faced by the Court, the litigants bore the cost of the numerous procedural steps which were added to the civil justice process. As I have said, the various case conferences, filings and mandatory mediations referred to above usually did very little to move the case along, however clients were paying their lawyers for what were frequently premature or unproductive steps.
What I have euphemistically called the “challenges” that we faced in 2004 were not caused solely by Rule 77. The simplified procedure cases that I spoke about before and long trials (more than 10 days) were also presenting us with great “challenges”.
More than 25% of the cases commenced each year in Toronto are filed under the simplified procedure available for cases involving less than $50,000.00. Unfortunately, the provisions of this Rule that were designed to keep the pre-trial steps as simple and inexpensive as possible, were making the trials themselves extremely complicated. Because the parties had not had any discoveries before trial, counsel often conducted one during the trial, which consumed excessive amounts of time. More generally, there was a lack of proportionality and trials involving $20,000.00 or $30,000.00 were dragging on for four or five days. The judges blamed the lawyers and the lawyers blamed the judges, but no one seemed to be able to stop it.
At the other end of the spectrum, long trials (that is, those which were projected to last more than 10 days) also created their own set of “challenges”. Many different types of cases are projected as ‘long’ trials, however it is important to bear in mind that a significant proportion (approximately two-thirds) are large casualty cases, where plaintiffs are attempting to obtain compensation for serious personal injuries. As I mentioned at the outset, 38 long trial dates were missed in the Spring of 2004. When these cases were adjourned to the Fall, it produced a domino effect, since all the long trials that were supposed to start in the Fall had to be put off.
As the number of long trials which were not being reached on their appointed dates increased, the settlement rate decreased. When word got around that the Court would be forced to adjourn a fixed trial date, settlement rates took a free fall. This compounded the backlog and brings me to a very important point that applies not just to long trials, but to all cases.
Real trial dates lead to settlements.
I begin with the proposition that responsible counsel do not settle their cases until they have considered the issues involved, assessed the strengths and weaknesses of their case and investigated the facts, including facts that may initially be within the exclusive knowledge of the opposite party. I hasten to add that all of this should be proportionate to the amounts involved and seriousness of the issues, and as cost-effective as possible.
My next proposition is that, subject only to investigating the matter in a proportionate and cost-effective way, responsible lawyers settle their cases as early in the life of the file as they can. Unfortunately however, for a variety of reasons, if the parties are left to their own devices, they will not simultaneously arrive at the moment when they are all ready to settle.
It is for this reason that I say that real trial dates settle cases. What I mean by this is that the intense preparation that ordinarily takes place immediately before a trial, and the parties’ collective realization that they are going to have a result imposed on them by a court if they do not sort the dispute out themselves, leads all parties to focus very attentively on settlement, and to do so at the same time. This is a good thing: there should be a point of reckoning when the parties can make an informed decision about whether or not they wish to settle or proceed to trial. When the trial lists fell apart and the parties knew that their case was not likely to be reached for trial, (or that the Court would happily adjourn the case if it was), the day of reckoning, the necessary catalyst for settlement, never arrived. The settlements of the more intractable cases, which ordinarily take place on the very eve of trial, stopped occurring. The long trial list worked on a fine balance and was judicially staffed based on a known settlement rate for cases. When the settlement rate fell off there were not enough judges for the cases scheduled to start.
In short, by mid-2004, costs and delays had ballooned for litigants in Toronto. The Court system was overburdened with unproductive work tying up valuable resources. While the simplified procedure had proven to be popular, it was not achieving its goals of making civil justice more affordable. Because parties could not get their cases heard, especially if their trial was expected to be lengthy, cases which would ordinarily have been settling were languishing in the system.
Through the Summer and early Fall of 2004 there were extensive consultations with lawyers, judges, masters and court administrators both inside and outside Toronto. A number of key themes emerged. First, the volume of cases in Toronto had made it impossible to transfer the successes and flexible practices from Ottawa and Windsor to the unique challenges present in the Toronto Region. Successful case management requires a degree of flexibility that cannot be achieved when the Court is dealing with vast numbers of cases. Universal case management had to be reworked to apply resources to the cases that “needed” case management. The court-overseen timetabling requirements were unachievable and vast court resources were being eaten up arranging and rearranging lawyers’ schedules. The escalation of case conferences was imposing considerable and unnecessary costs on the parties, and draining court resources. The work required of the masters had to be reduced to fit the available personnel.
Second, imposing mediation at the very outset of each and every case, before the parties and their counsel were properly informed, was proving to be costly and unproductive. Third, the delays in getting cases on to trial were unacceptable and were creating its own host of problems. Fourth, simplified procedures were not working and were tying up critical resources. Finally, Toronto was known as the “motions capital of the world” because the many motions generated by the problems set out above.
I do want to say what, in my view, did not cause the problem. Court staff, judges and in particular the case management masters were more dedicated and diligent than anyone had a right to expect. They were given an impossible task, and worked under what ultimately proved to be impossible circumstances. Similarly, I do not accept the assertion, advanced in some quarters, that Toronto lawyers are to blame, and that the members of the Bar in Toronto work less cooperatively and civilly than lawyers elsewhere in the province. As someone who grew up in Alberta, I can certainly understand that anything that has to do with Toronto is a useful whipping post, but in my experience the negative stereotype about the Toronto Bar has no basis in fact.
Finally, I emphasize that the drafter of Rule 77 had shown great insight about addressing problems in the civil justice system. For the reasons I have already stated, it makes perfect sense for parties to know that real, fixed, trial dates, what I called their day of reckoning, await them. It is reasonable to insist that parties attempt to resolve their case at a mediation before they consume the significant public and private resources involved in the conduct of a trial. Moreover, it is in the parties’ and the public’s interest for the Court to assume some control over pending cases, to ensure that they are not languishing because of inattentive lawyers, or because the case has taken on a nasty life of its own. The theories behind Rule 77 were unassailable; but procedure needed to accommodate the reality of dealing with 20,000 new cases every year.
In countless meetings through September and October, the ad hoccommittee turned its attention to the detailed work of figuring out the solutions, which would form the basis of the Practice Direction and later, Rule 78. It soon became clear that it was critically important to ensure that the various individual reforms we were considering could work together as a whole. Further, while the reforms had to set out the basic procedure for the effective management of all of the many cases in the system, it was equally important that there should be a degree of flexibility, in recognition of the fact that the issues, problems and personalities involved in each piece of litigation are different.
After a great deal of coffee and debate, the Practice Direction was finalized in November 2004 and was approved by Chief Justice Smith and came into effect on December 31, 2004. Rule 78 came into force shortly thereafter.
Case Management was not eliminated. Rather, there was to be “case management as necessary, but not necessarily case management”. The reform was to eliminate “universal case management” in Toronto. The goal was to provide “effective, flexible and targeted case management”, by only case managing the cases that truly required court intervention. The intention was that there would be a reduction in the number of unnecessary attendances by counsel and thus reduced costs to parties. At the same time, court resources would be freed up to address more substantive issues.
Specifically, case management could be obtained on motion in complex multi-party actions, or where one or more parties were guilty of chronic obstruction. Apart from this, the parties were to be left to run their own lawsuits. Lawsuits were returned to the lawyers to manage and flexibility was to be the touchstone in cases that were to be case managed by the Court.
The other notable aspects of the reforms included discontinuing trial scheduling court, and returning to a system where trial dates would only be given out after one of the parties signified that he or she was ready to proceed to trial. Steps were taken to ensure that trials actually proceeded on their fixed date, and a strict ‘no adjournment’ policy was put in place. The jurisdiction of case management masters was expanded, in order that they could preside at pre-trials in cases involving less than $50,000.00.
The notion that the parties would run their own cases was subject to an important caveat: parties or counsel would have to attend Status Hearings if their case appeared to be languishing, and in particular, if the case was not set down for trial within two years of being issued. The procedures governing Status Hearings, which were first introduced in the early 1980s, were modified so that counsel could avoid attending if they took concrete steps to move their action forward after the court office advised them that their delay had not gone unnoticed, and so that case management masters could preside in place of judges.
Further, in an attempt to make pre-trials more meaningful, the requirements as to the information which had to be included in pre-trial briefs was greatly enhanced, so that both the parties and judges would be better prepared to focus on the case at the pre-trial. It was felt that this would increase the rates of settlements which could be achieved at pre-trials, and make trial management more effective in those cases which could not be settled.
The way we dealt with mandatory mediation was as important as any other single reform. There was considerable pressure by the Bar to eliminate mandatory mediation altogether as a costly and ineffective unnecessary step. This was rejected. Instead the members of the ad hoccommittee were uniformly of the view that the right approach was to insist that the parties engage in mediation at some point before trial, but to extend the timelines so that mediation would occur when it was most likely to be effective. A recommendation of the mediation community was adopted expanding mandatory mediation to include simplified procedure cases, which had been excluded under the former rules. The only expandable resource available to the court system was the outside mediation community and the decision was to capitalize on this valuable resource, not reject it!
The essence is that mediation continues to be mandatory but that the parties should control the timing of such an important event to the extent that this is possible. To ensure that parties do not bypass the step, trial dates are not provided until mediation has been conducted, or at least booked. Mediators know that mediation is about “timing, timing and timing”, and the reform in Rules 24.1 and 78 recognizes this truism. Mediation must now, in the words of the practice direction, be conducted “at the earliest stage at which it is likely to be effective”, and in any event within 90 days after the case is set down for trial at the latest.[3] In wrongful dismissal and simplified procedure cases, the mediation must take place at the very front end of the lawsuit.
As a further reform, I introduced what is known colloquially as “designated hitter” mediations, which are conducted by handpicked judges with expertise both as mediators and in the area of law involved in the dispute. This is done immediately prior to trial. There are, therefore, three mediations under the present regime: Mandatory mediation, a pre-trial conference and a DH mediation immediately before trial.
The overarching theory of these and the other reforms introduced by Rule 78 and the Practice Direction was to reduce the number of appearances and formal litigation steps as much as possible, and to maximize the effectiveness of those steps that were taken. As stated, the underlying principles are access to justice in the form of shortened delays and reduced costs, the most efficient use of judicial resources, and proportionality and tailor-made case management where needed. Mediation became the centrepiece. Arrangements are underway to conduct a formal study of the results of the reforms over the next several months.
It is nonetheless not too early to declare at least partial victory.
We already know that although the number of civil cases in the system continues to grow, the waiting times for motion dates and trial dates are down. In some cases, such as masters’ motions and trials under 10 days, the reductions are especially dramatic. Dates for trials under 10 days are now available within less than one month in cases of five days or less and available within five months for trials of six to ten days. These cases formerly had a twenty-four month waiting period. Even for long trials, the waiting time has been reduced from approximately three years to just over twelve months.
Because case management masters have been relieved of the chore of conducting unnecessary case conferences for scheduling matters in routine cases, their time has been freed up to deal with more important practice motions, on a more timely basis, to conduct pre-trials in simplified procedure cases and to conduct Status Hearings. This in turn has freed up more judges to conduct trials, which shortens the waiting times, which leads to earlier negotiated settlements before costs spin out of control. Notably, although early dates are available, there has been a marked reduction in the nature of two thirds less fewer court “events” (which can mean anything from a motions or case conference, to a pre-trial or trial) for each case before trial.
Altogether, the reforms led to a number of changes that improved the court system. Trial scheduling court has been disbanded removing this time consuming step. Masters have been re-deployed to perform important pre-trials and motions. Since the timelines have been extended, the success rate for mandatory mediations has almost doubled. Further, it is said that the number of pre-trials in simplified procedure cases has been reduced to about one third the former number reflecting the wisdom in extending mediation to those cases. The shortened waiting time for trials has resulted in fewer motions. The bottom line is that as a result of the changes taken globally, more judges have been freed up to handle estates, family and criminal matters which had been suffering from lack of judicial resources, and delays on those lists have been reduced.
Lest anyone think that I am being immodest in declaring at least partial victory, let me repeat what I said before. The reforms were borne of necessity and were the culmination of a great deal of input from a wide variety of people. They were designed by a working group that included representatives of mediators, Bar groups, masters, judiciary, and government court administrators. They were implemented by the assiduous efforts of the court staff, masters and judges of the Superior Court in Toronto Region. Equally important, the members of the Bar rose to the challenge and, with the assistance of the Law Society CLE programmes, are working with the re-designed practices and procedures.
In spite of the work that has gone into these reforms, and although the Bench and Bar have achieved substantial success in Toronto, litigation is nevertheless still beyond the financial means of the average person in Ontario. If we are committed to the rule of law and access to justice, we must redouble our efforts to address cost and delay. When the formal review of the Rule 78 reforms has been completed, I am hopeful that there will be valuable lessons to assist in our continuing effort to introduce constructive reforms to the civil justice system in Ontario.
In the meantime, and in concluding my remarks today, I would like to offer some preliminary observations of what those lessons might be.
First of all, I would begin with the proposition that every step which is added to a proceeding must be presumed to be an impediment to justice, unless the benefits of the proposed added step are empirically demonstrable. Recall, that the average Canadian family cannot afford unnecessary and costly steps to their already expensive lawsuit.
Early mandatory mediation, detailed mandatory timetables and numerous case conferences may be justifiable on a theoretic basis, but each and every one of these steps costs money, and if the added steps are not in fact moving cases towards resolution, they will drain away resources that litigants could otherwise use on steps that will have greater value in the long-run. It was the litigants of modest means, who were intended to be the primary beneficiaries of Rule 77, whose counsel argued most vociferously for the reforms.
It is imperative that when adopting any added procedure, the approach ought to be to add more steps only when they can be justified after rigorous scrutiny of the likely practical results. We must strive to find a balance where we “touch” each file as few times as possible, but make each “touch” of the file as productive as possible in moving the case forward. This should be done with a view to reducing the costs that the parties must bear for multiple attendances and with a view to reducing the depletion of judicial resources. Under the reforms, the “events” on average have been reduced by more than half.
Secondly, I suggest that we remain ever mindful that procedure should be the servant of substantive justice, and not vice versa. There is the temptation because of our training as judges and lawyers to become focused on procedural points to the exclusion of the substantive rights of parties. At the risk of stating the obvious, process is not an end in itself. If a procedural code or provision is ornate and intricate, the chances are that it will be expensive and cumbersome to administer for both lawyers and courts and that it will thus detract from substantive justice. Keep it simple.
Thirdly, I suggest that mediation has become an integral part of our justice system. This is a good thing, but we must also keep this broad generalization in perspective. For one thing, not every type of case is amenable to mediation. Not every party wants a mediated resolution to his or her dispute. A wasted mediation is an added cost to the litigants and may have other serious negative effects on the case. Even in those cases which are ripe for mediation, the terms of any negotiated settlement will be dictated by the parties’ knowledge of what the non-mediated result might look like. Obviously, a party with a strong case on the merits can expect to negotiate a more favourable result than a party with a weak case, which is as it should be.
Quite apart from the merits of a party’s case, however, the ‘non-mediated’ result which will drive settlement discussions also refers to process. Parties, and in particular vulnerable parties, will approach negotiations very differently, depending on whether or not a trial is affordable and available without unreasonable delay. There is a risk that the negotiations which take place during mediations, and the terms of any settlement, will become badly lopsided if costs and delays become a disproportionate factor in the mediation dynamic. No party should be forced to take an un-fair settlement at mediation simply because the opponent will be able to grind him or her down and drag a case out so that it takes on Dickensian proportions.
In conclusion, nothing is more effective in the court system than a “day of reckoning”, the prospect of an early and ‘real’ trial date. The very least, and at the same time the most constructive thing that our trial courts can provide to assist parties in resolving their disputes is to ensure that a judge is available to try the case if it cannot be settled and that a trial date is available within as short a time as possible after the case is ready for trial. In short a fair and just system of justice requires a courtroom, a judge and a non-adjournment policy which in turn will produce settlements and be less costly to the litigants.
My job today has been easy. I have spoken only in general terms about access to justice, judicial economy, and proportionality, all of which are complex and difficult subjects. Let’s hope that the speakers who come after me in this series can contribute to the rigorous debate that is needed to build the civil justice system we would all like to see and strive to create.
Thank you. Merci pour votre attention aujourd hui.
[1] I would like to thank Sean Dewart, the head of civil litigation at Sack Goldblatt Mitchell LLP for his assistance in preparing this piece. I would also like to thank Kristin Ali and Yan Kiu Chan, law clerks for the Court of Appeal for Ontario, for their editorial support.
[2] Ordinarily, within 90 days after the first defendant appeared in the proceeding.
[3] Rule 24.1.09.1(2) provides for wrongful dismissal cases and simplified procedure cases within 150 days after close of pleadings and other cases within 90 days after the action is set down for trial. In practice, this means before the pre-trial in cases other than wrongful dismissal and simplified procedure.
Appendix to speech “Civil Justice Reform – The Toronto Experience” given by the Hon. Warren K. Winkler C.J.O. on September 12, 2007 at the University of Ottawa Faculty of Law as part of the Warren Winkler lectures on Civil Justice Reform Partial statistics – implementation of Rule 78
Heard 5 times the number of long motions (2+ hours) than they did in 2006:
Between Jan-June 2006: 18
Between Jan-June 2007: 100
2005: 2098 pre-trials
2006: 1314 pre-trials
2007: 382 pre-trials (as of May)
Note: The number of Rule 76 actions being commenced has remained virtually unchanged
Long trials (10+ days): 13-14 months
Trials 10 days or less:
No adjournment policy
Fixed dates