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Resolution 97-15-M: Systems of Civil Justice

WHEREAS the Systems of Civil Justice Task Force was established in 1995 to inquire into the state of the civil justice system on a national basis and to develop strategies and mechanisms to facilitate modernization of the justice system so that it is better able to meet the current and future needs of Canadians;

WHEREAS the Systems of Civil Justice Task Force tabled its final report at the 1996 Annual meeting in Vancouver;

WHEREAS the Systems of Civil Justice Task Force report concludes that there is a lack of accessibility of the civil justice system in terms of:

• the speed with which disputes are resolved in the civil courts,
• the affordability of dispute resolution in the civil courts, and
• the lack of public understanding of the work of the courts and the system as a whole.

WHEREAS the Systems of Civil Justice Task Force report urges a civil justice system for the twenty-first century which:

• is responsive to the needs of users and encourages and values public involvement;
• provides many options to litigants for dispute resolution;
• rests within a framework managed by the courts; and
• provides incentives for early settlement, and results in trials being the mechanism of last resort for determining disputes;

WHEREAS the Systems of Civil Justice Implementation Committee was established in October 1996 to encourage broad review and consideration of the Report and to ensure that appropriate follow-up steps are taken;

BE IT RESOLVED THAT:

1. The Canadian Bar Association adopt the Systems of Civil Justice Task Force recommendations listed in Schedule 1, attached hereto;
2. The Systems of Civil Justice Implementation Committee develop and execute an action plan for implementation of the recommendations adopted by CBA Council, subject to the availability of funding and approval of the National Executive Committee;
3. The Implementation Committee report on the progress of implementation of the recommendations at the 1997 Annual meeting in Ottawa.

Certified true copy of a resolution carried as amended by the Council of the Canadian Bar Association at the Mid-Winter Meeting held in Mont Tremblant QC, February 22-23, 1997.

John D.V. Hoyles
Executive Director

Schedule 1

1. Every jurisdiction
   1. make available as part of the civil justice system opportunities for litigants to use non-binding dispute resolution processes as early as possible in the litigation process and, at a minimum, at or shortly after the close of pleadings and again following completion of examinations for discovery;
   2. establish, as a pre-condition for using the court system after the close of pleadings, and later as a pre-condition for entitlement to a trial or hearing date, a requirement that litigants certify either that they have availed themselves of the opportunity to participate in a non-binding dispute resolution process or that the circumstances of the case are such that participation is not warranted or has been considered and rejected for sound reasons; and
   3. ensure that individuals involved in helping litigants in non-binding dispute resolution processes have suitable training and support to carry out this function.
2. Each jurisdiction through its rules of procedure impose on all litigants a positive, early and continuing obligation to canvass settlement possibilities and to consider opportunities available to them to participate in non-binding dispute resolution processes.
3. Every court undertake studies or pilot projects to determine best practices concerning the integration of non-binding dispute resolution processes in the post-discovery stages of litigation.
4. Every court have a caseflow management system to provide for early court intervention in the definition of issues and for the supervision of the progress of cases.
5. While the design of a caseflow management system should be at the discretion of each court, at a minimum systems should provide for
   1. early court intervention by designated and trained individuals in all cases;
   2. the establishment, monitoring and enforcement of timelines;
   3. the screening of cases for appropriate use of non-binding dispute resolution processes; and
   4. reliable and realistic fixed trial dates.
6. Every court that does not currently provide for fixed trial dates develop practices and procedures to ensure greater certainty and reliability in the fixing of trial dates.
7. Every jurisdiction provide for case management in all cases where there is a need for judicial supervision or intervention on an ongoing basis.
8. Every jurisdiction provide a multi-track system for the resolution of civil disputes.
9. Every court set timelines for the overall determination of civil cases and develop suitable means by which to enforce such timelines.
10. Every jurisdiction provide by its rules of procedure for the automatic dismissal of cases where they have not been determined within a specified period, subject to the discretion of the court to order otherwise in compelling circumstances.
11. Every trial court require
    1. that judgements be rendered promptly and by no later than six months after completion of the trial, and
    2. develop procedures for monitoring compliance with this standard.
12. The CBA adopt national time guidelines as a model for Canadian courts and for the legal profession.
13. Every jurisdiction that has not already done so give serious consideration to providing for small claims courts with a monetary jurisdiction of up to $10,000. Procedures should include options for use of non-binding dispute resolution processes.
14. Every jurisdiction establish expedited and simplified proceedings that are
    1. mandatory, save as the court may otherwise direct, for all cases where $50,000 or less is at issue; and
    2. available at the option of the parties and with leave of the court in other cases where more than $50,000 is at issue and where the subject-matter of the case warrants.
15. The CBA work with selected jurisdictions to establish pilot projects using "will-say" procedures, so as to determine whether it is useful and fair to require will-say documents in civil cases to compel early disclosure of anticipated evidence, and to assess the impact of such a requirement on delay, costs and discovery.
16. Every jurisdiction
    1. amend its rules of procedure to limit the scope and number of oral examinations for discovery and the time available for discovery, and
    2. devise means to assist parties in scheduling discoveries and in resolving discovery disputes in an efficient manner.
17. Every jurisdiction amend its rules of procedure concerning experts to
    1. require early disclosure of expert reports,
    2. provide for the exchange of expert critique reports in a timely fashion before trial or hearing, and
    3. impose a continuing obligation to disclose expert reports as they become available.
18. In every jurisdiction, judges play a more active role in assisting parties to limit the costs and delay associated with the use of experts.
19. Every jurisdiction
    1. strictly limit appeals from non-dispositive interlocutory orders,
    2. provide for costs awards in suitable cases, payable immediately, in interlocutory matters, and
    3. introduce strict financial sanctions, payable immediately, for clear cases of abuse.
20. Every jurisdiction provide for, and promote the use of, summary trial procedures.
21. Every jurisdiction
    1. develop a system of incentives and sanctions to encourage settlement and the prudent use of court time, and
    2. as an essential component of such a system, undertake a reassessment of current indemnity principles.
22. Every appellate court
    1. develop and promote the attainment of the following goals:
       1. the initiation of appeals within 30 days after the filing and service of the trial judgement;
       2. the hearing of appeals within 9 to 12 months after the filing of a notice of appeal; and
       3. the rendering of judgements promptly and, save in complex cases or where new questions of law are being developed, by no later than 6 months from completion of the appeal; and
    2. develop procedures to monitor performance against these goals.
23. The CBA, in consultation with members of the judiciary and lawyers, develop guidelines for the production of appeal books.
24. Every appellate court take a more active role in supervising the progress of appeals.
25. Every jurisdiction consider measures to give appellate courts, including the Supreme Court of Canada, greater control over their civil dockets.
26. 1. The CBA enter into discussions with provincial and territorial ministries of education or their equivalents to facilitate the teaching of dispute resolution skills and the operation of the civil justice system in Canadian elementary and secondary schools; and
    2. these efforts be undertaken in consultation with law societies, law schools, members of the judiciary, and governments.
27. Every court provide point-of-entry advice to members of the public on dispute resolution options in the civil justice system and available community services.
28. Every court undertake initiatives to assist unrepresented litigants, including simplifying procedures and forms and using plain language.
29. Every court establish an advisory committee composed of members of the public and others involved in the civil justice system for the purpose of obtaining advice on
    1. ways to improve the administration of civil justice,
    2. reducing or removing barriers to access, and
    3. implementing, evaluating and monitoring reform measures.
30. Every court develop and implement a charter specifying standards of service to be provided to members of the public coming into contact with the court.
31. Every jurisdiction establish a suitable model for management and administration of the courts that embodies the following:
    1. preservation and enhancement of judicial independence in both its individual and institutional elements,
    2. preservation and enhancement of the independence of the Bar,
    3. strong community input and public involvement,
    4. recognition by governments of the need for autonomy in the management and administration of the courts while ensuring accountability for the expenditure of public funds,
    5. within the model chosen, clear lines of responsibility and accountability for administrative and operational matters,
    6. a commitment by governments to provide adequate funding and administrative infrastructure,
    7. recognition by governments in budgeting processes of the revenue-producing aspects of the court system and of cost recovery achieved through court fees, and
    8. provision for enhanced training and development to create additional well-trained and efficient court administrators and managers.
32. The Association of Canadian Court Administrators, in conjunction with the CBA and representatives of the judiciary, develop a proposal and budget for a demonstration project in one or more trial courts to study the cost-effectiveness of operations, the cost of proposed changes, and the value of results of reform.
33. The CBA create a working group to devise a plan for the development of standards for court operations and to recommend how the plan should be implemented. The working group should deliver a preliminary report to the annual meeting of the CBA in 1997.
34. Every jurisdiction establish, on a priority basis and to the extent that it has not already done so, enhanced computer-assisted management information systems to enable proper management of the work of the courts and assessment of the impact of reforms.
35. The Association of Canadian Court Administrators establish a working group to develop national standards and to recommend procedures for the use of electronic forms, filing, and document storage for legal purposes.
36. 1. Every jurisdiction develop criteria and a system for the training, monitoring and supervising of all individuals who provide court-supported dispute resolution services, and
    2. the CBA develop a set of model principles and criteria to assist courts in this process.
37. Every jurisdiction in which this has not yet occurred give immediate consideration to the merits of adopting a twelve-month court calendar.
38. Every jurisdiction specify in its rules of professional conduct an obligation on lawyers to explore fully the prospects of settlement with their clients and an obligation to explain available dispute resolution options to clients in relation to litigation matters
39. 1. Law schools, Bar admission course educators and continuing legal education providers offer education and training on conflict management and dispute resolution options and on the means by which they can be integrated into legal practice, and
    2. such courses be mandatory in Canadian law schools and Bar admission course programs.
40. 1. All lawyers develop and implement a statement of client rights and responsibilities that identifies, in clear and concise language, the essential features of the service commitments made to clients, and
    2. such statements be made available in writing to clients.
41. All lawyers develop quality assurance programs and standards, specific to their practice circumstances, that identify for clients, clearly and concisely, the standards by which they can evaluate the legal services provided by their lawyers.
42. The CBA develop and promote a model statement of client rights and responsibilities, provide analysis and information for the establishment of quality assurance programs and standards, and develop model quality assurance programs and standards for the legal profession.
43. Lawyers, as a matter of standard practice and save only in unusual circumstances, make written disclosure to clients at or shortly after the outset of a retainer regarding
    1. the basis upon which the client will be billed,
    2. the billing methods to be used,
    3. where time and circumstances permit, the nature of the services to be provided,
    4. the estimated costs of such services, and
    5. the estimated time within which such services will be provided.
44. The CBA develop and promote guidelines for
    1. discussions by lawyers with clients concerning fees, and
    2. improved communication regarding fees.
45. Lawyers use a variety of billing methods in determining fees for legal services, with an emphasis on the value and timeliness of the results achieved, rather than time spent.
46. The CBA provide information to the profession on alternative billing methods for legal services.
47. The CBA take a leadership role in disseminating information to the profession about the integration of new technologies in legal practices.
48. The CBA develop a program to monitor, promote and publicize pro bono work carried out by lawyers and notaries.
49. 1. The CBA and the Canadian Council of Law Deans, the Canadian Association of Law Teacher and the Federation of Law Societies form a joint multi-disciplinary committee to consider and propose a comprehensive legal education plan to assist in civil justice reform for the twenty-first century, and
    2. the plan address the whole spectrum of service providers and the full range of educational opportunities.
50. 1. Law societies place greater emphasis in the future on the enforcement of competency standards, and
    2. in jurisdictions where legislative amendments are required to permit the vigorous enforcement of competency standards, such amendments be sought.
51. The Canadian Centre for Justice Statistics design a system and collect comparable national data on the management and performance of all civil courts with a view to identifying best practices.
52. An independent national organization on civil justice reform be created for the purposes of
    1. collecting in a systematic way information relating to the system for administering civil justice;
    2. carrying out in-depth research on matters affecting the operation of the civil justice system;
    3. promoting the sharing of information about the use of best practices
    4. functioning as a clearinghouse and library of information for the benefit of all persons in Canada concerned with civil justice reform;
    5. developing liaison with similar organizations in other countries to foster exchanges of information across national borders; and
    6. taking a leadership role on information provision concerning civil justice reform initiatives and developing effective means of exchanging this information.
53. The CBA take concrete steps to implement the national agenda for change set out in this Report and work in concert with others outside the Association to achieve civil justice reform.

This page is reproduced through the kind permission of the Canadian Bar Association

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