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Inventory of Reforms

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The Inventory of Reforms provides detailed information about the many reform initiatives in Canada. Entries pertain to changes in court procedures, legal aid, public legal education and related information programs.

Please direct questions about the Inventory of Reforms to communications@cfcj-fcjc.org 

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1950 Alberta Family Court Counsellors

Alberta

Alberta Justice - Family Justice Services

Provincial Court

The Family Justice Services Family Court Counsellor program was reviewed by Canadian Research Institute for Law and the Family as part of its evaluation of the Alberta Family Law Act (FLA), with results released in May 2009.

Alberta Justice program providing Provincial Court family law litigants with information, court assistance, and referrals to specialized services.

The Court Counsellor Service provides:

  • Information on options and services for resolving family issues
  • Referrals to services and programs including mediation
  • Information on the effects of separation and divorce on children
  • Help to negotiate agreements
  • Assistance with court applications such as: Parenting orders; Contact orders; Guardianship; Child contact, including grandparent contact; Enforcement of child contact or access orders
  • Assistance with arranging court dates
  • Assistance in presenting the case in Provincial Court.

Services are not yet available for Divorce Act matters and do not include legal advice.

The Family Court Intake Service was made available initially by the Child Services department in response to the negative impact of family break-ups on children. The program has evolved over the years to provide more legal help and proper referrals to more specialized services.

In July 2005, the "Intake and Caseflow Management Regulation" made intake sessions mandatory for self-represented litigants proceeding in Provincial Court.

Survey results and data from January 2004 to December 2007 for the program were analyzed and evaluated in the final report.

The Family Justice Services Family Court Counsellor program has also witnessed a noticeable increase in caseload. Family Court Counsellors [FCCs] perform a number of functions, including orientation and intake when a self-represented litigant is proceeding in Provincial Court, mediation, and in-court support. Family Court Counsellor intake and brief mediation are also potential points at which issues may be resolved and consent may be reached... A notable rise in intakes across the province occurred with the enactment of the FLA, followed by a steady increase to December 2007 - representing a 62% increase from January 2004. The Region, in particular, witnessed a substantial rise in intakes during this period, at 124%. This is likely due to the increasing number of family court locations across the Region where Family Court Counsellors have been introduced since the enactment of the FLA. Edmonton witnessed an 80% increase in intakes during this time, whereas Calgary, though peaking at an 85% increase in January to March 2007, had decreased below pre-FLA levels by December 2007. Despite this, overall provincial trends speak to the importance of Family Court Counsellors as both a dispute resolution mechanism and a support for self-represented litigants (Report at 38).

 
Survey respondents were very positive about the services provided by Family Court Counsellors... [A]lmost three-quarters (72.9%) thought the services improved the efficiency of the family law system, only 7.6% disagreed, and one-fifth (19.4%) were either unfamiliar with the service or had no opinion. Forty respondents made 44 comments, the most common (n=19) being that the service is excellent, and Family Court Counsellors provide access to accurate information and support (Report at 66)

 
Typically, the initial stage of entering into the court process involves completing an intake with a Family Justice Services (FJS) Family Court Counsellor... [A] majority of participants (87.9%) completed an intake with FJS. Approximately three-quarters (75.9%) of those participants indicated that FJS improved their understanding of the court procedures and the options available to them. When asked how FJS improved their understanding, participants commented that FJS provided useful information, provided mediation and support, and assistance with applications and documentation (Report at 96).

 
Family Justice Services Family Court Counsellors are integrated into a variety of stages within court processes and procedures. For SRLs who went to Provincial Court, a majority (82.6%) met with a FCC before their court appearance. During this stage, only 36.8% had the other party present when meeting with a FCC and 5.3% had the other party sometimes present for this discussion with the FCC. The majority of participants (68.4%) who met with a FCC before appearing in court found the discussion with the FCC helped them to better identify issues concerning their application(s). Most described positive experiences in how they were assisted and provided with information on court procedures...

During the Caseflow Conference (CFC), just over half (55.6%) of the participants recognized that a FCC was present in their CFC. A majority of these participants (80%) explained that the presence of the FCC was not helpful in the CFC as the FCC did not seem to be actively engaged in the discussions...

When appearing in Docket Court, 60% of the SRLs had the support of a FCC. All of these participants stated that the presence of the FCC was helpful because of the support that the FCC provided, the information given regarding court procedures, and in presenting the application(s) in front of the judge on their behalf (Report at 105, 107).

Permanent implementation

  • Alberta Justice
  • children
  • family law
  • legal services
  • litigants
  • Provincial Court of Alberta
  • education
  • Court assistance
1950 Established
1978 Mediation Program added
1990s Educational programs for parents added
2001 Transferred from Child Services to Alberta Justice
2005 Intake sessions made mandatory for self-represented litigants proceeding in Provincial Court
1971 Provincial Court of Alberta, Civil (Small Claims Court)

Alberta

Small claims court with a monetary jurisdiction of $25 000, employing pre-trial settlement conferences and mandatory mediation.

The Provincial Court of Alberta is a statutorily enacted Court intended to be an expeditious and inexpensive forum to access civil justice. Although the Court must apply established legal principles, it is not bound by the laws of evidence applicable to judicial proceedings and may admit any oral or written evidence that it, in its discretion, considers proper, whether admissible in other judicial proceedings or not, subject to claims of privilege under the law of evidence or any other evidence which is inadmissible by any other act. Accordingly, the procedural issues put before it are often determined according to principles of fairness or equity and not necessarily according to the strict rules of evidence as used in other courts. Litigants may be unrepresented, represented by agents, or by lawyers.

There are no formal Rules of Court governing the Court's procedure. The Act sets out most of the procedural requirements. Where the Act on regulations do not provide for specific practice or procedure, the Court may apply or modify the Alberta Rules of Court (Queen's Bench Rules) as needed. ...]

Hunt McDonald at 1.
  • Cases in the Court are heard by provincially appointed judges.
  • The monetary jurisdiction is $25 000.
  • Pre-trial conferences may be used to encourage parties to settle, or identify key issues if settlement is not achieved.
  • Cases may be referred to mandatory mediation sessions.

Permanent implementation

  • mandatory programs
  • mediation
  • Provincial Court of Alberta, Civil
  • settlement conferences
  • small claims court
1971 Modern Provincial Court established
2002 Most recent increase of monetary jurisdiction, to $25 000
1972 New Brunswick Court Social Worker Program

New Brunswick

New Brunswick Department of Justice

CSW's were evaluated as individual employees, with annual performance reviews. The Domestic Legal Aid program was evaluated in 1996, and was found to deliver services as intended. However, it was also found to be in need of better abuse assessment procedures, which were implemented in consultation with one of the evaluators.

New Brunswick Department of Justice program providing conciliation services in order to reduce conflict and minimize litigation.

For those who find themselves dealing with separation and divorce - whether before, during, or long after - Court Social Workers can provide counselling, information, and conciliation services for a wide range of issues, including parenting after separation, custody and access, child and spousal support, and division of simple and routine property and debts. They are also responsible for providing referrals for those who need, and are eligible for, the legal services of a Family Solicitor.

Court Social Workers can help people gain a better understanding of their situation and make plans for living apart that are fair, reasonable, and in the best interests of their children. Whenever appropriate, and if both parties are willing to participate in mediation, they can act as mediators to help the parties negotiate agreements that can then be made legal - thus making expensive legal action unnecessary. As mediators, they do not take sides. When mediation is not appropriate because of a history of abuse in the parties' relationship, they can offer other kinds of help that will not compromise a person's safety or security, such as special settlement services or a referral to a Family Solicitor for legal services (Webpage).

There were eight judicial districts where CSWs were located: Bathurst, Campbellton, Edmundston, Fredericton, Miramichi, Moncton, Saint John, and Woodstock. All CSW's were located in court services offices adjacent to courts. They also had private offices for interviewing clients for assessments. All were situated alongside other court services, for example Support Enforcement Services. Some had receptionist staff, but most did not. Clients were generally seen by appointment, but some walk-ins were accommodated. CSWs worked in partnership with the Domestic Legal Aid Family Solicitors who were also located nearby.

The CSW program was established to address the increase in clients seeking divorces. The program then shifted towards providing conciliation services in order to reduce conflict and minimize litigation.

After the creation of Unified Family Courts in 1982, the CSW program continued providing conciliation services in conjunction with the Court of Queen's Bench Family Division. In 1988, CSW's formally began offering family mediation services after funding for mediation training was provided by the Department of Justice. Eventually, the CSW program became a part of the Domestic Legal Aid Program, however, retained its separate funding and is a service provided to everyone (not just those who satisfy legal aid requirements). Furthermore, the breadth of services provided by CSW's was increased. Screening for domestic abuse situations was incorporated into the CSW program, and referral services addressing those issues were added. In 1996 onwards, extensive training in child support guidelines and calculation software (Childview) were incorporated. In 2001, paralegal type services were shifted away from CSW's to the solicitor assistants in legal aid.

In April 2009, the program was eliminated as part of budget cuts in the province. Prior to its elimination, CSW services resulted in 1300-1700 cases avoiding litigation.

Elimination of CSW Program
The program was eliminated in April of 2009, following the announcement of the provincial budget, as part of an attempt to reduce the budget by 5%. It is estimated cutting the program will save the province about $900,000.

Those seeking legal aid services related to marital separation and divorce matters will now have to apply directly to the Legal Aid Services Commission, without the assistance of a CSW.
 
Response to Elimination of CSW Program
"The elimination of this service goes against the international trend to invest in the social arm of family courts," said Elsie Hambrook [Chairperson of the Advisory Council on the Status of Women]. "The importance of favouring non-adversarial resolution of family disputes whenever possible is increasingly recognized. Mediation and the other services provided by the court social workers complement the judicial side of the court - they help people gain a better understanding of their situation and make plans for living apart that are in the best interests of their children, and often divert disputes from court hearings altogether. Some studies suggest issues settled by a couple through such means, not decided by a judge, "stay settled" longer."
"The court social workers offer a specialized service that is very valuable, especially to mothers facing separation. I fear that we will be reinventing this service in a few years, because it is a low-cost way to help families navigate and settle issues during the difficult time of a separation. This issue bears further study before the cuts go ahead" (ACSW).

 
The Liberal government's decision to eliminate court social workers will hurt the province's most vulnerable people, critics say...

Rosella Melanson, executive director of the Advisory Council on the Status of Women, said eliminating the program will end up costing the province in the long term. She said that, with the disappearance of court social workers, families will either live with unsolved issues, line up for legal aid or try to represent themselves in court, often without getting a result that is up to standard. "It's the elimination of the social arm of family court," said Melanson, who worked as a court social worker in the 1970s. "With the disappearance of court social workers, it seems that will reduce the non-adversarial settlement of these issues."

Elaine Bell, spokeswoman for the Department of Justice, said court social workers are not the only ones who provide mediation services. "More family lawyers are using a collaborative approach to resolving family law issues," she said in an email. "In all of the judicial districts formerly served by court social workers, other mediation services may also be found" (Telegraph).

Program Eliminated as of April 2009

  • alternative dispute resolution
  • New Brunswick Justice and Consumer Affairs
1972 Court Social Worker (CSW) Program established
1982 Unified Family Court established throughout New Brunswick
1988 CSW formally commenced mediation services
May 1993 CSW became central to the Domestic Legal Aid program
1996-1998 CSW's started to handle child support issues
April 2001 Paralegal work shifted to the family solicitor assistants, freeing up more time for CSW's to focus on mediation and referral services
March 2009 CSW program planned elimination announced in the provincial budget
April 2009 CSW program eliminated
1975 Manitoba Law Phone-In Program and Lawyer Referral Program

Manitoba

Community Legal Education Association (Manitoba) Inc.

Program providing general legal information (not advice), as well as referrals, over the phone in response to legal enquiries in Manitoba.

Serving Manitobans as well as callers from around the world since 1975, CLEA’s Law Phone-In & Lawyer Referral Program is an essential service, providing free legal information over the telephone to anyone who needs help. Many clients rely on the service as their emergency first-response team during a legal crisis. As a unified information and referral service, our program staff assesses callers’ needs, provides information and makes referrals to lawyers and law-related agencies where appropriate.
 
In 2010, the Program handled 6,885 calls. 59% of the callers were female, 74% originated from Winnipeg. Calls from outside Winnipeg came from 212 communities all around Manitoba. 244 came from other provinces and territories, 30 from 14 states in the United States and 43 came from around the world, many of them via email: Africa, Bermuda, China, El Salvador, Ghana, India, Italy, Jamaica, Kuwait, Mexico, Morocco, The Netherlands, Nigeria, Norway, Pakistan, Russia, Saudi Arabia, Sweden, Turkey, The United Kingdom, and United Arab Emirates. The legal issues in these international calls tended to be in the areas of Family Law, Wills and Estates and Immigration matters. Some of these callers were looking for a lawyer in Manitoba for a matter taking place in Manitoba.
In addition to telephone calls, the Program received 738 e-mails, 49 faxes, and 80 walk-in clients (even though we do not have the facilities to handle walk-in requests). Of completed calls, 38.9% of the calls were concerning Family Law, including divorce, separation, custody, access, grandparent access, adoption, guardianship, child support, spousal support, and various property issues. Also in this area of law, we received questions about domestic violence and protection orders. 12.1% of the calls were regarding Civil Law issues (including Small Claims Court). 10.6% of the calls dealt with Criminal Law (including Youth Law), 8.6% with Wills and Estates, and 5.3% were about Employment Law. The list at right shows the breakdown of calls by topic.
 
1,095 calls resulted in referrals to one of the 129 lawyers listed with the Lawyer Referral Service. Lawyers enrolled in the service have agreed to provide a free initial half-hour consultation to clients referred to them.
 
In 2010, our records indicate that we received referrals from 156 different sources: various individual contacts, lawyers and law firms, MLA’s and MP’s, community agencies, government departments, organizations, businesses, and as a result of being listed in various publications.
 
From Community Legal Education Association (Manitoba) 2010/2011 annual report

Law Phone-In was established in July 1975 as a 3-year experimental project funded by the Federal Department of Justice until March 1978. It is currently funded by the Law Society of Manitoba and The Manitoba Law Foundation, and operated by Community Legal Education Association (Manitoba) Inc.

Law Phone-In was established to meet a need for summary legal information and referrals, and to increase the accessibility of legal information.

Permanent Implementation

  • legal hotlines
  • public legal education and information
  • referrals
  • education
July 1975 Law Phone-In established
1979 Newfoundland and Labrador Small Claims Court

Newfoundland and Labrador

Small Claims Court, division of the Provincial Court

Overview of the Small Claims Court, the civil division of the Provincial Court.

The Court hears civil actions where the monetary value claimed does not exceed $5,000, the lowest limit in Canada. Prior to 2005, the monetary jurisdiction of the Court was $3,000.

The Court has jurisdiction over actions concerning debt, whether payable in money or otherwise, claims for damages, including damages for breach of contract and actions for unpaid municipal taxes. The Court has no jurisdiction over actions where

  • land title is brought into question;
  • validity of a devise, bequest, or limitation is disputed;
  • malicious prosecution, false imprisonment, defamation, criminal conversation, breach of promise of marriage;
  • action against a judge of a court, a justice or a public officer for anything done by such a person in the course of performing the duties of his or her office.
Actions are commenced in Small Claims Court by filing a Statement of Claim and paying the appropriate fee. A successful plaintiff will usually receive back the fee as part of the Court Costs as part of a judgment. In a Civil action, the burden of proof is on the plaintiff (claimant) to prove his or her case on a balance of probabilities. This is to be contrasted with a criminal case where the burden of proof is on the Crown to prove the case beyond a reasonable doubt.

Before the case is set for trial, our Rules require that the plaintiff and defendant attend a Settlement Conference to see if there is any hope of settling the case without the need for a trial. Even if the parties do not agree to a settlement, the conference is useful as it allows the parties to isolate the issues in question and potentially shorten the length of the trial.

The forms and procedures are designed to assist self represented litigants present their cases on their own. The cost of legal representation often exceeds the amount of a claim if a case goes to trial. Judges are cognizant of the fact that many self represented litigants are not familiar with legal rules and procedures and will make allowance within the limits of the law for these limitations. However neither the judge nor the court staff can offer legal advice to litigants.

At the conclusion of the case, the judge may deliver a decision from the Bench. Such decisions are called "oral" decisions. Alternatively, the judge may "reserve" the decision and file a written ruling at a later time. In such a case the judge usually sees the need to research a point of law. When the decision is filed the Court Clerk will notify the parties and each party will be given a copy of the decision.

A party who is dissatisfied with the result has the right to appeal to the Supreme Court of Newfoundland and Labrador (Trial Division) and Subsequently to the Court of Appeal and then if necessary with leave, to the Supreme Court of Canada.

 

The Provincial Court of Newfoundland and Labrador acts in the capacity of the Small Claims Court, established by the Small Claims Act.

Permanent implementation

  • Newfoundland and Labrador Small Claims Court
2005 Monetary jurisdiction of the Court increased from $3,000 to $5,000
1980 Nova Scotia Small Claims Court

Nova Scotia

Small Claims Court

Law Reform Commission of Nova Scotia conducted an evaluation of the Nova Scotia Small Claims Court to determine its effectiveness "at meeting its basic objective of providing quick, informal, and affordable access to justice" and "to illuminate any emergent areas of concern for possible legislative reform" (Evaluation Report at 27).

Overview of the Nova Scotia Small Claims Court.

There are 11 individual Small Claims Courts serving Nova Scotia. A number of courts serve two counties. Adjudicators, who are appointed, must be members in good standing of the Nova Scotia Barristers' Society. In almost all cases, hearings are held on weekday evenings, with special allowances for daytime hearings upon request... Adjudicators have a good deal of latitude in how they run the proceedings. Thus, there is a tendency toward relaxed procedural and evidentiary rules.

Evaluation Report at 23, 26
 

 

 

The Nova Scotia Small Claims Court has never required mediation. There was at some point in time a Small Claims Mediation Pilot Project, available on a voluntary basis, which was run by an organization called ADR Atlantic, but the project is now defunct.

The original cap on claims in the Nova Scotia Small Claims Court was set at $2,000, then it was increased to $3,000 in 1986, to $5,000 in 1992, to $10,000 in 1999, to $15,000 effective April 1, 2004, and most recently to $25,000 as of April 1, 2006...

There are no provisions for pretrial discovery or disclosure of documents.

Evaluation Report at 21, 25

The Nova Scotia Small Claims Court was established in 1980 by the Small Claims Court Act.

The original idea of the court was to aid self-represented litigants. "The objective was and is to create a court that would satisfy the following criteria: (1) accessibility; (2) low costs; (3) informality; (4) simplicity; (5) quick and efficient disposal of cases; and (6) fairness."

Evaluation Report at 21

The system is working quite well at meeting its legislative objective of providing rapid, informal, inexpensive access to justice. The data suggest a number of areas for future consideration and possible reform. There does seem to be one clear weakness in the current operation of the Nova Scotia Small Claims Court: enforcement of judgments. We recommend that lawmakers consider 1) careful evaluation and policy change toward improving enforcement of Nova Scotia Small Claims judgments, 2) careful evaluation and revision of the Nova Scotia Small Claims Court forms, 3) recording some of the more complex hearings, and 4) developing and implementing a comprehensive data collection plan regarding the Nova Scotia Small Claims Court.

Future research should evaluate the impact of recent legislative changes, particularly the shift to a $25,000 ceiling on allowable claims and the increase in allowable claims for general damages from $100 to $2,500. The Nova Scotia Supreme Court is in a state of transition and these changes must be carefully monitored. There is a distinct risk that these changes will strain the system to the point that rapid access to justice is no longer feasible. The Nova Scotia Small Claims Court now has one of the highest caps on small claims in all of North America. We urge caution, and careful empirical evaluation of the system as the full impact of these changes unfolds.

Evaluation Report at 102-103

Permanent implementation

  • Nova Scotia Small Claims Court
1980 Small Claims Court established
1986 Monetary jurisdiction of the Court increased to $3,000
1992 Monetary jurisdiction of the Court increased to $5,000
1999 Monetary jurisdiction of the Court increased to $10,000
2004 Monetary jurisdiction of the Court increased to $15,000
2005 Evaluation of the Small Claims Court initiated
2006 Monetary jurisdiction of the Court increased to $25,000
March 2009 Evaluation Report released
1983 BC Summary Trial (Rule 18A)

British Columbia

British Columbia Supreme Court

BC Supreme Court summary trial rule authorizing a judge in chambers to give judgment based on affidavits or similar evidence.

Rule 18A

A party brings their application by way of a Notice of Motion in the action. The application must be heard at least 45 days before the date set for trial if one has been set.

Although often referred to as "trial by affidavit", Rule 18A generally permits parties to adduce a variety of forms of evidence. In addition to affidavits, parties may rely on answers to interrogatories, discovery evidence, formal admissions, and statements of expert opinion provided that the statement appears in the proper form or, failing that, is ordered admissible by the court. The usual rules regarding the use of discovery transcripts and interrogatories apply in the summary trial context...

In some cases, the court might expand the scope of permissible evidence to include cross-examination on affidavits, either before the court or before another person. In other cases, a party may be precluded from obtaining one or more of the above forms of evidence because it left it too late in the day to do so. In some cases the court will order that the Rule 18A application proceed absent, for example, the examination for discovery of one party because the requesting party had ample time to conduct the discovery in advance of the hearing but opted not to do so.

Summary Trial at 3
 
Rule 18A has been interpreted by the courts to allow for summary trials and judgments in a broad range of circumstances. A judge should only decline to hear an application for a summary trial where he or she is unable to make critical findings of fact necessary for a determination of the issues and where cross-examination of the affidavits or other means of clarifying the evidence would not remedy this problem, or where it would be unjust to determine the issues raised in the application.

The chambers judge should consider the amount involved, the complexity of the matter, and any prejudice due to delay if the matter is set down for trial under the normal procedure, including the costs consequences of so ruling.

Discussion Paper at 4

Proposed Rule 9-8 (Summary Trial)

The proposed new Rules of Civil Procedure incorporate Rule 18A as Rule 9-8. A new major proposed change to the Rule is that parties may only apply to the court for judgment under this rule if they are authorized to do so by a case plan order.
 

Comparison to a conventional trial

Many of the differences between a summary trial and a full trial are also the advantages of a summary trial. Parties proceeding under Rule 18A can expect to secure an earlier hearing date than they would for a conventional trial simply because of shorter length of time required. The time, expense, and resources required will generally be far less in the summary process because of the shorter hearing, the absence of live witnesses, and often, the truncated discovery process.

Although bringing an 18A application does not operate to stay all pre-trial discovery procedures such as document production and examinations for discovery, the court retains discretion to order the postponement of an examination for discovery pending the hearing of an 18A application that has the potential to dispose of the claim or some part of it. However, the court will not do so where the discovery evidence might contradict the documentary evidence on which the moving party relies. Furthermore, because a summary trial application might only dispose of some of the issues between the parties, it should not be used to prevent the other party from presenting their larger case.

Other differences of note are that there are no juries in summary trials, and because there will generally be no viva voce evidence, parties may not subpoena witnesses. In terms of costs awards, the general rule is that where the applicant is unsuccessful and the matter is referred to the trial list, the costs of the application will be costs in the cause. However, where the summary trial court finds that there are exceptional circumstances, such as an application that could be described as frivolous, the court may award costs of the application against the unsuccessful applicant.

In B.C., summary trials proceed in chambers and counsel appear un-robed.

Summary Trial at 5-6

Rule 18A was introduced in British Columbia in 1983 in response to a concern that Rule 18, governing applications for summary judgment, was often found to be ineffective in that motions for judgment could easily be defeated. Introduction of Rule 18A was meant "to expedite early resolution of cases by authorizing a judge in chambers to give judgment in any case where he can decide disputed questions of fact on affidavits or by any of the other proceedings authorized by the rule unless it would be unjust to decide the issues in such a way" (Summary Disposition at 5).

To reduce unjust delays in the civil justice system, avoid unnecessary costs to the parties and reduce public distrust of the legal system.

In evaluating the rule, the British Columbia courts stated that the elusive and unattainable goal of perfect justice in every case could not always be assured even after a conventional trial and the safeguards furnished by the Rule and the common sense of the chambers judge were sufficient for the attainment of justice in any case likely to be found suitable for this procedure. Chambers judges were cautioned to be careful, but were encouraged not to be timid in using the Rule for the purpose for which it was intended.

Summary Disposition at 6
 
Of the proceedings commenced in the B.C. Supreme Court, approximately 1.4% are decided by full trial and approximately 1.2% are decided by summary trial. This has allowed British Columbia to not increase its number of trial judges in approximately 20 years. Rule 18A has proven to be an effective means of increasing access to justice, while reducing costs to litigants and to the judicial system.

Summary Trial at 2

Permanent Implementation

  • affidavit evidence
  • chambers hearings
  • rules of court
  • summary trials
  • Supreme Court of British Columbia
1983 Rule 18A introduced
July 2007 Draft Rules released
January 2010 Projected implementation of new rules
1984 Manitoba Justice Child and Family Services Division: Family Conciliation

Manitoba

Manitoba Justice Child and Family Services Division

Court of Queen's Bench (Family Division)

A series of evaluations were conducted on the effectiveness of various different programs: Case Management, Parent Education, and Mediation. Two evaluations were conducted on the Parent Education program and reports were produced with recommendations on how the program could be improved. The mediation program was also assessed.

Manitoba Justice service providing legal information, appropriate referrals, court ordered assessments, counselling, and mediation to family law litigants.

Services to separating/divorcing families are provided to Winnipeg, Eastman, Interlake and Central community areas through the office in Winnipeg and to Westman, Parkland, and northern regions through Rural and Northern Services, Community Services Delivery Division.

Family Conciliation's objective is achieved through the following activities:

  • administration of Family Conciliation services which provide social services support to the Family Division of the Court of Queen's Bench, including information/referral, court-ordered assessments including brief consultation, mediation, conciliation counselling, group programs, Grand Relations and the Parent Information Program;
  • development and monitoring of program policies and service standards across the Province;
  • provision of training, consultation, and leadership in the development of regional services; and
  • consultation with other agencies, professionals and the public.

2007/2008 Annual Report at 81

Services offered include:
  • Brief Consultation Service offers brief consultation for families and children in a shorter time frame, focusing on the input of children ages 11 to 17 in custody/access matters that affect them. Additional information is provided in a consultative format for issues related to time sharing, child developmental needs, parental communication, and other aspects of parenting plans for children of all ages.
  • Court-Ordered Assessments provide comprehensive family evaluations, professional opinions, and recommendations to the court concerning the best interests of children in custody, access, and guardianship matters. This process serves as a vehicle for the resolution of custody/access/ guardianship disputes by providing information that can be used in settlement meetings, lawyer negotiations, or litigation as circumstances warrant. It serves parents, children, lawyers, and the court by recommending courses of action and available resources that may reduce parental/family conflict, which is harmful to children.
  • Mediation is a structured, short-term intervention to assist families undergoing separation/divorce in developing a parenting plan, to maintain a continuing relationship among children, parents, and extended family, and to protect children from parental conflict. This is a preferred intervention for resolving custody/access conflicts. Parents may also choose to mediate financial issues arising from their separation regarding child support, spousal support, and division of marital property. This comprehensive co-mediation is offered in the Winnipeg Region, and on a pilot basis in the Eastman Region. It is called co-mediation because a lawyer mediator and a family relations counsellor are both involved in the process.
  • Conciliation Counselling is a short-term, separation-related counselling focused on parents‟ and childrens‟ adjustment to family reorganization after separation/divorce. Conciliation counselling is also often used for special situations where a quick response may be required or in services such as Intake and Grand Relations.
  • Information/Referral is an intake service. Individuals and families are assisted in addressing issues and identifying possible solutions, informed of community and government services that may be appropriate to their situation, and are referred accordingly. They are also assessed for mediation and other Family Conciliation services and provided with advice and referrals.
  • Parent Information Program, “For the Sake of the Children," educates and focuses parents on the needs of their children in the context of separation and divorce. It is designed to help all separating parents, and is an essential first step to mediation. The program is mandatory for all parties seeking custody of or access to children through the court, including grandparents, other family members and significant others.
  • Children's Therapeutic Group “Caught in the Middle”, assists children ages 8 to 12 who are experiencing trauma, loss, and family reorganization after their parents separate or divorce. This 10-week session is designed for children living in families experiencing severe parental conflict.

  • Just for Teens, is an information group for children ages 12 to 17 whose parents have separated. This group program is aimed at helping this age group to adjust to their parents‟ separation/divorce and deals with family changes, feelings and grief, legal questions, questions facing teens and how to survive the separation of their parents. Peer support is an important aspect of this service.

  • Grand Relations, a range of services for improving access between children and extended family or significant others. These services were developed in response to an amendment in The Child and Family Services Act , and includes the mandatory “For the Sake of the Children” parent information program; First Choice a pilot of an Early Neutral Evaluation service for families requiring a court-ordered assessment; and the Grandparent Advisor. Research was also undertaken to identify best practices/models of alternative dispute resolution services for Aboriginal people to explore options in the possible development of a made-in-Manitoba model.

    • Grandparent Advisor Service was established in December 2006. A Family Conciliation Counsellor is dedicated to provide direct service to grandparents who are seeking access with their grandchildren, as well as to facilitate a monthly support group to assist them through this process.

    • The First Choice Pilot Project provides a confidential hybrid service of assessment, mediation, and counselling to help parents or extended family members to resolve their custody and access issues without going to trial. The service utilizes gender balanced teams and includes the parties‟ lawyers in the process. The service involves two stages assessment and mediation. The parties are provided with a preview of what a court-ordered assessment would likely focus on if the case proceeded to court. The team makes recommendations regarding custody and access arrangements based on the best interests of the children. The service provides an opportunity to settle custody and access disputes outside of court using the input of legal counsel. First Choice became a confidential service midway through the year, based on a recommendation from the initial evaluation of the project in 2009/10. The piloted phase of this project ended on March 31, 2011, when First Choice gained permanent program status.

  • Staff presentations on children and divorce to community organizations, and participation in various community and government committees. Presentations by the Grandparent Advisor to grandparent groups and others interested in Grand Relations services.

2011/2012 Annual Report at 90-91

 

"The Family Conciliation program is delivered through the Department's Community Service Delivery Division, and is the social services component of the Court of Queen's Bench, Family Division. Policy responsibility for Family Conciliation rests with the Strategic Initiatives and Program Support Branch, Child and Family Services Division" (Annual Report 2007/2008 at 81).

The Family Conciliation Services emerged in 1984 when the Unified Family Court was created. Some of the Family Conciliation services were integrated with the Court of Queen's Bench Act which was amended that same year. Since then, various slight modifications have been made, but the service has largely maintained its present form.

A review of family law in Manitoba produced some recommendations which resulted in some changes to the mediation program. The mediation program was expanded with Federal funding through a pilot project. The program proved to fulfil an identified need for families, and the pilot became an ongoing service.

The For the Sake of the Children program was added to the FC service in 1995, and expanded in 1997 after an evaluation. In April 2005, a symposium was held where the judiciary along with the legal community recommended that the parent education program (For the Sake of the Children) become mandatory. This recommendation was implemented on May 15, 2007, and a corresponding amendment was made in the Queen's Bench Rules.

The objective of Family Conciliation Services "is to ensure the availability of a range of high-quality dispute resolution services to families disrupted by separation or divorce, and where ongoing parenting of the children is of primary concern" (2007/2008 Annual Report at 81).

It was found that Comprehensive Mediation resulted in 90% of cases being settled out of court. Regular mediation had a 65-85% success rate. The evaluation concluded that the success of comprehensive mediation can be attributed to the parties' willingness to cooperate and it usually takes place at an earlier stage in the divorce proceedings. In regular mediation, there are a wider variety of factors at play and the parties are often at various stages of their divorce, or have already divorced but are back again dealing with support, access, or custody issues.

As a result of the evaluations, the For the Sake of the Children was expanded from a 3 hour program to a 6 hour program and made mandatory. Furthermore, the Child and Family Services Act was amended to address the needs of grandparents and their grandchildren, and allow the court to order a wider range of custody and access solutions. Flowing from that, the Family Conciliation service programs have been modified to include grandparents and changes were accordingly made to the Court of Queen's Bench Rules on May 15, 2007.

Activities/Highlights in 2010/11
In 2010/11, Family Conciliation Services provided the following high quality services:

  • Information and referral 2,268 clients.
  • Parent Information Program – “For the Sake of the Children” – 6,652 clients.
  • Conciliation counselling services 5 clients.
  • Mediation services 380 families
  • Court-Ordered Assessments 186.
  • Brief Consultation Services 81 families.
  • Children‟s Therapeutic Groups – 26 children.
  • Grand Relations Services 37 families regarding access between grandparents and their grandchildren, 195 information calls, plus 20 regular attendees at the monthly Grandparent Support Group.
  • First Choice Pilot Project 83 families.

2011/2012 Annual Report at 91-92

Permanent Implementation

  • Court of Queen's Bench of Manitoba
  • family law
  • legal services
  • Manitoba Justice
  • mediation
1946 Amendment made to the Child Welfare Act which included a provision for five family counselors for the court
1968-1969 Family Conciliation Services transferred to the Department of Social Development
1984 Unified Family Court established and rule changes made to the Court of Queen's Bench Act dealing with procedures regarding the Family Conciliation Service
1985 Prince Edward Island Inquiry Line

Prince Edward Island

Community Legal Information Association of Prince Edward Island (CLIA PEI)

Toll-free phone line administered by CLIA PEI that provides legal information, referrals and support to individuals dealing with legal issues.

Inquiry Line is a toll-free phone line that provides legal information, referrals and support to individuals dealing with legal issues.

Legal information offered to callers relates to matters involving:

  • Divorce
  • Custody
  • Child support
  • Wills
  • Buying property
  • Consumer protection
  • Criminal law
  • Human rights
  • Powers of Attorney
  • Many other topics

Inquiry Line was established in 1985.

Permanent Implementation

  • legal hotlines
  • public legal education and information
  • referrals
1985 Inquiry Line established
1988 Manitoba Small Claims Court

Manitoba

Court of Queen's Bench

Overview of the Manitoba Small Claims Court.

1983 Review of the Small Claims Court
In March, 1983, the Manitoba Law Reform Commission conducted a review of the adjudication of small claims in the Province. A number of recommendations were made, including recommendations relating to

  • creation of a separate division for adjudication of small claims
  • expertise and powers of the adjudicators
  • monetary limit increase
  • restriction of the jurisdiction of the Court
  • establishment of a mediation programme
  • relaxation of application of the rules of evidence
  • review of the forms and information available to the public
  • increasing the public awareness of the Court

(First Review at 50-54).

In the fifteen years following the release of the First Review, several of the Commission's recommendations were implemented: "the jurisdiction of the Small Claims Court was increased from $1,000 to $3,000, and later to $5,000; its jurisdiction was restricted by excluding certain types of actions; the rules of evidence were expressly relaxed; and costs awards were strictly limited" (Second Review at 1).
 
1998 Review of the Small Claims Court
In March 1998, the Manitoba Law Reform Commission released the results of its review of the Small Claims Court, making 15 recommendations, including recommendations related to:

  • expertise and powers of the hearing officers
  • monetary limit increase
  • implementation of a mediation programme
  • expert reports

(Second Review at 51-52).

No major revisions to the Rules or the Act, apart form the increase in the monitory limits, have taken place since the release of the Second Review.

Monetary Jurisdiction Increases

  • On September 1, 1989, the monetary jurisdiction was raised from $3,000 to $5,000
  • On January 1, 1992, the provision for general damages in an amount not exceeding $1,000 was introduced
  • On July 14, 1999, the monetary jurisdiction was raised from $5,000 to $7,500, and general damages limit was raised from $1,000 to $1,500
  • On February 12, 2007, the monetary jurisdiction was raised from $7,500 to $10,000, and general damages limit was raised from $1,500 to $2,000

A province-wide small claim system was put in place in Manitoba in 1972 through Part II of The County Courts Act. The monetary jurisdiction at the time was set at $1,000.

Currently, the Small Claims Court is a division of Court of Queen's Bench governed by The Court of Queen's Bench Small Claims Practices Act.

To provide for the determination of claims in a simple manner as expeditious, informal and inexpensive as possible commensurate with the matters at issue in each claim.

Permanent Implementation

  • Manitoba Small Claims Court
September 1989 Monetary jurisdiction of the Court increased from $3,000 to $5,000
March 1983 Results of the First Review of the Small Claims Court released
January 1989 Provision for general damages in an amount not exceeding $1,000 added
March 1998 Results of the Second Review of the Small Claims Court released
July 1999 Monetary jurisdiction of the Court increased from $5,000 to $7,500
July 1999 General damages limit increased from $1,000 to $1,500
February 2007 Monetary jurisdiction of the Court increased from $7,5000 to $10,000
February 2007 General damages limit increased from $1,500 to $2,000
1989 Manitoba Summary Judgment and Expedited Trial (Rule 20)

Manitoba

Court of Queen's Bench of Manitoba

Queen's Bench rule of court in allowing parties to apply for summary judgment where there is no issue to be tried, or for a trial to proceed in an expedited manner.

Manitoba Rule 20 has been interpreted to be given a wide scope by Manitoba Courts. An application under Rule 20 requires that the person moving for summary judgment must establish with evidence a prima facie case for the entering of summary judgment. Once the moving party raises a prima facie case for the relief sought, the responding party then has an obligation to satisfy the court that there is an issue which requires determination at trial. This must be a triable issue which realistically could result in a judgment in the responding party's favour; there must be sufficient evidence on the record to enable the court to conclude that that party has a "real chance" of success.

The court may draw inferences and may look at the overall strength of the plaintiff's action. However, genuine or real issues of credibility (i.e. those which must be determined in order to decide the case), creating real conflicts in the evidence, require determination at a trial based upon viva voce evidence and assessments of credibility by a trial judge (Discussion Paper at 3-4).

  • Motions for summary judgment may be made by either the plaintiff or the defendant (r. 20.01(1)-(3)).
  • The Court may decide points of law on a motion (r. 20.03(3)).
  • While Rule 20 makes no mention of discovery evidence, Rule 39, Evidence on Motions and Applications, specifically provides that such evidence is admissible on any motion.
  • The Court grants summary judgment in cases where there is no genuine issue for trial or where the issues is one of amount or law only (r. 20.03(1)-(3)).
  • The Court may grant summary judgment even if a "genuine issue" is present unless the Court is unable "on the whole of the evidence...to find the facts necessary" or the Court considers that "it would be unjust to decide the issues" (r.20.03(4)).
  • The major difference between a motion for judgment by summary trial (r. 20.03(4)) and a motion for summary judgment (r. 20.03(1)) is that a moving party's failure on the former would preclude that party from proceeding to trial on the matters that were at issue, whereas failure on the latter will not lead to such a preclusion.
  • Where a request for summary judgment is granted in part or refused, a judge may order the action to proceed to trial in an expedited manner (r. 20.03(5))
  • An expedited trial of an action or of some particular issue may be ordered by the judge without an application for summary judgment on a specific motion (r. 20.06).

Rule 20 governing Summary Judgment and Expedited Trial in Manitoba is part of the revised Queen's Bench Rules introduced in 1989. It replaced former Rules 45 and 48 that allowed the plaintiff (but not the defendant) to apply for summary judgment in a restricted range of cases. These former rules tended to be applied very narrowly and a point of law could not be decided on such a motion.

"[T]o secure the just, most expeditious and least expensive determination of every civil proceeding on its merits" (r. 1.04(1)).

Permanent Implementation

  • expedited litigation
  • summary judgments
  • delay
1989     Rule 20 came into force
1990 Ontario Small Claims Court

Ontario

Small Claims Court

In 2006, the Ministry of the Attorney General requested that Ian Holloway, Dean of the Faculty of Law at the University of Western Ontario, conduct a review of certain issues regarding Small Claims Court. He was asked to include a consideration of key issues such as options for the structure of the Small Claims Court, different adjudicative models, options relating to small claims adjudicators, and jurisdiction of the court, including monetary jurisdiction.

The review was to take into consideration the following principles: the summary nature of the Small Claims Court as provided for in the Courts of Justice Act; a recognition that litigants before the court may be represented or self-represented; and the importance of the commitment of the Ministry to access to justice.

Review

Overview of the Ontario Small Claims Court.

The Small Claims Court is the busiest civil court in Ontario. In 2007/2008, Small Claims Court claims (63,633 new cases) comprised 43% of all civil cases commenced. However, this is a 15.5% decline from the number of cases filed in 2005/2006. (2007/08 Annual Report at 33).

The procedures of the Court are straightforward, making it hospitable to self-represented litigants. An action is governed by twenty-one rules from commencement to trial and enforcement. The quantum of costs that may be recovered by a successful party are generally limited to 15% of the value of the claim. (Civil Justice Reform Project at 15).

 

Monetary Jurisdiction Changes

  • In September 1993, the jurisdiction of the court increased to $6,000
  • On April 1, 2001, the jurisdiction of the court increased from $6,000 to its current level of $10,000.

2006 Amendments and Initiatives

In October 2003, the Small Claims Court Rules Subcommittee of the Civil Rules Committee released a consultation paper and draft rules which, among other things, considered implementation of province-wide mandatory settlement conferences and automatic dismissal timelines. The Subcommittee submited its final proposal for new Small Claims Court Rules to the Civil Rules Committee in 2005 and in 2006 significant revisions were made to the Rules of the Small Claims Court.
 

In 2006/07, the amended Rules of the Small Claims Court were implemented province-wide. The amendments include mandatory settlement conferences and automatic dismissal timelines. In addition to the new rules, a number of important initiatives have been implemented to increase access to justice in the Small Claims Court.

Small Claims Court forms were redesigned in a more user-friendly fill-in-the-blank style and further simplified with new instructions and warnings for litigants.

The range of self-help materials available to litigants has been expanded. Eight new user-friendly procedural guides were developed and are available at court offices or online. Automated telephone information systems were introduced in ten high volume Small Claims Court locations throughout the province. Using this new system, callers may choose from a menu of options to hear general information such as court addresses, fax numbers and hours of operation, as well as basic information about bringing or defending a claim in Small Claims Court.

2006/07 Annual Report at 36
 

2010 Proposed Changes

On June 28, 2006, the Civil Justice Reform Project was initiated to formulate options to reform the civil justice system in Ontario to make it more accessible and affordable. Recommendations for action contained in the November 2007 Report, included suggestions for reforming the Small Claims Court.

On December 11, 2008, the Ontario Ministry of the Attorney General announced that it would adopt some of the recommendations from the Civil Justice Reform Project report effective January 1, 2010. The monetary jurisdiction of the Small Claims Court will increase from $10,000 to $25,000. No amendments to the Rules of the Small Claims Court or the structure of the Court have been announced.

Prior to 1990, jurisdiction over small claims was shifted back and forth between the inferior and superior courts in the province. Currently, the Small Claims Court, established by the Ontario Courts of Justice Act, is a distinct branch of the Superior Court of Justice. 

Small Claims Court improves access to justice by allowing ordinary citizens as well as businesses to resolve legal disputes quickly and less expensively.

The Holloway report has been submitted and is now under review by the Ministry.

Permanent Implementation

  • Ontario Small Claims Court
1990 Small Claims Court established as a branch of the former Ontario Court (General Division)
1993 Monetary jurisdiction of the Small Claims Court increased to $6,000
April 1999 Superior Court of Justice created, replacing the Ontario Court (General Division)
April 2001 Monetary jurisdiction of the Small Claims Court increased from $6,000 to $10,000
June 2006 Civil Justice Reform Project initiated
July 2006 Mandatory settlement conferences and automatic dismissal timelines implemented
November 2007 Summary of findings and recommendations of the Civil Justice Reform Project released
December 2008 Changes to the Small Claims Court announced
1 January 2010 Changes come into effect
1991 BC Small Claims Court Reforms

British Columbia

Attorney General

Small Claims Court (Provincial Court, Civil Division)

Legislative changes to BC's Small Claims Court.

Main Aspects of 1991 Reforms

  • the jurisdiction of the court was raised from $3,000 to $10,000;
  • plain language forms were introduced;
  • mandatory settlement conferences were introduced for disputed claims;
  • enforcement procedures were streamlined (Review at 519)

2005 Initiatives
Effective Sept. 1, 2005, a regulation was brought into force increasing the monetary jurisdiction of the court from $10,000 to $25,000. The monetary jurisdiction had been set at $10,000 since 1991. This increase allows people to take advantage of the low cost and simple procedure available in Small Claims Court.

Also effective Sept. 1, 2005, the Crown Proceeding Act was amended to remove the barrier to suing the government in Small Claims Court. Previously, people wanting to make claims against the government were forced to use the more costly and complex process in the Supreme Court.

Small Claims Reform

Notable Highlights of the Small Claims Act

  • Evidence: the Court may admit as evidence any oral or written testimony, record or other thing that the court considers is credible or trustworthy and is relevant to the matter being heard, even though the testimony, record or other thing is not admissible as evidence in any other court under the laws of evidence. (s.16)
  • Claims the court may hear: the Court has jurisdiction in a claim for (a) debt or damages, (b) recovery of personal property, (c) specific performance of an agreement relating to personal property or services, or (d) relief from opposing claims to personal property. However, the Court does not have jurisdiction in a claim for libel, slander or malicious prosecution. (s.3)

A branch of the Provincial Court, the Small Claims Court is established by ss.2 and 3 of the new Small Claims Act, which came into force on February 25, 1991 and replaced the previously existing Act. The Small Claims Act was amended by the Justice Modernization Statutes Amendment Act, 2004 to allow the monetary jurisdiction of the court to be set by regulation, to a maximum of $50,000.

The 1991 "new small claims court program [was] intended to respond to concerns identified in relation to the delay, cost, complexity of existing procedures, problems of enforcement of judgments and problems of rural access" (Review at 518 to 519).

The 2005 initiatives were put into place to "help modernize the province's civil justice system and improve access to justice" and to address the issue of proportionality (Small Claims Reform).

Results of Evaluation of 1991 Reforms

  • 41% more claims filed, with the increase in volume entirely within the $3,000 to $10,000 range
  • additional claims reflected an increase in demand and not merely a transfer of business from higher courts
  • no major changes in the composition of the caseload
  • default judgments declined
  • there was a 13% increase in the number of replies (possibly due to plain language forms)
  • the mandatory pre-settlement conference achieved a large number of settlements
  • the settlement conference reduced the number of trials held from 24% to 8% (Review at 519 to 520)

2005 Initiative
In 2007, Associate Chief Justice Dennis Schmidt of the B. C. Provincial Court speaking regarding the the caseload of the Small Claims Court after the 2005 initiative said that "not much happened". He stated that while "We anticipated there would be a real inflow of cases but, as it turned out, there's been no increase in volume". As an explanation, he suggests "that before 2005, people were reducing their claims to keep within the court's monetary jurisdiction and have since been filing claims that reflect more accurately the amount at stake." (Small Claims Hit the Big Time).
 

Permanent Implementation

  • British Columbia Small Claims Court
  • legislation
  • reform
February 1991 New Small Claims Act came into force
September 2005 Monetary jurisdiction of the court increased from $10,000 to $25,000
1992 BC Child Protection Mediation Program

British Columbia

  • Ministry of Children and Family Development - Child and Family Development Division
  • Ministry of Attorney General - Dispute Resolution Office

No evaluations have yet been conducted, however, the Dispute Resolution Office has made it a priority to develop a system of evaluation.

BC Ministry of Attorney General program offering mediation for litigants in child protection cases to save time and reduce the number of cases going to contested protection hearings.

The Child Protection Mediation Program is administered by the Dispute Resolution Office (DRO) and the Ministry of Children and Family Development Child and Family Development Division (MCFD).

The CPMD is based on Section 22 of the Child, Family and Community Service Act (CFCSA) (also known as "section 22 mediation"). Section 22 reads:

If a director and any person are unable to resolve an issue relating to the child or a plan of care, the director and the person may agree to mediation or other alternative dispute resolution mechanisms as a means of resolving the issue.

Parents and the director can choose to use mediation when there is a disagreement regarding the care of a child. It can be used to resolve a number of issues, including:

  • selecting what services will be needed as part of the plan of care;
  • the length of time the child will be in the director's care;
  • the amount and form of access the parent or others have with the child;
  • the specific terms of a supervision or access order; or
  • other matters relating to the care or welfare of a child.

Mediation is an option that may be tried any time when MCFD is involved with a family under the CFCSA, even before a child is removed or after a hearing. A judge may suggest parties try mediation or any of the parties can request an adjournment to the court proceedings so mediation can occur. Section 23 of the CFCSA provides that if the proceedings are adjourned for mediation, any time limit applicable to the proceeding is suspended.

Any of the parties can ask the other parties to participate in mediation. The suggestion can come from counsel, from a child protection team worker, from the child's parents or members of the child's extended family. The child can also request the appointment of a mediator. However, all parties must agree to participate in order for the mediation to proceed. Judges considering a matter under the CFCSA may also suggest the parties try mediation. Mediators are selected from the Child Protection Mediation Roster.

Following in the footsteps of a number of other North American jurisdictions that have turned to mediation, a child protection mediation pilot project was conducted in Victoria, BC for one year (April 1, 1992 - March 31, 1993). Twenty families were referred to the pilot project. An evaluation was conducted which found the pilot project to be successful and recommended its expansion.

The Ministry of Children and Family Development Child and Family Development Division (MCFD) and the Ministry of Attorney General Dispute Resolution Office (DRO) established the Child Protection Mediation Program in October 1997.

An offshoot of the program titled Facilitated Planning Meeting was commenced as a pilot project at the Surrey courts. The Surrey pilot was completed in 2003, and facilitated planning meetings are now offered as a mediation option in most areas of the Fraser region.

One of the main purposes behind the Child Protection Mediation Program was to save time in child protection cases and reduce the number of cases that went to contested protection hearings. Mediation was seen as a tool by which to achieve more effective decisions that are responsive to the needs of children as opposed to the traditional adversarial process.

Permanent implementation

  • British Columbia Ministry of Attorney General
  • children
  • family law
  • litigants
  • mediation
1992 - 1993 Child protection mediation piloted in Victoria
October 1997 Child Protection Mediation Program established
June 2001 - August 2002 Facilitated Planning Meeting Project pilot program in Surrey
1993 BC Small Claims Court Settlement Conference (Rule 7)

British Columbia

Small Claims Court

Small Claims Court Rule of Court introducing mandatory settlement/trial conferences.

Settlement conferences are mandatory in all non-pilot project registries, for all cases except motor vehicle accident cases in which only liability for property damage is disputed (Rule 7(2))...

Typically, a settlement/trial conference is scheduled for half an hour before a judge in a conference room at the courthouse. The judge at the settlement/trial conference will not be the judge at trial, if a trial is necessary.

At the settlement/trial conference, the parties will sit at a table with a judge. The judge will say a few words and ask each party to give a brief summary of their case. The judge may then lead both the claimant and defendant into a discussion on what, if anything, the parties can agree on. If the parties agree on the final result, the judge will make the order. However, the parties may agree on some issues and leave issues in dispute to be resolved at trial. The judge will assess how much time is required for trial (Small Claims at 28-29).

  • All parties, with or without legal representation, must attend the settlement conference (r. 7(4)).
  • Each party must bring all relevant documents and reports to a settlement conference (r. 7(5)), whether the party intends to use them at trial or not.
  • The judge has wide powers to: mediate any disputed issues; decide on any issues that do not require evidence; make a payment order or other appropriate order in the terms agreed to by the parties; set a trial date, if necessary; discuss evidence requirements and trial procedures if a trial is necessary; order production of documents; dismiss a claim, counterclaim, reply, or third party notice if it is determined to be without reasonable grounds, or it discloses no triable issue, or it is frivolous or an abuse of the court's process (r. 7(14)).

The purpose of a Settlement Conference is to encourage the litigants to settle the lawsuit and avoid the time and cost of a trial.

Permanent implementation

  • British Columbia Small Claims Court
  • case conferences
  • mandatory programs
  • reform
  • rules of court
  • settlement conferences
1993 Rule 7 came into effect
1993 Tax Court Status Hearings (Rule 125)

Federal

Tax Court of Canada Rules Committee

Tax Court of Canada

The hearing is conducted to set dates for the completion of the remaining steps in the appeal and discuss any issues pertaining to the appeal.

If an appeal has not been set down for hearing or terminated within four months after the filing of the reply, the Registry send a letter to the parties requiring them to establish a schedule. Parties are expected to establish and submit this schedule within the time frame indicated in the letter. If the established schedule is acceptable to the Court, it will issue an Order confirming those dates and no status hearing will be required. If no schedule is established within the required time frame, a status hearing will be ordered.

Status hearings are conducted via telephone conference call unless directed otherwise by the Court. At the status hearing, parties must be prepared to discuss any matter pertaining to the appeal including steps remaining to be completed prior to trial.

The judge presiding over the status hearing will set dates for the completion of the remaining steps in the appeal, including the exchange of lists of documents, the completion of discoveries and undertakings, a deadline for the parties to inform the Hearings Coordinator whether the case will settle, whether case management or a pre-hearing conference is required, or if a hearing date should be set.

Parties may avoid going to a status hearing if undertakings for discovery and other appeal steps have already been taken, and they file for a hearing a date. If these steps are taken prior to the date of the status hearing, the status hearing will be cancelled.

The purpose of the status hearing is to facilitate the resolution of matters before the Tax Court to decrease the cost of litigation.

Permanent implementation

  • appeals
  • case conferences
  • pre-trial procedure
  • Tax Court of Canada
1993 Rule 125 introduced
1995, 1999, 2004, 2010 Amendments made

 

1994 Manitoba Judicially Assisted Dispute Resolution (JADR)

Manitoba

Court of Queen's Bench

Court of Queen's Bench

Judge mediated resolution of legal disputes in Manitoba Court of Queen's Bench.

The Manitoba Court of Queen's Bench, unlike many other courts in Canada, has not introduced formalized mediation rules or mandatory mediation rules. In fact, the process is completely devoid of any rules. The rationale of the Manitoba courts for the process without rules is that the existing civil litigation rules created the complexities of litigation; therefore, the court rules committee did not want to create more rules to ameliorate the mischief crated by the original complex civil litigation rules.

The JADR process is not contained in the Manitoba Court of Queen's Bench Rules. It would appear that the relative freedom from the formal process gives Manitoba's JADR process its strength. Parties are free to fashion their own process. The parties, in conjunction with a Court of Queen's Bench judge, set out the terms and requirements of the JADR proceedings.

One of the advantages of JADR is that the parties can choose the judge they want to mediate the matter. A list of three or four potential JADR judges is jointly prepared by counsel. Counsel may, if they want, specify order of preference. The lawyers send a joint letter to the Chief Justice or Associate Chief Justice of the Court of Queen's Bench, advising the court of their selection and order of preference. Although any judge of the Manitoba Court of Queen's Bench may be named as a potential JADR judge, the assignment of the JADR judge is in the discretion of the court. If the proposed judges are unavailable, due to other commitments, you may have to submit a revised list (MB ADR Report at 4-5).

 
JADR involves the judge meeting with the parties and their counsel in a case conference. Every case conference has a settlement component - the judge will discuss and offer various methods for dispute resolution, including early neutral evaluation and mini-trials.

Most JADR case conferences in Winnipeg occur at the Law Courts Building, but can take place outside the courthouse. Fulham says, "At some point in the process is a time for each party to discuss and contemplate settlement options, so don't be surprised to see a JADR judge lingering in the hall outside the courtrooms in which the JADR is ongoing!" Of course, the JADR process is confidential and no public access is permitted (2002 Report).

Judicially Assisted Dispute Resolution (JADR) at the Manitoba Court of Queen's Bench has been available since 1994. Participation in JADR is voluntary and informal, subject only to the requirements that the JADR conference be requested jointly by counsel for the parties and that names of at least three members of the court be agreed upon and submitted. Attendance at a pre-conference meeting with the judge is also required to schedule a conference.

In 2009, the Manitoba Alternative Dispute Resolution Section examined the JADR process and found that:
 
In reviewing Statements of Claim filed in comparison to the number of trials heard, only 2% to 3% of the claims filed actually proceed to trial. The remaining 97% to 98% of the Statements of Claim filed are settled, discontinued or abandoned. In regard to the Statements of Claim set down for trial, only 23% to 32% of the cases actually proceed to trial. For JADR cases set down, 81% to 84% of the cases proceed. The settlement rate is unknown, as the Court of Queen's Bench does not maintain any statistics in this area. Anecdotal information would indicate that the JADR settlement rate in Manitoba is in the range of 85% to 95%, depending on the information source. Even without verifiable data, it is evident that the JADR process has been an immense success. Presently, in Manitoba, more cases are set down for JADR than for trial. Civil litigation matters are three to four times more likely to proceed to JADR than to trial (MB ADR Report at 5).

 

Permanent Implementation

  • judicial dispute resolution
  • Manitoba Courts

December 1997     JADR initiated

1995 Saskatchewan Queen's Bench Mandatory Mediation

Saskatchewan

Saskatchewan Ministry of Justice and Attorney General's Dispute Resolution Office

Court of Queen's Bench - Civil

An extensive study of the Mandatory Mediation Program using qualitative and quantitative measures was undertaken in 2003, Learning from Experience. The goals of the study were:

  • To evaluate how far the mediation program in the Queens' Bench meets the needs of the people of Saskatchewan (focusing on discussions with client users);
  • To assess the impact of the mandatory mediation program on civil litigation practice in Saskatchewan (focusing on discussions with members of the Bar);
  • To determine the efficiency of the Queen's Bench program (from available program statistics).

 

Mandatory mediation in non-family civil actions which takes place after the filing of pleadings and prior to any other steps in the litigation.

Section 54.2 relates to civil mediation. After the close of pleadings in a contested action or matter that is not a family law proceeding, the local Registrar arranges for a mediation session, and the parties attend the mediation session before taking any further step in the action or matter. These sessions must occur after the close of pleadings and before any other step in the proceedings. Experienced mediators are utilized. Since the initiation of the program, there has been a gradual increase over the years in the per cent cases resolved through civil mediation. In 2007-2008, 53% of civil cases were resolved following mandatory civil mediation (Annual Report at 26).

A 1994 amendment to Saskatchewan's The Queen's Bench Act introduced an initial mediation session in two centres on a pilot basis, at the close of pleadings in every non-family, civil litigation action. The pilot moved to program status in September 1997 with expansion to the one of busiest judicial centres in the province. The program continues to expand and currently captures approximately 80% of all non-family civil litigation actions commenced in the province.

Recommendation 1 of the CBA Systems of Civil Justice Task Force was that every jurisdiction "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."

The evaluation data, both qualitative and quantitative, which has been collected and analyzed for this study illuminates the operation of the Saskatchewan Queen's Bench mediation program and gives voice to the experiences of program users. It provides a detailed picture of the relationship between lawyers, their clients, the mediators and the structure and design of the present program.

The Saskatchewan Queen's Bench mediation program is perceived by almost all the individuals we consulted as appropriate, and its objectives - the faster and more satisfactory reaching of settlement in some civil matters - fully achievable. It became rapidly apparent that the question that respondents were most interested in discussing with us was not whether the program should be maintained, but how it might be improved in order to better achieve those objectives.

The consensus that emerges is that the program is reaching its goals in many individual cases, but not in others. While there is widespread support for both its universal nature and the present timing of mediation, many respondents called for greater flexibility in relation to both aspects of program design. In addition, there is an interest in rethinking the role of the mediator to clarify and perhaps sharpen this point of intervention with greater proactivity, and perhaps some type of enlarged role before and after mediation in certain cases.

There are also a few clear problems with the design of the present program. One is that some cases proceed to mediation with insufficient preparation, perhaps with little or no exchange of materials in advance of mediation, and just occasionally, an absence of "good faith" to negotiate. Another issue (perhaps related to this) is the somewhat uninformed approach of a small number of members of the Bar in regard to the role they might most effectively adopt in the mediation process. Each of these problems is resulting in some disappointment among clients, and some frustration among some members of the Bar (Learning from Experience at 6).

 
Following the evaluation in 2003 there was a further round of discussions with the legal community and legislative amendments responding to the recommendations in the report occurred in 2004. The amendments to The Queen's Bench Act provided flexibility for the Director to postpone the mediation session until after the parties have exchanged documents. This provided greater flexibility in the timing of the mediation session. In situations where documents are crucial to a party's case or a more productive mediation will occur after exchange of documents the Director may grant a postpone to allow for this exchange to occur.

Other amendments clarified the authority of the Director of the Dispute Resolution Office to grant exemptions and postponements and granted the court the ability to award costs against a party that does not comply with the mediation requirement.

Permanent implementation

  • mandatory programs
  • mediation
  • Saskatchewan Court of Queen's Bench
1995 Pilot project implemented in two centres
2003 Formal evaluation
2005 Reform instituted in major judicial centres

 

1995 Yukon Small Claims Court

Yukon

Small Claims Court

At the beginning of 2008, the Yukon government began the consultation process on amending regulations to the Small Claims Court Act in order to modernize the small claims court process.

Overview of the Yukon Small Claims Court.

The Small Claims Court hears civil cases in which the amount of money or the value of personal property being claimed is $25,000 or less. It does not have jurisdiction over actions concerning land, actions against a personal representative of a deceased person, or actions for libel or slander...

The Small Claims Court sits in the same locations as the Territorial Court and can hear cases as part of court circuits to the communities. Every judge of the Territorial Court is a judge of the Small Claims Court.

Website

Highlights:

  • Any matter set for trial must go to a pre-trial conference
  • Since 1995, parties to small claims matters have been encouraged to take part in mediation of their disputes. The process has evolved over the years so that mediation can actually take place as part of the pre-trial conference rather than having to adjourn the process to a later date in order for mediation to occur.
  • Discovery is not permitted, unless the court deems it necessary in the interests of justice

 

 

2006 Amendments

The Small Claims Court Act was amended effective April 1, 2006:

  • the monetary jurisdiction was raised from $5,000 to $25,000
  • the appeals process was updated
  • a process was set in place to move matters to Supreme Court if the amount was likely to go higher than the new limit

The Small Claims Court of the Yukon is established by the Small Claims Court Act.

It is proposed that the amended regulations will be finalized in the Fall of 2009.

Permanent implementation

  • Yukon Small Claims Court
April 1, 2006 Monetary jurisdiction of the Court increased from $5,000 to $25,000
2008 Consultation on the proposed amendments to regulations of theSmall Claims Act began
1996 Manitoba Case Management of Family Matters (Rule 70)

Manitoba

Court of Queen's Bench Statutory Rules Committee

Court of Queen's Bench

Queen's Bench rule of court designed to reduce unnecessary delay and expense by promoting early and fair settlements in family litigation.

Rule 70.24(10), which outlines circumstances triggering a case conference, was amended in 2005 to remove the triggering mechanisms of an answer and the 90-day expiry date. Under the current rules, the process commences with the courts monitoring a case once a Petition or Notice of Application is filed to start the legal separation process. If a Notice of Motion is filed requesting immediate resolution of an issue and a court date is requested, a case conference between the parties and a judge is automatically scheduled. A case conference can also be scheduled at the request of either party. A 200-day time limit was introduced in the 2002 rules. If no proceedings occur after 200 days from the filing of the originating process, then the registrar will send out a notice of dismissal. The parties then have 30 days to proceed, otherwise the proceeding will be dismissed. The purpose of these time limits is to ensure that case conferences are scheduled and held on a regular basis to move the proceedings along. At a case management conference a Case Management Information Statement must be filed stating what issues have been resolved and what have not. All issues may be resolved at a case conference, or the judge may:

  • request further information
  • refer the parties to mediation
  • refer the parties to a parent education program
  • schedule another case conference

The same judge assigned to a case may continue to work on it until all the issues are resolved or until it is decided the case must go to trial. A case management judge will not oversee the contested hearing unless all parties agree. For cases that do not qualify for case management either because they commence outside of Winnipeg, or began before November 1, 2002 then pre-trial conferences in accordance with Rule 70.26 are to be held.

Rule 70 Case Management originated as a pilot projected initiated in Winnipeg in November 1995. The pilot experimented with the new case management rules by randomly selecting cases. In 1998, an evaluation was conducted of the pilot project in which it was found to be successful, and the report recommended it be extended. The project was expanded first to 20 percent of cases, and later to all Family Division cases.

In 2004, the Family Division Case Management Evaluation was conducted by Prairie Research Associates Inc. Their research indicated that the case management program was a success, however, it was subjecting the system to some added pressure. They recommended alleviating the burden on the judiciary and court staff by modifying the rules to limit their application to certain cases. The essential gist of the 2005 amendments was to alter Rule 70.24 by making the case management system somewhat less mandatory but still discourage undue delay by an automatic 200-day time limit.

The Manitoba Case Management program was designed to reduce unnecessary delay and expense by promoting early and fair settlements.

Permanent implementation

  • cost of justice
  • Court of Queen's Bench of Manitoba
  • delay
  • family law
  • rules of court
  • settlement
November 1995 Introduced as a pilot
1998 Evaluation conducted
2002 Full implementation of the program
2004 Second Evaluation conducted
2005 Amendments to improve case management
1996 Manitoba Expedited Actions (Rule 20A)

Manitoba

Court of Queen's Bench Statutory Rules Committee

Court of Queen's Bench

In 2006, Chief Justice Marc C. Monnin announced a review of the Rule 20A. The review was meant to determine whether the rule should be retained in its current form or be amended to resolve any problems that have arisen out of its application. A Review Committee was assigned consisting of Justices from the Court of Queen's Bench as well as members of the bar.

Streamlined procedure rule for all claims under $50,000 in Queen's Bench.

  • Rule 20A applies to all claims of $50,000 or less. It can also apply to cases above $50,000 by consent or order.
  • A case conference must be held under Rule 20A subject to some exceptions. The purpose of the case conference is to explore settlement possibilities and streamline proceedings
  • Rule 20A(16) gives the case conference judge the power to make orders he or she "considers appropriate to ensure a just, expeditious and cost effective determination of the action". Examples of possible orders are: dispensing with or limiting discovery, exchanging expert reports at a fixed time, requiring the parties to file an agreed statement of facts, requiring trial dates be fixed within 180 days of the date of the first case conference, or that a further case conference be held at a fixed date.
  • Rule 20A does not apply to family law proceedings

In 1996, the Court of Queen's Bench, at the prompting of the Manitoba Bar Association, introduced Rule 20A, intended to streamline the procedure for smaller claims brought in that court.

The purpose of Rule 20A is to resolve cases under $50,000 in a just, expeditious, and cost effective manner.

In May 2009, the Proposed Draft Rule 20A was circulated for comments by the profession to be received by June 30, 2009.
 

The proposed revisions to Queen's Bench Rule 20A...are based on the concept of proportionality, with the object being to institute a process that will facilitate the "expeditious and less expensive determinations of actions." It is proposed to adopt pre-trial procedures that are proportional in cost to the amount at issue in the action. The changes are intended to make it possible for litigants to have their modest claims adjudicated by the Court quickly and at reasonable cost. The existing rule contemplates that matters would be set down for trial within 180 days of the date of the first case conference. While this is not occurring under the current rules, the hope is to move closer to that goal with these new rules.

It is anticipated that such changes will enhance access to justice and diminish the negative impact on the legal system caused by the inability of parties to have their matters adjudicated in a financially equitable manner.

Introductory Remarks at 2

Permanent implementation

  • Court of Queen's Bench of Manitoba
  • expedited litigation
  • rules of court
1996 Rule implemented
2006 Review of rule commenced
May 2009 Proposed Draft of the Revised Rule 20A circulated for comment
1996 Northwest Territories Case Management (Part 19)

Northwest Territories

Supreme Court of the Northwest Territories

Supreme Court of the Northwest Territories

The Court has noted areas which are in need of improvement and the Rules Committee had indicated its intention to address them commencing Fall 2007.

Rules facilitating resolution of disputes without trial if possible and, if a trial is required, simplifying issues so as to make the entire process more efficient in both time and money for the litigants.

Part 19 sets out a comprehensive scheme for pre-trial case management. There is no set procedure for case management. Instead Part 19 utilizes a flexible approach consisting of various case management tools (i.e. pre-trial conference) to be used based on the nature and needs of the case. The Court could send a case to case management or the parties may apply for it. A case management judge is then appointed. Once a judge is appointed, a variety of procedures are available:

  • Pre- trial conference: Rule 231 of the 1979 Rules of Court describes the objective of the pre-trial conference as the simplification of issues and exploration of the possibility of admission. The purpose of the pre-trial conference is not to bring about settlement, but if that is the result, then all the better.
  • Case management: In larger complex cases, a case management programme may be necessary. Settlement of the case is not the purpose of case management, but rather, it is to prepare the case for trial in the most efficient and cost effective way. Case management may involve establishing a schedule for all interlocutory pre-trial steps; limiting the time period for discovery; setting dates for the exchange of expert reports; filing a Statement of Agreed Facts. More than one case management conference may be scheduled. After each conference a judge would prepare a memorandum outlining the subject-matter of the conference and any directions made. The memorandum will provide at least an informal and basic record of steps taken at the conferences. A case management judge can be the trial judge due to the limited number of judges on the bench.
  • Settlement conference: A settlement conference is essentially a form of alternative dispute resolution designed to avoid trials. The judge's role is that of an objective mediator who keeps the discussion on track. Topic areas include: assessing success on various issues and damages that may be awarded; financial resources available to parties to meet a judgement; insurance coverage; offers and counter offers made; legal costs of litigation to date, to trial, and to possibly appeal. As a general rule, the settlement conference judge cannot be the trial judge. A settlement conference may be requested by the agreement of all the parties.
  • Mini-trial: Mini trials are in-camera hearings whereby the presiding judge gives a non binding advisory opinion on the probable outcome at trial [Rule 292]. The mini trial judge cannot be the trial judge. This procedure is best suited to cases which involve areas of legal dispute where neither credibility nor facts are significantly at issue. Although the judge's opinion would only be advisory, it normally would have a substantial enough effect on counsel to move the parties toward settlement.

Rule 288 permits sanctions against any party violating orders issued under Part 19.

The incorporation of Part 19 into the Rules of Court was essentially a formalization of dispute mechanism tools already informally used by the court. By putting the rules in writing, the Court is able to apply the procedures uniformly and with clear guidelines. Rules 281-292 (Part 19) were modelled on Saskatchewan's r. 192, Ontario's r.50, and B.C.'s r.35(5).

A second Notice to the Profession was released in December 1999 to clarify some minor problematic issues. Parties were utilizing case management to resolve issues that other Rules of Court were meant to resolve. Overall, however, it seems that case management was working well in the Northwest Territories and would be retained.

The Supreme Court of the Northwest Territories describes the purpose of Part 19 in a Notice to the Profession issued in June 1996:

The purpose of Part 19 is to provide flexibility in procedures so as to facilitate matters for trial or to effect a pre-trial settlement. It is premised on the "multi-door courthouse" approach: one way to get into system (by starting an action) but, once in the system, many options (beside a trial) to choose from. The rules can accommodate a wide variety of steps from the traditional pre-trial conference to a highly involved settlement-oriented colloquy. The objectives are nevertheless the same: the resolution of disputes without trial if possible and, if a trial is required, the simplification of issues so as to make the entire process more efficient in both time and money for the litigants (1996 Notice).

Permanent implementation

  • case conferences
  • rules of court
  • settlement conferences
  • Supreme Court of the Northwest Territories
  • case management
1996 Case management rules come into effect
December 1999 Notice to the Profession clarifying rules

 

1997 Alberta Family Law Information Centres

Alberta

Alberta Justice - Family Justice Services

Alberta Justice's courthouse centres providing legal information and referrals to litigants with family law issues.

FLICs are located in Edmonton, Calgary, Red Deer, Lethbridge, Grande Prairie, and Medicine Hat.

The FLIC provides people with information about:

  • Child Support Guidelines
  • how to calculate child support
  • how to fill out court applications regarding child support, spousal support, child custody or access.
  • how to apply for a change to a Queen's Bench Order
  • how to oppose a family law application

The FLICs, initially called the Child Support Centre, began as a source of information on the Federal Child Support Guidelines when they were first released. The name was changed in 2000 to the Family Law Information Centre.

The Edmonton Centre began with 2 lawyers and 2 judicial clerks providing information to the public and members of the legal profession. The Calgary Centre began with 2 lawyers and 1 clerk.

Over time, the centres expanded their services by developing information booklets, programs and courses for parents, and providing referrals.

In October of 2005, the Family Law Act streamlined the family law services in Alberta. Rather than have separate services for each court, the services were brought together under the Family Justice Services.

The FLICs were established in response to the growing number of family law inquires, and specifically, the growing number of self-represented litigants (SRLs) in the justice system. By providing a source of family law information for people, delays are avoided and SRLs are capable of accessing the information they require for their cases.

Permanent implementation

  • Alberta Justice
  • courthouse resources
  • family law
  • legal information centres
  • litigants
  • public legal education and information
  • referrals
1997 Edmonton and Calgary locations opened as pilots
2007 Red Deer and Lethbridge locations opened
1997 Ontario Case Management (Rule 77)

Ontario

Civil Rules Committee

Superior Court of Justice (Toronto, Ottawa and Windsor)

Ontario Superior Court of justice rule which manages the time and events of cases as they pass through the justice system.

Rule 77

  • Puts time frames in place for specific events, with flexibility to meet the special circumstances of each case.
  • Parties are encouraged to settle, narrow or consolidate issues in order to streamline proceedings. Early judicial intervention is used to promote the resolution of the case in a timely manner.
  • Applies to all civil actions and applications commenced in Toronto (limited by r.78), Ottawa and Windsor (as of December 31, 2002).
  • Does not apply to family law actions, class proceedings, estates, bankruptcy and insolvency proceedings, mortgage actions, construction lien proceedings (except trust claims), Toronto Commercial List matters, or simplified rules (r.76) proceedings.
  • Cases are subject to mandatory mediation within 90 days of the filing of the first defence under r.24.1
  • Plaintiffs are required to select either the 'fast track' or the 'standard track' for their case based on the complexity of their case.
  • In the Toronto/Windsor locations, if mediation is unsuccessful or the case is exempt from mediation, the plaintiff must file a timetable or request a timetable within 180 days after the proceeding commenced.
  • Judicial intervention is accomplished by means of conferences with the parties. There are three types of conferences: (i) a case conference, (ii) a settlement conference, or (iii) trial management conference.

Application of Rule 77 Limited in Toronto Region
A Practice Direction was issued in November 2004 limiting the application of Rule 77 by Rule 78 in the Toronto region to those cases which required caseflow management. Rule 78 is a pilot project which no longer assigns civil cases automatically into a case management stream, but rather gives counsel more responsibilities on the progression of their case. Rule 78 is designed to respond more particularly to case needs.
 
Cased Not Falling Under Rule 77
Practice Direction issued in 2005 reiterated the tools available for judicial management of cases not falling under Rule 77:

  • Rule 37.15 allows the parties to request that a single judge be appointed to hear motions for proceedings involving complicated issues or if two or more proceedings involve similar issues.
  • Under Rule 48.14, Status Notices will be issued for actions that have not been placed on the trial list within two years after the filing of a statement of defence, indicating that the proceeding will be dismissed for delay, unless the action is set down for trial, the action is terminated by any means, or a status hearing is requested at which a judge orders otherwise.

In 1988, the Joint Committee on Court Reform called for implementation of a system of caseflow management. Pilot projects were established in three cities -- Sault Ste Marie, Windsor and Toronto.

In 1993, an assessment of the pilot projects was conducted by the Ministry of the Attorney General. The report concluded that the pilot projects were successful and made recommendations for their implementation.

A year later, in 1994, the Joint Committee on Court Reform engaged the QUINDECA Corporation, to conduct an independent review of the three pilot projects. QUINDECA's Report concluded that the case management experience in Ontario was sufficiently successful to warrant continuation.

As a result, the Ministry of the Attorney General's Civil Justice Review Committee produced a report endorsing the implementation of a caseflow management system in their 1995 First Report. The Civil Justice Review Committee called for a case flow management system on a province-wide basis by the year 2000. The report contained a draft rule on the subject, which later emerged as Rule 77. The draft rule was based on the experience gained in a previous pilot project conducted in Toronto, Essex and Algoma.

Caseflow management is a case-processing mechanism which manages the time and events of a law suit as it passes through the justice system. It does so with a view to achieving the following objectives:

  • the earlier resolution of disputes, where that is possible;
  • the reduction, and eventual elimination, of delays and backlogs;
  • the allocation of judicial, quasi-judicial and administrative resources to cases in the most effective manner; and,
  • reduction of the cost of litigation.

 
On October 1, 2008, the Civil Rules Committee issued a request for consultation on a proposed new case management Rule 77. These specific amendments "were so identified because they were not expressly considered, at least not in their current form, as part of the formal recommendations of the Civil Justice Reform Project".
 

One proposal is for a new case management rule (Rule 77) that carries with it certain consequential amendments to the rule respecting mandatory mediation (Rule 24.1). The intention of the new case management rule is to combine the existing three Rules that involve different forms of case management (rule 37.15, Rule 77 & Rule 78) into one Rule. The new Rule is designed to be flexible enough to permit different Regions of the Province to adapt the case management process to fit the individual needs of each Region. In that regard, the new Rule does not propose or envisage any substantive change to the manner in which case management currently operates in Ottawa, Toronto or Windsor. The new Rule also allows for different levels of case management for different cases. The mandatory mediation rule is to be altered to make it a separately operating rule such that mandatory mediation can be required in cases without also requiring those cases to be subject to case management and vice versa. There is also more flexibility as to the timeframe within which mandatory mediation must occur under the amended Rule.

Consultation Paper at 1
 

 

Implemented in Ottawa and Windsor; automatic application suspended in Toronto

  • litigation management
  • Ontario Superior Court of Justice
  • rules of court
  • case management
1988 Joint Committee on Court Reform called for caseflow management; pilot projects established subsequently
1993 Ministry of Attorney General concluded pilots were successful
1994 QUINDECA Corporation evaluation of caseflow management pilots
1995 First Report of the Civil Justice Review issued
1996 Civil Justice Review Supplemental and Final Report issued
1997 Implementation of Rule 77 in Ottawa and Toronto
2002 Implementation of Rule 77 in Windsor
2004 Automatic application suspended in Toronto.

 

1997 Prince Edward Island Case Management

Prince Edward Island

Supreme Court of Prince Edward Island

Supreme Court of Prince Edward Island

Supreme Court of Prince Edward Island single track case management system that leads to the completion of discoveries and the involvement of case management judges at the earliest dates possible prior to the pre-trial conference.

The Prince Edward Island Supreme Court has adopted a single track case management system. The Court explicitly states that the case management process is to remain as simple as possible. The case management system is outlined in Practice Note 4 for General Division cases. The stages are as follows:

  • Once the pleadings close, a case management phone call occurs within 45 days after the service of the statement of defence. The case management coordinator sets the date for the call. The case management coordinator is responsible for planning and providing directions for future steps, as well as setting a date for a pre-trial conference. Throughout this process, more than one case management conference may be set, particularly if complex issues arise.
  • The case management conference is informal and done over the telephone. The judge or case management coordinator will briefly discuss the following topics: what are the contested and uncontested issues; the possibility of mediation and other alternative dispute mechanisms being utilized; what information each party will require from the other and dates set for the submission of those materials; what constitutes a reasonable time for a pre-trial conference.
  • Discovery must be completed within 90 days after pleadings are closed.
  • Pre-trial conference: Parties must be fully prepared for trial at the pre-trial conference and all documents must be submitted to the other party and the court. The judge will be prepared to make recommendations for settlement where possible. If the case is not settled, a pre-trial memorandum is prepared outlining what issues remain to be resolved and what have been resolved, as well as an estimate of the length of trial. The parties have the option of accessing the pre-trial judge up until the date of the trial to iron out last minute details.
  • Complex Cases: If a case has a complex issue of law or fact, the case management coordinator must be informed and she will obtain an appointment with a judge to continue the management of the case.
  • All documents including expert reports and the pre-trial memorandum must be filed and served on all parties at least 7 days prior to the pre-trial conference [Rule 50.01].

Practice Note 5 is an alternate case management system for family law cases. The two procedures are quite similar for the most part with some minor differences. Among these differences are shorter time spans for discovery (60 days instead of 90) and requirements for the clients to attend the pre-trial conference.

The intent behind this case management system is to reduce delays and cost, by completing discoveries and involving case management judges at the earliest dates possible prior to the pre-trial conference.

Permanent implementation

  • litigation management
  • pre-trial procedure
  • Supreme Court of Prince Edward Island (Trial Division)
1997 Case management implemented via Practice Note
2006 Practice Notes reviewed and consolidated
1997 Saskatchewan Small Claims Court

Saskatchewan

Saskatchewan Provincial Court (Civil Division) - Small Claims Court

Overview of the Saskatchewan Small Claims Court.

1997 Initiatives
The previously existing legislation governing small claims was replaced by the Small Claims Act which was written "to ensure the language is clear and understandable, enhancing its usefulness for people without a legal background". The changes introduced included:

  • expanding the types of disputes the Small Claims Court could hear;
  • expanding the type of orders Small Claims Court could make (at the time, the Court was limited to ordering the payment of money or the return of property);
  • giving the Small Claims Court the ability to transfer a case to a different and more appropriate court location at the request of a party;
  • authorizing the Court of Queen's Bench to transfer matters to Small Claims Court with the parties' consent;
  • eliminating the requirement for a party to prove their claim if the other party does not appear for trial;
  • allowing judges to be more detailed in specifying how orders should be complied with (i.e. ordering an instalment schedule for a payment order); and
  • enabling the claim limit ($5,000 at the time) to be replaced by a higher limit either province-wide or in certain parts of the province (1997 News Release).

2006 Initiatives
A review of the small claims court system in the province was conducted in 2003-2004. The review examined "three areas: how the small claims court system works; a comparative analysis of small claims court systems in other Canadian jurisdictions, and recommendations for changes to better ensure that the small claims court system is accessible, effective and affordable" (2003-2004 Annual Report at 33).

Based on the recommendations arising out of the review process, several changes were implemented:

  • effective January 1, 2006, monetary limit was increased from $5,000 to $10,000
  • Provincial Court Act was amended to establish a Civil Division of Provincial Court to reflect the specialized nature of small claims adjudication
  • Small Claims Act was amended to require parties involved in the dispute attend a case management session prior to proceeding to trial. This process had been previously piloted in two locations in the province with success. A case management judge assists the parties in settling the matter prior to trial. If no resolution is achieved, the judge may give any necessary directions to the parties to ensure the trial proceeds quickly and efficiently (2005 News Release).

Further Increases to Monetary Jurisdiction of the Court

  • On January 1, 2007, the monetary limit was increased from $10,000 to $15,000.
  • On November 1, 2007, the monetary limit was increased from $15,000 to $20,000.

Small Claims Court is within the Civil Division of the Saskatchewan Provincial Court established by s.2 of the Small Claims Act.

Ensuring efficient and effective resolution of civil disputes in Saskatchewan.

Permanent Implementation

  • Saskatchewan Small Claims Court
1997 New Small Claims Act came into force
2003 Review of the Small Claims Court System initiated
January 2006 Provincial Court (Civil Division) established
January 2006 Case management conferences introduced province-wide
January 2006 Monetary jurisdiction of the Court increased from $5,000 to $10,000
January 2007 Monetary jurisdiction of the Court increased from $10,000 to $15,000
November 2007 Monetary jurisdiction of the Court increased from $15,000 to $20,000

 

1998 Alberta Provincial Court Civil Claims Mediation

Alberta

Alberta Justice

Provincial Court - Civil Division

Alberta regulation introducing mandatory mediation in selected Provincial Court cases to assist the parties in resolving disputes without going to trial.

  • At any time after a dispute note is filed the matter may be reviewed and chosen for mediation. Parties are sent a letter signed by a judge requiring them to attend a mediation session at a specific date and time. All parties are required to attend mediation and a corporate representative must have knowledge of the case and the authority to resolve it. Counsel and agents representing parties may attend with the party.
  • The mediation session must occur within three months after the last dispute note is filed.
  • Failure to attend mediation may result in the party who failed to attend without a reasonable excuse being ordered to pay costs of up to $50, being unable to take further proceedings in the action, or having the claim or dispute note struck out, entitling the other part to apply for a judgment without a trial.
  • A party must make an application to the Court exempting them from the requirement to mediate.
  • Co-mediation is used in this program to ensure quality of service. All mediators are volunteers and receive an honorarium of $75 per mediation session. Each session typically lasts two hours.
  • To mediate with this program, mediators must have completed at least 40 hours of basic mediation training. Candidates who meet this requirement are invited to attend a determination interview. Successful interviewees are invited back to an orientation session and must sign a Code of Ethics, Oath of Confidentiality, and agree to a criminal check. In the Code of Ethics it states that the mediator agrees they are committed to continuous learning. Alberta Justice supports on-going training for the mediators; training may include lunch hour sessions and at least one major training session per year where the mediators pay a nominal registration fee of $50.
  • The mediation coordinators provide on-going support to the mediators and parties. The coordinators address questions and concerns from all parties and the mediators and make administrative decisions including determining the suitability of cases for mediation.
  • There is no cost to the parties to attend mediation. Alberta Justice funds this program, including the majority of the training costs.

The mediation process was developed and implemented in 1997 in Alberta Regulation 271/1997 under ss. 65 and 66 of the Provincial Court Act.

The court centres which have implemented the program keep statistics on the mediation settlement rate. Statistics collected from the Calgary and Edmonton programs in 2005 indicate a mediation settlement rate of approximately 63% using interest-based mediation.

Permanent implementation in four court centres

  • litigants
  • mandatory programs
  • mediation
  • Provincial Court of Alberta
  • reform
January 1998 Implemented in Edmonton
September 1998 Implemented in Calgary
January 2006 Implemented in Lethbridge
February 2006 Implemented in Medicine Hat
November 2006 Implemented in Red Deer
2007 Implemented in Grand Prairie
1998 Alberta Streamlined Procedure (Part 48)

Alberta

Rules of Court Committee

Court of Queen's Bench

Alberta Queen's Bench Rules of Court mandating streamlined procedure for civil actions of up to $75 000.

The Streamlined Procedure rules set forth in Part 48 are mandatory for civil actions up to $75 000. They can also be ordered by the court or agreed upon by both parties. Other rules continue to apply but only to the extent consistent with this procedure.

  • Parties can apply for a pre-trial conference after examinations for discovery. Timelines for submissions can be set by the court as well. [665]
  • Any party can apply for case management. [668]
  • Disclosure of connected witnesses is mandatory. [661(4)]
  • Examination for discovery of a party is limited to 6 hours. [662(1)]
  • Examinations can be done through writing. Written interrogatories are limited to 1000 words. [662(5)]
  • Appeals are allowed only from a final judgement or order. [671]
  • Each party must file and serve affidavit of documents within 30 days of close of pleadings. [661(1)]
  • Generally, no motions may be made without leave of the Court if banned by a case management judge or master. [669]
  • Costs are imposed for "unnecessary or ill-founded motions" and for failing to comply with deadlines.

The Streamlined Procedure rules address the lack of proportionality between the amount being sued for and the cost of litigation. In many cases it is not economical to litigate for amounts less than $50 000 using the regular track.

In March 2003, the Alberta Law Reform Institute released a report analyzing the effectiveness of Streamlined Procedure. It collected responses and sent out proposals for the reform of streamlined procedure or the introduction of a simple track, or both. Some of the criticisms of Streamlined Procedure included:

 

  • Streamlined Procedure should not come in only based on dollar amounts but rather the complexity or simplicity of the case.
  • After the Affidavits of Records stage, the procedure slows down significantly and becomes no different than the regular track.
  • Lack of awareness of the availability of streamlined procedure by lawyers and clients, as well as a concern among lawyers that the limitations would mean the submission of a less than complete case for final disposition.

As a result of this study, the Alberta Law Reform Institute concluded in its 2004-2005 Annual Report that if different tracks for different types of cases are implemented, then streamlined procedure should be eliminated.

Permanent implementation

  • Alberta Court of Queen's Bench
  • expedited litigation
  • reform
  • rules of court
1998 Rules implemented
2003 Alberta Law Reform Institute review
1998 Alberta Streamlined Procedure (Part 48)

Alberta

Rules of Court Committee

Court of Queen's Bench

Alberta Queen's Bench Rules of Court mandating streamlined procedure for civil actions of up to $75 000.

The Streamlined Procedure rules set forth in Part 48 are mandatory for civil actions up to $75 000. They can also be ordered by the court or agreed upon by both parties. Other rules continue to apply but only to the extent consistent with this procedure.

  • Parties can apply for a pre-trial conference after examinations for discovery. Timelines for submissions can be set by the court as well. [665]
  • Any party can apply for case management. [668]
  • Disclosure of connected witnesses is mandatory. [661(4)]
  • Examination for discovery of a party is limited to 6 hours. [662(1)]
  • Examinations can be done through writing. Written interrogatories are limited to 1000 words. [662(5)]
  • Appeals are allowed only from a final judgement or order. [671]
  • Each party must file and serve affidavit of documents within 30 days of close of pleadings. [661(1)]
  • Generally, no motions may be made without leave of the Court if banned by a case management judge or master. [669]
  • Costs are imposed for "unnecessary or ill-founded motions" and for failing to comply with deadlines.

The Streamlined Procedure rules address the lack of proportionality between the amount being sued for and the cost of litigation. In many cases it is not economical to litigate for amounts less than $50 000 using the regular track.

In March 2003, the Alberta Law Reform Institute released a report analyzing the effectiveness of Streamlined Procedure. It collected responses and sent out proposals for the reform of streamlined procedure or the introduction of a simple track, or both. Some of the criticisms of Streamlined Procedure included:

 

  • Streamlined Procedure should not come in only based on dollar amounts but rather the complexity or simplicity of the case.
  • After the Affidavits of Records stage, the procedure slows down significantly and becomes no different than the regular track.
  • Lack of awareness of the availability of streamlined procedure by lawyers and clients, as well as a concern among lawyers that the limitations would mean the submission of a less than complete case for final disposition.

As a result of this study, the Alberta Law Reform Institute concluded in its 2004-2005 Annual Report that if different tracks for different types of cases are implemented, then streamlined procedure should be eliminated.

Permanent implementation

  • Alberta Court of Queen's Bench
  • expedited litigation
  • reform
  • rules of court
1998 Rules implemented
2003 Alberta Law Reform Institute review
1998 Alberta Summary Trial Rules

Alberta

Court of Queen's Bench

Other than various amendments, the Alberta Rules of Court have not been comprehensively reviewed since they were written in 1968. As a result, the Alberta Law Reform Institute (ALRI) was assigned to manage the Rules of Court project to oversee the rewriting of the rules. The objective of the Project is to increase the clarity, usability, and effectiveness of the Rules in to make them more accessible.

Rule 158 was reviewed as part of this project.

Alberta Queen's Bench Rules of Court setting out simpler procedure for adjudicating an entire action or one or more issues suitable for summary trial determination.

The summary trial procedure is set out in Part 11, Rules 158.1 - 158.7. It allows a judge to order one or more issues tried by this shorter, and usually simpler, procedure, even if the entire action cannot be conveniently tried in this manner. A decision under these rules is a final judgment which is appealable. Evidence is introduced by affidavit, or with an order, viva voce.

The decision as to whether a matter can be tried by this procedure is made by way of an application in chambers; if the matter is deemed suitable, it is then set for a summary trial. Much of the evidence to be adduced at the summary trial procedure must be introduced in the chambers application...

The Rules do not set out a test nor a process for determining whether a case is suitable for summary trial procedure, other than indicating that a notice of motion is required to apply for judgment (Rule 158.1), and that "on or before the hearing of a summary trial...the judge may" determine whether any issue is suitable for disposition under this procedure (Rule 158.4(1)(a)), or dismiss the summary trial "on the grounds that (i) the issues raised by the notice of motion are not suitable for disposition under this Division, or (ii) the summary trial will not assist the efficient resolution of the action" (Rule 158.4(1)(b)).

Summary Disposition of Actions at 33-34

PN8 sets out the process for determining whether a case is suitable for summary trial procedure, which states that:

  • there are two components to a summary trial - (1) is/are the issue(s) suitable for a summary trial determination, and (2) the merits of the summary trial application. [2(a)]
  • determination of these two components could occur in one application or as two separate matters [2(b)(c)(d)]
The stage one application can be made as a regular chambers application (if it will take less than 20 minutes), or if it will take more than 20 minutes to argue, counsel must reserve a date and time on the civil trial list (PN8, para. 3). The Rules do not address, and the practice note is not entirely clear about, what evidence must be produced at the first stage application: however, the case law establishes that generally most, if not all, of the material that would be filed in support of the summary trial application will be required at the first stage as well. That is why a number of lawyers commented that this type of application involves a great deal of work.

PN8 also confirms that counsel can choose to make the application for determination of suitability for summary trial at the time the summary trial is to be heard, and that even though a preliminary determination is made that the summary trial procedure is appropriate for a particular case, the judge hearing the summary trial can reverse that decision and set the matter for a regular trial (as is set out in Rule 158.6).

Summary Disposition of Actions at 35-36
Not all matters are suitable for disposition by way of a summary trial. In Alberta, Rule 158.4 gives a discretion to the judge hearing a summary trial to adjourn or dismiss it on the grounds that the issues are not suitable for disposition as a summary trial or that a summary trial will not assist the efficient resolution of the action. The rule states that this determination may be made "on or before the hearing of a summary trial" (158.4(1)). The amendments in 2000 added an option of providing advice and directions "including, without determining the merits of a summary trial procedure, a determination, subject to 158.6(1), whether any issue raised in the notice of motion is suitable for disposition under this Division" (Rule 158.4(1)(a)).

Summary Disposition of Actions at 34

Rules 158.1-158.7 (Part 11, Division 1) governing Summary Trials were added to the Alberta Rules of Court on September 1, 1998. These Rules were modelled after B.C.'s Rule 18A.

In September 2000, the Rules were amended and QB Civil Practice Note No. 8 ("PN8") was introduced to further broaden judicial direction.

To reduce delays in the civil justice system, expedite adjudication and avoid unnecessary costs.

As was noted in the legal community consultations, the summary trial procedures can be very effective but seem to be rarely granted and require a lot of paper work to make the initial application.

Summary Disposition of Actions at 36

ALRI identified the following issues and made corresponding recommendations to the Rules Project General Rewrite Committee in August of 2004:
 

Issues

  • Issue 10: Should the summary trial procedure be a one-stage procedure, a two-stage procedure, or should there be an option?
  • Issue 11: Should the factors to be considered by the court in applying the test for allowing a case to be determined by the summary trial procedure be set out in the rule, or in the practice note?
  • Issue 12: Would changes to the summary trial procedure assist in meeting the goals of lessening delay and providing increased access to justice? For example: (i) Should the rules set out the evidence needed for summary trial in different types of cases? (ii) Do the deadlines for filing materials provide enough time for crossexamination? (iii) Is the way in which summary trials are booked the most efficient method?
  • Issue 13: Summary Trial vs. Jury Trial

Recommendations

The Committee proposed the following:

  • the rules should not set out the evidence needed for summary trial in different types of cases.
  • Rule 158.4(3) should be deleted as it is unnecessary.
  • Rule 158.1 should state that the applicant can include expert evidence in an affidavit; that 218.1 does not need to be complied with; and that timelines can be modified with leave.

The Committee agreed that the summary trial procedure rules should be changed to reflect a presumptive one-stage procedure, rebuttable on application by a respondent who wants to argue that summary trial procedure is not appropriate in the circumstances.

With respect to the test for summary trial, the Committee agreed that the test should be stated in a rule, not a practice note, and should articulate the factors in Rule 158.4(1)(b), although the wording should be clarified and the test should be stated positively. The Committee also agreed to retaining the word "may" in the rule as opposed to making the procedure mandatory.

Given the recent legislative change, the Committee agreed that no change be made to the summary trial rule regarding jury trials now.

Summary Disposition of Actions at 45-46

Proposed Rules 7.5-7.11, Summary Trials (Part 7, Division 3)

Based on the recommendations of the Committee, new Rules were finalized and released on October 2008, including new Proposed Rules 7.5-7.11 governing Summary Trials.

The new Rules state that:

  • a party may apply for judgment by way of a summary trial, which application must (a) be in the prescribed form, (b) specify the issue to be determined, (c) include reasons why the matter is suitable for determination by way of summary trial, (d) be accompanied by an affidavit or any other evidence to be relied on, and (e) specify a date for the hearing of the summary trial, which must be one month or longer after service of notice of the application on the respondent (r.7.5)
  • the respondent to an application must, 10 days or more before the date scheduled to hear the application, file and serve on the applicant any affidavit or other evidence on which the respondent intends to rely (r.7.6)
  • rules re Disclosure of Information, and Experts and Expert Reports apply unless the parties otherwise agree or the court otherwise orders (r.7.7(1))
  • the respondent may object to the application at or before the hearing if either the issue raised is not suitable for a summary trial, or a summary trial will not facilitate resolution of the claim (r.7.8(1)) and if the court so finds, it must dismiss the application (r.7.8(3))
  • after a summary trial, the judge may dismiss the application, or grant the application and give judgment in favour of a party, unless (i) on the evidence before the judge, the judge is unable to find the facts necessary to decide the issues of fact or law, or (ii) the judge is of the opinion that it would be unjust to decide the issues on the basis of the summary trial (r.7.9)
  • If no judgment is given, the judge may (a) order the trial of the action and give directions with respect to preparation for trial and a trial date; (b) give any procedural order that the circumstances require (r.7.11)

Permanent implementation

  • Alberta Court of Queen's Bench
  • proposed reforms
  • reform
  • rules of court
  • summary trials
1 September 1998 Summary Trial Rules came into effect
September 2000 QB Civil Practice Note No. 8 introduced and Summary Trial Rules amended
2001 Consultations on Alberta Rules of Court Reforms commenced
October 2008 Proposed Rules released
1 January 2010 Planned implementation date
1998 Alberta Summary Trial Rules

Alberta

Court of Queen's Bench

Other than various amendments, the Alberta Rules of Court have not been comprehensively reviewed since they were written in 1968. As a result, the Alberta Law Reform Institute (ALRI) was assigned to manage the Rules of Court project to oversee the rewriting of the rules. The objective of the Project is to increase the clarity, usability, and effectiveness of the Rules in to make them more accessible.

Rule 158 was reviewed as part of this project.

Alberta Queen's Bench Rules of Court setting out simpler procedure for adjudicating an entire action or one or more issues suitable for summary trial determination.

The summary trial procedure is set out in Part 11, Rules 158.1 - 158.7. It allows a judge to order one or more issues tried by this shorter, and usually simpler, procedure, even if the entire action cannot be conveniently tried in this manner. A decision under these rules is a final judgment which is appealable. Evidence is introduced by affidavit, or with an order, viva voce.

The decision as to whether a matter can be tried by this procedure is made by way of an application in chambers; if the matter is deemed suitable, it is then set for a summary trial. Much of the evidence to be adduced at the summary trial procedure must be introduced in the chambers application...

The Rules do not set out a test nor a process for determining whether a case is suitable for summary trial procedure, other than indicating that a notice of motion is required to apply for judgment (Rule 158.1), and that "on or before the hearing of a summary trial...the judge may" determine whether any issue is suitable for disposition under this procedure (Rule 158.4(1)(a)), or dismiss the summary trial "on the grounds that (i) the issues raised by the notice of motion are not suitable for disposition under this Division, or (ii) the summary trial will not assist the efficient resolution of the action" (Rule 158.4(1)(b)).

Summary Disposition of Actions at 33-34

PN8 sets out the process for determining whether a case is suitable for summary trial procedure, which states that:

  • there are two components to a summary trial - (1) is/are the issue(s) suitable for a summary trial determination, and (2) the merits of the summary trial application. [2(a)]
  • determination of these two components could occur in one application or as two separate matters [2(b)(c)(d)]
The stage one application can be made as a regular chambers application (if it will take less than 20 minutes), or if it will take more than 20 minutes to argue, counsel must reserve a date and time on the civil trial list (PN8, para. 3). The Rules do not address, and the practice note is not entirely clear about, what evidence must be produced at the first stage application: however, the case law establishes that generally most, if not all, of the material that would be filed in support of the summary trial application will be required at the first stage as well. That is why a number of lawyers commented that this type of application involves a great deal of work.

PN8 also confirms that counsel can choose to make the application for determination of suitability for summary trial at the time the summary trial is to be heard, and that even though a preliminary determination is made that the summary trial procedure is appropriate for a particular case, the judge hearing the summary trial can reverse that decision and set the matter for a regular trial (as is set out in Rule 158.6).

Summary Disposition of Actions at 35-36
Not all matters are suitable for disposition by way of a summary trial. In Alberta, Rule 158.4 gives a discretion to the judge hearing a summary trial to adjourn or dismiss it on the grounds that the issues are not suitable for disposition as a summary trial or that a summary trial will not assist the efficient resolution of the action. The rule states that this determination may be made "on or before the hearing of a summary trial" (158.4(1)). The amendments in 2000 added an option of providing advice and directions "including, without determining the merits of a summary trial procedure, a determination, subject to 158.6(1), whether any issue raised in the notice of motion is suitable for disposition under this Division" (Rule 158.4(1)(a)).

Summary Disposition of Actions at 34

Rules 158.1-158.7 (Part 11, Division 1) governing Summary Trials were added to the Alberta Rules of Court on September 1, 1998. These Rules were modelled after B.C.'s Rule 18A.

In September 2000, the Rules were amended and QB Civil Practice Note No. 8 ("PN8") was introduced to further broaden judicial direction.

To reduce delays in the civil justice system, expedite adjudication and avoid unnecessary costs.

As was noted in the legal community consultations, the summary trial procedures can be very effective but seem to be rarely granted and require a lot of paper work to make the initial application.

Summary Disposition of Actions at 36

ALRI identified the following issues and made corresponding recommendations to the Rules Project General Rewrite Committee in August of 2004:
 

Issues

  • Issue 10: Should the summary trial procedure be a one-stage procedure, a two-stage procedure, or should there be an option?
  • Issue 11: Should the factors to be considered by the court in applying the test for allowing a case to be determined by the summary trial procedure be set out in the rule, or in the practice note?
  • Issue 12: Would changes to the summary trial procedure assist in meeting the goals of lessening delay and providing increased access to justice? For example: (i) Should the rules set out the evidence needed for summary trial in different types of cases? (ii) Do the deadlines for filing materials provide enough time for crossexamination? (iii) Is the way in which summary trials are booked the most efficient method?
  • Issue 13: Summary Trial vs. Jury Trial

Recommendations

The Committee proposed the following:

  • the rules should not set out the evidence needed for summary trial in different types of cases.
  • Rule 158.4(3) should be deleted as it is unnecessary.
  • Rule 158.1 should state that the applicant can include expert evidence in an affidavit; that 218.1 does not need to be complied with; and that timelines can be modified with leave.

The Committee agreed that the summary trial procedure rules should be changed to reflect a presumptive one-stage procedure, rebuttable on application by a respondent who wants to argue that summary trial procedure is not appropriate in the circumstances.

With respect to the test for summary trial, the Committee agreed that the test should be stated in a rule, not a practice note, and should articulate the factors in Rule 158.4(1)(b), although the wording should be clarified and the test should be stated positively. The Committee also agreed to retaining the word "may" in the rule as opposed to making the procedure mandatory.

Given the recent legislative change, the Committee agreed that no change be made to the summary trial rule regarding jury trials now.

Summary Disposition of Actions at 45-46

Proposed Rules 7.5-7.11, Summary Trials (Part 7, Division 3)

Based on the recommendations of the Committee, new Rules were finalized and released on October 2008, including new Proposed Rules 7.5-7.11 governing Summary Trials.

The new Rules state that:

  • a party may apply for judgment by way of a summary trial, which application must (a) be in the prescribed form, (b) specify the issue to be determined, (c) include reasons why the matter is suitable for determination by way of summary trial, (d) be accompanied by an affidavit or any other evidence to be relied on, and (e) specify a date for the hearing of the summary trial, which must be one month or longer after service of notice of the application on the respondent (r.7.5)
  • the respondent to an application must, 10 days or more before the date scheduled to hear the application, file and serve on the applicant any affidavit or other evidence on which the respondent intends to rely (r.7.6)
  • rules re Disclosure of Information, and Experts and Expert Reports apply unless the parties otherwise agree or the court otherwise orders (r.7.7(1))
  • the respondent may object to the application at or before the hearing if either the issue raised is not suitable for a summary trial, or a summary trial will not facilitate resolution of the claim (r.7.8(1)) and if the court so finds, it must dismiss the application (r.7.8(3))
  • after a summary trial, the judge may dismiss the application, or grant the application and give judgment in favour of a party, unless (i) on the evidence before the judge, the judge is unable to find the facts necessary to decide the issues of fact or law, or (ii) the judge is of the opinion that it would be unjust to decide the issues on the basis of the summary trial (r.7.9)
  • If no judgment is given, the judge may (a) order the trial of the action and give directions with respect to preparation for trial and a trial date; (b) give any procedural order that the circumstances require (r.7.11)

Permanent implementation

  • Alberta Court of Queen's Bench
  • proposed reforms
  • reform
  • rules of court
  • summary trials
1 September 1998 Summary Trial Rules came into effect
September 2000 QB Civil Practice Note No. 8 introduced and Summary Trial Rules amended
2001 Consultations on Alberta Rules of Court Reforms commenced
October 2008 Proposed Rules released
1 January 2010 Planned implementation date
1998 Alberta Summary Trial Rules

Alberta

Court of Queen's Bench

Other than various amendments, the Alberta Rules of Court have not been comprehensively reviewed since they were written in 1968. As a result, the Alberta Law Reform Institute (ALRI) was assigned to manage the Rules of Court project to oversee the rewriting of the rules. The objective of the Project is to increase the clarity, usability, and effectiveness of the Rules in to make them more accessible.

Rule 158 was reviewed as part of this project.

Alberta Queen's Bench Rules of Court setting out simpler procedure for adjudicating an entire action or one or more issues suitable for summary trial determination.

The summary trial procedure is set out in Part 11, Rules 158.1 - 158.7. It allows a judge to order one or more issues tried by this shorter, and usually simpler, procedure, even if the entire action cannot be conveniently tried in this manner. A decision under these rules is a final judgment which is appealable. Evidence is introduced by affidavit, or with an order, viva voce.

The decision as to whether a matter can be tried by this procedure is made by way of an application in chambers; if the matter is deemed suitable, it is then set for a summary trial. Much of the evidence to be adduced at the summary trial procedure must be introduced in the chambers application...

The Rules do not set out a test nor a process for determining whether a case is suitable for summary trial procedure, other than indicating that a notice of motion is required to apply for judgment (Rule 158.1), and that "on or before the hearing of a summary trial...the judge may" determine whether any issue is suitable for disposition under this procedure (Rule 158.4(1)(a)), or dismiss the summary trial "on the grounds that (i) the issues raised by the notice of motion are not suitable for disposition under this Division, or (ii) the summary trial will not assist the efficient resolution of the action" (Rule 158.4(1)(b)).

Summary Disposition of Actions at 33-34

PN8 sets out the process for determining whether a case is suitable for summary trial procedure, which states that:

  • there are two components to a summary trial - (1) is/are the issue(s) suitable for a summary trial determination, and (2) the merits of the summary trial application. [2(a)]
  • determination of these two components could occur in one application or as two separate matters [2(b)(c)(d)]
The stage one application can be made as a regular chambers application (if it will take less than 20 minutes), or if it will take more than 20 minutes to argue, counsel must reserve a date and time on the civil trial list (PN8, para. 3). The Rules do not address, and the practice note is not entirely clear about, what evidence must be produced at the first stage application: however, the case law establishes that generally most, if not all, of the material that would be filed in support of the summary trial application will be required at the first stage as well. That is why a number of lawyers commented that this type of application involves a great deal of work.

PN8 also confirms that counsel can choose to make the application for determination of suitability for summary trial at the time the summary trial is to be heard, and that even though a preliminary determination is made that the summary trial procedure is appropriate for a particular case, the judge hearing the summary trial can reverse that decision and set the matter for a regular trial (as is set out in Rule 158.6).

Summary Disposition of Actions at 35-36
Not all matters are suitable for disposition by way of a summary trial. In Alberta, Rule 158.4 gives a discretion to the judge hearing a summary trial to adjourn or dismiss it on the grounds that the issues are not suitable for disposition as a summary trial or that a summary trial will not assist the efficient resolution of the action. The rule states that this determination may be made "on or before the hearing of a summary trial" (158.4(1)). The amendments in 2000 added an option of providing advice and directions "including, without determining the merits of a summary trial procedure, a determination, subject to 158.6(1), whether any issue raised in the notice of motion is suitable for disposition under this Division" (Rule 158.4(1)(a)).

Summary Disposition of Actions at 34

Rules 158.1-158.7 (Part 11, Division 1) governing Summary Trials were added to the Alberta Rules of Court on September 1, 1998. These Rules were modelled after B.C.'s Rule 18A.

In September 2000, the Rules were amended and QB Civil Practice Note No. 8 ("PN8") was introduced to further broaden judicial direction.

To reduce delays in the civil justice system, expedite adjudication and avoid unnecessary costs.

As was noted in the legal community consultations, the summary trial procedures can be very effective but seem to be rarely granted and require a lot of paper work to make the initial application.

Summary Disposition of Actions at 36

ALRI identified the following issues and made corresponding recommendations to the Rules Project General Rewrite Committee in August of 2004:
 

Issues

  • Issue 10: Should the summary trial procedure be a one-stage procedure, a two-stage procedure, or should there be an option?
  • Issue 11: Should the factors to be considered by the court in applying the test for allowing a case to be determined by the summary trial procedure be set out in the rule, or in the practice note?
  • Issue 12: Would changes to the summary trial procedure assist in meeting the goals of lessening delay and providing increased access to justice? For example: (i) Should the rules set out the evidence needed for summary trial in different types of cases? (ii) Do the deadlines for filing materials provide enough time for crossexamination? (iii) Is the way in which summary trials are booked the most efficient method?
  • Issue 13: Summary Trial vs. Jury Trial

Recommendations

The Committee proposed the following:

  • the rules should not set out the evidence needed for summary trial in different types of cases.
  • Rule 158.4(3) should be deleted as it is unnecessary.
  • Rule 158.1 should state that the applicant can include expert evidence in an affidavit; that 218.1 does not need to be complied with; and that timelines can be modified with leave.

The Committee agreed that the summary trial procedure rules should be changed to reflect a presumptive one-stage procedure, rebuttable on application by a respondent who wants to argue that summary trial procedure is not appropriate in the circumstances.

With respect to the test for summary trial, the Committee agreed that the test should be stated in a rule, not a practice note, and should articulate the factors in Rule 158.4(1)(b), although the wording should be clarified and the test should be stated positively. The Committee also agreed to retaining the word "may" in the rule as opposed to making the procedure mandatory.

Given the recent legislative change, the Committee agreed that no change be made to the summary trial rule regarding jury trials now.

Summary Disposition of Actions at 45-46

Proposed Rules 7.5-7.11, Summary Trials (Part 7, Division 3)

Based on the recommendations of the Committee, new Rules were finalized and released on October 2008, including new Proposed Rules 7.5-7.11 governing Summary Trials.

The new Rules state that:

  • a party may apply for judgment by way of a summary trial, which application must (a) be in the prescribed form, (b) specify the issue to be determined, (c) include reasons why the matter is suitable for determination by way of summary trial, (d) be accompanied by an affidavit or any other evidence to be relied on, and (e) specify a date for the hearing of the summary trial, which must be one month or longer after service of notice of the application on the respondent (r.7.5)
  • the respondent to an application must, 10 days or more before the date scheduled to hear the application, file and serve on the applicant any affidavit or other evidence on which the respondent intends to rely (r.7.6)
  • rules re Disclosure of Information, and Experts and Expert Reports apply unless the parties otherwise agree or the court otherwise orders (r.7.7(1))
  • the respondent may object to the application at or before the hearing if either the issue raised is not suitable for a summary trial, or a summary trial will not facilitate resolution of the claim (r.7.8(1)) and if the court so finds, it must dismiss the application (r.7.8(3))
  • after a summary trial, the judge may dismiss the application, or grant the application and give judgment in favour of a party, unless (i) on the evidence before the judge, the judge is unable to find the facts necessary to decide the issues of fact or law, or (ii) the judge is of the opinion that it would be unjust to decide the issues on the basis of the summary trial (r.7.9)
  • If no judgment is given, the judge may (a) order the trial of the action and give directions with respect to preparation for trial and a trial date; (b) give any procedural order that the circumstances require (r.7.11)

Permanent implementation

  • Alberta Court of Queen's Bench
  • proposed reforms
  • reform
  • rules of court
  • summary trials
1 September 1998 Summary Trial Rules came into effect
September 2000 QB Civil Practice Note No. 8 introduced and Summary Trial Rules amended
2001 Consultations on Alberta Rules of Court Reforms commenced
October 2008 Proposed Rules released
1 January 2010 Planned implementation date
1998 BC Family Justice Registry (Rule 5)

British Columbia

Ministry of the Attorney General

Provincial Court (Family)

The evaluation investigated six issues:

  • 1. Diversion from court: the extent to which Rule 5 diverts family matters from court.
  • 2. Court use: the extent to which Rule 5 reduces the number of court appearances per application filed at court
  • 3. Claims of urgency: whether there is evidence to suggest that parties file claims of urgency with their applications simply to avoid the mandatory triage process
  • 4. Family case conferences: the use and effectiveness of family case conferences to resolve disputes within the court system
  • 5. Case outcomes: the degree to which cases conclude with court orders, rather than consent orders or agreements, in Rule 5 registries and comparison sites
  • 6. Benefits to clients: the perceptions of staff, the judiciary and clients themselves regarding the benefits of the triage process.
Evaluation at 4.

In order to evaluate the effectiveness of Rule 5, an extensive comparison of cases at pilot locations and comparator sites was conducted. Furthermore, files that preceded the rule changes at both sites were compared to files that came after the new rules. A total of 2,800 court files representing nearly 3,400 FRA applications were reviewed.

Additionally, 39 in-depth interviews were conducted with members of the judiciary, FJC's, and court registry staff. A short written survey of nearly 300 clients was used to obtain feedback on the Triage services.

Rule requiring parties to meet with a Family Justice Counsellor for a triage appointment prior to a first appearance before a judge to clarify the options available for resolving their disputes.

[P]arties to FRA cases are required to meet with a Family Justice Counsellor (FJC) for a triage appointment prior to a first appearance before a judge. The FJC helps each party individually to clarify their issues and understand the options available for resolving their disputes. Mediation services are available free of charge to families of limited income, at the triage offices. FJCs may refer parties to mediation or other services; the parties may choose to act on these referrals or request a referral to court. Although Rule 5 makes triage mandatory, exemptions from the triage process are permitted where there is an urgent need for a court appearance and in other limited circumstances.

Evaluation at 3.

On December 1, 1998, the Ministry of Attorney General introduced new Provincial Court (Family) Rules, designed to improve case management and to provide more opportunities for early settlement such as judicial Family Case Conferences. Changes to the rules were made in response to issues related to accessibility and timeliness of the family court process and to the complexity of the family justice system.

One of the new rules, Rule 5, was designed to reduce the use of the provincial court for Family Relations Act (FRA) matters by promoting the use of early, non-court methods of dispute resolution and by reducing the number and complexity of FRA trials.

Rule 5 introduced a new process, informally known as "triage", as a required first step in FRA cases in the designated Family Justice Registries of Surrey, Kelowna and Robson Square. On April 1, 2007, Nanaimo was established as a fourth Family Justice Registry. In these Registries, most parties to FRA cases are required to meet with a Family Justice Counsellor (FJC) for a triage appointment prior to a first appearance before a judge.

Website

The triage process was designed to divert parties from court by providing and encouraging the use of alternatives to court. It was also hoped that triage would help parties better understand their issues and perhaps narrow them, so that court cases - where still used - could be shorter and deal only with issues where the parties continued to disagree.

Diversion from the Courts

Before the implementation of Rule 5, 2-3% of cases did not go to court. After the Rule 5 was implemented, 29% of cases did not proceed to court. The diversion that resulted from Rule 5 was approximately 70% greater than sites without the rule.
 

Court Use

Rule 5 was meant to reduce the number of court appearances by helping litigants narrow their issues. The evaluation found that the number of court appearances were reduced in Rule 5 jurisdictions. There were 1.6 appearances in Rule 5 sites compared to 2.1 in regular jurisdictions. Furthermore, after the introduction of the new rules of court there was an overall reduction in appearances, however, the reduction was more pronounced in Rule 5 jurisdictions. There was a 41% decrease in appearances in Rule 5 sites, compared to 17% in regular jurisdictions.
 

Claims of Urgency

Some litigants try to avoid rule 5 by applying for exemptions. There was a slight increase in exemptions in Rule 5 jurisdictions (1%) as opposed to a 4% decrease in other jurisdictions.
 

Family Case Conference

There was no significant difference between case conference rule 5 jurisdictions and comparison sites. However, judges that were interviewed found them useful in reducing appearances. But they did find that time limitations affected their ability to have case conferences.
 

Case Settlement Patterns

It was anticipated that the number of cases settled by court orders would be reduced with the new court rules. However, there was in an increase of court ordered resolutions in comparison sites. At Rule 5 sites, there was a 5-6% decrease. This was not overly significant.
 

Client Benefits

The triage process was intended to provide information, assistance and other benefits to clients. The hope was that their disputes could be resolved in a less costly manner. Through surveys and interviews, the report concluded that:

Triage educates and informs parties about the family justice process and alternative methods of dispute resolution.

  • Meeting with an FJC for triage helps parties to clarify and/or narrow issues, and consider the other party's issues.
  • Triage has a diffusing effect, addressing the charged emotions that often characterize family justice cases.
Evluation at 8.

Judges also expressed their preference for Rule 5. They preferred the personalized approach as much more effective at handling family disputes than the adversarial process.

  • 93% of survey participants agreed or strongly agreed that going to the Family Justice Centre was useful to them, and
  • 96% agreed or strongly agreed that they were given useful information by the FJC.
Evluation at 8-9.

Permanent implementation

  • assessment
  • family law
  • litigants
  • Provincial Court of British Columbia
  • rules of court
December 1998 Rule 5 introduced in Surrey, Vancouver (Robson Square), Nelson, Castlegar and Rossland registries
May 2001 Expanded to Kelowna
November 2002 Evaluation released
April 2007 Expanded to Nanaimo
1998 BC Fast Track Litigation (Rule 66)

British Columbia

BC Supreme Court

BC Supreme Court fast track rules that apply to actions which will likely take 2 or less days of trial time.

Rule 66 applies to actions which will likely take 2 or less days of trial time. For Rule 66 to apply, either the plaintiff or the defendant must opt for fast track at the time of the Statement of Claim or Statement of Defence. Features of Rule 66 include:

  • Discovery is limited to two hours per party.
  • There are no interrogatories.
  • No jury trials.
  • The trial date must be applied for within four months of the case going on Fast Track. The date assigned for trial will be within four months of the date of application.
  • Parties are required to file a trial agenda which will set out how the two day trial is to proceed.
  • Costs are set at fixed amounts.

Rule 66 grew out of the BC Supreme Court's Litigation Management Committee discussion of a multiple track system. The Committee was comprised of members of the bar, the court, representatives of the federal and provincial Attorneys-General and the public. Submissions were received from members of the legal profession, and drafting help was received from the Rules Revision Committee. The fast track rules began as a pilot project running from September 1, 1998.

In its November 2006 report, the BC Justice Review Task Force made a number of recommendations for the re-writing of the Supreme Court Rules. After several drafts and consultations, it was announced that the new civil and family rules have been adopted and will be fully implemented July 1, 2010.

Part 15, the new fast track litigation rule, combines old Rules 68 and 66, governing expedited litigation and fast track litigation, respectively, "to provide a single simplified and fast procedure when the amount in controversy is $100,000 or less or when the trial of the action can be completed in three days or less" (Key Features at 3).

The purpose of Fast Track litigation is to reduce delays and the cost of litigation of actions which can be completed in two trial days.

In a 2003 Advocate editorial, Rule 66 was praised as a "versatile and useful tool... placed in the hands of litigators wishing to have a civil dispute of modest dimensions adjudicated in a speedy, comparatively inexpensive, yet just manner." (Entre Nous)

According to the Justice Review Task Force reportExploring Fundamental Change, a Supreme Court evaluation found that Rule 66 was not successful in fully achieving its objectives. Further evaluation of economical litigation alternatives led to the implementation of the Rule 68 Expedited Litigation Project.

Permanent implementation

  • expedited litigation
  • rules of court
  • Supreme Court of British Columbia
1998 Fast Track procedure implemented in Vancouver, New Westminster and Kamloops as a pilot project
2002 Rule 66 took effect province-wide.
July 1, 2010 Projected implementation of new Rules, replacing Rule 66
1998 BC Fast Track Litigation (Rule 66)

British Columbia

BC Supreme Court

BC Supreme Court fast track rules that apply to actions which will likely take 2 or less days of trial time.

Rule 66 applies to actions which will likely take 2 or less days of trial time. For Rule 66 to apply, either the plaintiff or the defendant must opt for fast track at the time of the Statement of Claim or Statement of Defence. Features of Rule 66 include:

  • Discovery is limited to two hours per party.
  • There are no interrogatories.
  • No jury trials.
  • The trial date must be applied for within four months of the case going on Fast Track. The date assigned for trial will be within four months of the date of application.
  • Parties are required to file a trial agenda which will set out how the two day trial is to proceed.
  • Costs are set at fixed amounts.

Rule 66 grew out of the BC Supreme Court's Litigation Management Committee discussion of a multiple track system. The Committee was comprised of members of the bar, the court, representatives of the federal and provincial Attorneys-General and the public. Submissions were received from members of the legal profession, and drafting help was received from the Rules Revision Committee. The fast track rules began as a pilot project running from September 1, 1998.

In its November 2006 report, the BC Justice Review Task Force made a number of recommendations for the re-writing of the Supreme Court Rules. After several drafts and consultations, it was announced that the new civil and family rules have been adopted and will be fully implemented July 1, 2010.

Part 15, the new fast track litigation rule, combines old Rules 68 and 66, governing expedited litigation and fast track litigation, respectively, "to provide a single simplified and fast procedure when the amount in controversy is $100,000 or less or when the trial of the action can be completed in three days or less" (Key Features at 3).

The purpose of Fast Track litigation is to reduce delays and the cost of litigation of actions which can be completed in two trial days.

In a 2003 Advocate editorial, Rule 66 was praised as a "versatile and useful tool... placed in the hands of litigators wishing to have a civil dispute of modest dimensions adjudicated in a speedy, comparatively inexpensive, yet just manner." (Entre Nous)

According to the Justice Review Task Force reportExploring Fundamental Change, a Supreme Court evaluation found that Rule 66 was not successful in fully achieving its objectives. Further evaluation of economical litigation alternatives led to the implementation of the Rule 68 Expedited Litigation Project.

Permanent implementation

  • expedited litigation
  • rules of court
  • Supreme Court of British Columbia
1998 Fast Track procedure implemented in Vancouver, New Westminster and Kamloops as a pilot project
2002 Rule 66 took effect province-wide.
July 1, 2010 Projected implementation of new Rules, replacing Rule 66
1998 BC Fast Track Litigation (Rule 66)

British Columbia

BC Supreme Court

BC Supreme Court fast track rules that apply to actions which will likely take 2 or less days of trial time.

Rule 66 applies to actions which will likely take 2 or less days of trial time. For Rule 66 to apply, either the plaintiff or the defendant must opt for fast track at the time of the Statement of Claim or Statement of Defence. Features of Rule 66 include:

  • Discovery is limited to two hours per party.
  • There are no interrogatories.
  • No jury trials.
  • The trial date must be applied for within four months of the case going on Fast Track. The date assigned for trial will be within four months of the date of application.
  • Parties are required to file a trial agenda which will set out how the two day trial is to proceed.
  • Costs are set at fixed amounts.

Rule 66 grew out of the BC Supreme Court's Litigation Management Committee discussion of a multiple track system. The Committee was comprised of members of the bar, the court, representatives of the federal and provincial Attorneys-General and the public. Submissions were received from members of the legal profession, and drafting help was received from the Rules Revision Committee. The fast track rules began as a pilot project running from September 1, 1998.

In its November 2006 report, the BC Justice Review Task Force made a number of recommendations for the re-writing of the Supreme Court Rules. After several drafts and consultations, it was announced that the new civil and family rules have been adopted and will be fully implemented July 1, 2010.

Part 15, the new fast track litigation rule, combines old Rules 68 and 66, governing expedited litigation and fast track litigation, respectively, "to provide a single simplified and fast procedure when the amount in controversy is $100,000 or less or when the trial of the action can be completed in three days or less" (Key Features at 3).

The purpose of Fast Track litigation is to reduce delays and the cost of litigation of actions which can be completed in two trial days.

In a 2003 Advocate editorial, Rule 66 was praised as a "versatile and useful tool... placed in the hands of litigators wishing to have a civil dispute of modest dimensions adjudicated in a speedy, comparatively inexpensive, yet just manner." (Entre Nous)

According to the Justice Review Task Force reportExploring Fundamental Change, a Supreme Court evaluation found that Rule 66 was not successful in fully achieving its objectives. Further evaluation of economical litigation alternatives led to the implementation of the Rule 68 Expedited Litigation Project.

Permanent implementation

  • expedited litigation
  • rules of court
  • Supreme Court of British Columbia
1998 Fast Track procedure implemented in Vancouver, New Westminster and Kamloops as a pilot project
2002 Rule 66 took effect province-wide.
July 1, 2010 Projected implementation of new Rules, replacing Rule 66
1998 BC Parenting After Separation Program

British Columbia

Ministry of Attorney General

Provincial Court

Two evaluations of the PAS program were conducted. A partial evaluation was completed in August 1999, and the final evaluation was released in October 2000. The first evaluation assessed the first two objectives of the program: 1) the extent of cooperation and willingness to participate in the PAS program by clients, and 2) participant satisfaction with the program. The final evaluation report assessed the third objective of the program: "To determine the impact of MPAS on litigation rates in the pilot jurisdiction compared to the impact of offering Parenting After Separation (PAS) on a voluntary basis." (Evaluation at 2)

BC Ministry of Attorney General program requiring families with disputes about child custody, access, guardianship or child support to attend a specialized class before appearing in court.

The PAS program is free to BC parents and other family members or guardians facing access, custody, guardianship, and support issues. The class is three hours long and focuses on encouraging families to make decisions that take into consideration the best interest of their children.

The PAS program aims to provide parents with information on the following:

  • How children deal with separation and how parents could provide support.
  • How parents experience the separation process.
  • How to maintain a healthy parent-child relationship.
  • How to address safety issues which may arise.
  • What options are available to aid the decision making process.
  • How to use mediation and conciliation services.
  • Where to get further information and help.

A workbook is also provided which contains further details on the above topics. It also contains opportunities for self-reflection through a series of worksheets to help plan the next steps.

The program is in effect in Burnaby, New Westminster, Surrey, Vancouver, Kelowna, Prince George, Abbotsford, Victoria, Nanaimo and Kamloops.

The Parenting After Separation (PAS) program began as a pilot project at four locations in 1994. Initially, the program was voluntary. In 1998, a pilot project was launched in the Burnaby and New Westminster provincial courts requiring families with disputes about child custody, access, guardianship or child support to attend PAS before appearing in court. As a result of an evaluation report, PAS was expanded to a number of other locations between 1999 and 2000. The expansion saw PAS shift from strictly voluntary to mandatory for certain types of disputes. The requirement to attend a PAS session is described in Rule 21 of the Provincial Court (Family) Rules. In October 2000, the Ministry of Attorney General published a final evaluation report on Mandatory Parenting After Separation (MPAS). The project was generally deemed to have a positive impact on families and the efficient resolution of cases. In 1998, some Lower Mainland communities began to offer PAS sessions in Cantonese, Mandarin, Punjabi and/or Hindi.

The Ministry of the Attorney General introduced the PAS program in response to difficulties faced by the courts, parents, and children in the context of family separations. PAS was designed to assist parents in making informed decisions during the separation process. By addressing the emotional and legal aspects of a separation, the program aims to reduce conflict and educate parents about the advantages of alternatives to the courts.

The August 1999 program concluded that:

[Survey Participants] reported that the PAS session helped them to understand the separation process and how to resolve disputes without going to court. It also helped them to focus on their children's needs. Most said they learned for the first time how the court decides on child support issues, how communication skills can help reduce conflict between people, and what services are provided by family justice counsellors.

Of the participants who completed the survey:

  • Seventy-eight per cent reported they were very or somewhat satisfied with the session they attended
  • Eighty-six per cent said they would recommend the session to other separating or divorcing parents
  • Eighty-three per cent agreed that all parents or guardians going through a separation or divorce should have to attend a PAS session.
Bulletin.

The Final Evaluation included an analysis of the program both before and after the provincial court rule changes which mandated PAS. The results were fairly similar, however, by making the program mandatory, the positive impact of PAS was more marked. Generally, the report found that MPAS resulted in a reduction and improvement in caseflow at the family court. There was also increased awareness of alternative dispute resolution options and the impact of separation on their children.

Permanent implementation

  • British Columbia Ministry of Attorney General
  • education
  • family law
  • litigants
  • mandatory programs
  • pre-trial procedure
  • Provincial Court of British Columbia
1994 Voluntary PAS program offered at 4 locations
1998 Mandatory PAS program pilot project in Burnaby and New Westminster
1999 - 2000 Mandatory PAS program was expanded to other locations in BC
1998 BC Small Claims Court Mediation Program (Rule 7.2)

British Columbia

BC Dispute Resolution Practicum Society

Small Claims Court

Small Claims Court rule of court establishing a mediation program.

CMP operates in five Small Claims registries: Nanaimo, Surrey, North Vancouver, Victoria and Robson Square, Vancouver (but only in respect of a disputed claim for which the notice of claim that started the proceeding was filed at Robson Square before November 26, 2007).
 

Referrals

Under the Practice Direction that preceded the Rule, referrals to the CMP came from four sources:

  • voluntary election by the parties;
  • referral by a judge at a settlement conference;
  • mandatory referral of all construction cases; and
  • mandatory referral by date of reply.

Referrals to mediation differ by each registry but there is an overall referral rate of 25% of the total caseload from the CMP registries.
 

Outcomes

Preliminary numbers from a UBC study show that settlement rates for the four registries for mandatory mediations are 56%. For voluntary mediations settlement rates are 67%. Average satisfaction with the conduct of the mediation is 4.32 on a 5 point scale; 91% of participants indicate that they would use mediation again.
 

Small Claims Rule 7.2

On April 28, 2003, a new Small Claims Rule replaced the practice direction, bringing greater clarity to the mediation process. It will also help integrate mediation with the work of the Court and the Registry.

The new rule reflects many aspects of the practice direction which has been in place since the inception of the Program. However, there are some significant additions to the rule. These include provisions setting out the consequences of not attending a mediation, as well as enforcement and confidentiality provisions...

[T]he mediation rule applies to the following disputed claims:

  • Claims that fall within a class of cases described in Schedule D - Schedule D currently includes construction cases and a specified number of cases from each registry by date of reply.
  • Claims referred to mediation from a settlement conference, with the consent of the parties.
  • Claims for which a Notice to Mediate has been filed with the registry.

Schedule E describes classes of cases to which the rule does not apply and includes claims arising from a motor vehicle accident.

When a case is referred to mediation, the mediation coordinator will send a Notice of Mediation Session to each of the parties. Parties may apply to a judge for an exemption from the requirement to attend the mediation. The consequences of not attending a mediation session are similar to those for not attending a settlement conference.

When parties reach full or partial agreement, they must file an agreement form. The agreements are drafted by the mediators and signed by the parties at the mediation. If the parties do not reach agreement on all issues, the registry sets a date for settlement conference. The Rule includes enforcement mechanisms.

Website

The Court Mediation Program (CMP) was established in 1998. The process was initially governed by a Practice Directive, which was replaced on April 28, 2003 by the new Small Claims Rule 7.2, Mediation for Claims up to $10,000. The program is funded by Ministry of Attorney General and administered by BC Dispute Resolution Practicum Society.

The objective of CMP is "to enlarge the pool of qualified mediators in B.C.; to enhance access to justice; and to relieve backlog pressure on the court. Up until now, the CMP has been operating in 3 registries, Surrey, Robson Square and Nanaimo, on the authority of practice directions issued by the Office of the Chief Judge of the Provincial Court" (Website).

Permanent Implementation

  • British Columbia Small Claims Court
  • mediation
  • rules of court
1998 CMP established
April 2003 Practice Directive replaced by Rule 7.2
1998 Court of Appeal of Québec Mediation Service Program

Quebec

Court of Appeal of Québec

Court of Appeal of Québec's voluntary mediation program.

The Program Features
The mediation service is open to all parties involved in civil, commercial or family litigation at the Appeal Court level. However, certain subject matters may not prove to be suitable (for example jurisdictional issues). Litigation in constitutional or criminal law is obviously excluded from mediation.

In all cases, both parties must sign a "Joint Request for mediation" form. This is the one and only form that has to be filled out and filed. The form is forwarded to the office of the Court as soon as possible after filing the notice of appeal. At any time before the court hearing the parties may request a mediation session. Parties not represented by counsel are also admissible to the mediation program.

It should be stressed that there are no additional costs to the parties. The Quebec Court of Appeal funds the program through its regular staff and the program operates under the general supervision of the Chief Justice.

Filing the request for mediation automatically suspends appeal proceedings. However, either party may decide to abandon the mediation program and return to the ordinary appeal procedure at any time.

A program manager receives the request and opens a file which is kept entirely separate from the Court of Appeal files. The program manager and the judge conciliator screen the request for mediation to evaluate the likelihood of settlement and the suitability of the issues for mediation. When necessary a telephone conference is held by the judge conciliator. This is to discuss the issues on appeal and the status of the negotiations in order to ensure that the parties have a real interest in a mediation. The telephone conference is also required to ensure that mediation is not being sought merely as a pretext to buy time in the ordinary court proceedings.

The parties must agree on one set of documents which together constitute the mediation file...The supporting documents are usually forwarded to the presiding judge-mediator usually one week prior to the date set for mediation. In practice, the mediation process, being very flexible, adapts to each individual situation.

The Scheduling of Mediation Sessions
A mediation session is scheduled within thirty days following reception of the request in writing. On average only one three hour session is required and it is usually held early in the appeal process. This is so the parties can avoid further major legal expenses and delays in obtaining official transcripts and preparing factums and annexes.

The Ground Rules and Procedure
At the beginning of a mediation session, the judge determines ground rules and procedure with the cooperation of the parties and their attorneys. Each mediation session is unique. The parties will structure it the way they want. It is important to stress this element because the heart of the mediation system and the probable reason for its success is it's capacity to be supple and adaptable.

The judge discusses a possible settlement jointly with the parties and their attorneys, but may meet with both parties together without their lawyers. The judge explores the possibilities, avoiding as much as possible expressing an opinion with regard to the judgement of the trial division. However, in some circumstances, the judge will feel at ease to express an opinion regarding a judgment rendered by the trial division. In those cases, the judge mediator may readily identify an oversight or weakness in the judgment. This, in an effort to further clarify the legal issues for the parties and to bring about a better understanding of what is at stake. However, as a general principle, the judge must totally abstain from giving an opinion on the validity of the judgment and leave the merits of the appeal for the Court...The judge can recommend specific solutions for settlement, but will never compel the parties to accept a settlement.

Discussions are not limited to the specific issues raised in the notice of appeal and some time is allowed for the parties to settle any related issues arising between them in other cases. Again, flexibility is encouraged and provided by conciliation and permits the parties to find a global settlement.

The Confidential Nature of Proceedings
The confidential nature of mediation proceedings is crucial to productive negotiations. As a matter of ethics, the parties voluntarily commit, on the request for conciliation form, to keep all matters strictly confidential and to refrain from disclosing the substance of all discussions. There are no transcripts or summaries of the mediation session and any notes taken by the judge mediator are eventually shredded.

The Settlement Agreement
If the parties are successful in resolving their differences through mediation, a settlement agreement is drafted by the attorneys and signed by the parties. The settlement agreement is then ratified by an independent panel of three judges of the Court of Appeal at no extra costs and without the need of a written motion. Once ratified, the judgement is as enforceable as any other judgement of the court. In a few cases where settlement is not achieved in a first session, the parties may be granted a short delay to further consider their positions and return for a follow-up session which are often successful. Even in failure, the mediation exercise will have permitted the parties to better understand the issues and this will prove to be useful in the preparation of the factums and in reducing the time of a hearing. Consequently, if the mediating session does not end up with settlement, the exercise will prove to be beneficial in providing efficient case management (CSP).

In 1998, under the auspices of the Quebec Court of Appeal, the conciliation service program was implemented as a pilot project at the appellate court. Judicial mediation was a first in Canada and is still believed to be the only program of its kind anywhere. Judicial mediation refers to the fact that the process involves the full and active participation of an Appeal Court judge at each stage of the process. The Court of Appeal adopted officially the Mediation Service Program in October 1999, keeping the parameters set in the pilot project (CSP).

Taking into account the judicial evolution in western society, many courts, including the Court of Appeal of Quebec, have decided to initiate, within the traditional system, a system of judicial mediation with a view to reinvesting in the parties themselves their power to decide their dispute. As guardians of public order and democratic values, it is fitting that the judiciary participate with the community in transforming the classical justice system so that it is more reflective of social values. In doing so, the justice system bears witness to a lessening of the distance between the judiciary and the public and to the principle that society is better served when it is better understood (Summary).

Within two years of the program's existence, "over 200 cases ha[d] been conciliated in civil, commercial and family matters and over 80% ha[d] been settled successfully, after one mediation session" (Summary).

Permanent Implementation

  • Court of Appeal of Québec
  • mediation
1998 Program implemented as a pilot project at the Court of Appeal
October 1999 Program made permanent

 

1998 Federal Court Rules - Case Management and Dispute Resolution Services (Part 9)

Federal

Federal Court of Canada Rules Committee

All Federal courts

Mandatory case management system in the Federal Court that employs three case management tools: status reviews, specially managed proceedings, and dispute resolution.

New Rules

Under the Federal Court Rules, all cases before the Court are subject to case management. The Federal case management system employs three case management tools: status reviews, specially managed proceedings, and dispute resolution.

Status reviews are hearings convened by the Court when parties fail to reach specific steps within certain time limits [r. 380-382]. The Court automatically fixes a date for a status review if pleadings are not closed within 180 days of the issuance of the statement of claim, or where no requisition for a pre-trial conference has been filed within 360 days. For appeals, it is 180 days from the issuance of the notice of application or appeal. A status review may be ordered by a case management judge at any time [r. 380(3)]. At a status review, an appellant or applicant may be required to:

  • To show cause why the proceeding should not be dismissed for delay and dismiss for delay if the Court is not satisfied.
  • To show cause why default judgement should not be entered and enter a default judgement if the Court is not satisfied.
  • If the Court is satisfied that the proceeding should continue, it can order it to continue as a specially managed proceeding.

Specially managed proceedings [r. 383-385] are cases taken out of the usual Court flow and proceed according to directions given by the case management judge. The case management judge may:

  • give any directions that are necessary for the just, most expeditious and least expensive determination of the proceedings on its merits;
  • fix the period for completion of subsequent steps in the proceedings notwithstanding any period provided for in the Rules;
  • fix and conduct any dispute resolution or pre-trial conferences that he or she considers necessary; or subject to subsection 50(1) hear and determine all motions arising prior to the assignment of a hearing date;
  • or may order that a status review be held in accordance with Rule 382.

Dispute resolution rules are also incorporated into the Rules [r. 386-391]. A judge may order a dispute resolution conference with respect to any issue in the proceeding. The conference has a 30 day limit and is conducted by a case management judge or prothonotary. These conferences can be mediations, an early neutral evaluation or a mini trial [r. 387]. Where a settlement of all or part of the proceedings is reached at a dispute resolution conference, it must be recorded in writing, signed and filed within 10 days of the settlement being reached [r. 389]. If a resolution is not obtained or only partially obtained, the case goes to Court. A case management judge who conducts the dispute resolution conference cannot preside at the hearing unless all parties consent [r. 391].
 

2007 Amendment

The amendment was put in place:

(1) To align the status review and case management rules with the current practice of the Federal Court of Appeal and the Federal Court in order to enhance the efficiency of the courts.

(2) To amend the rules to allow one or more prothonotaries to be appointed as case management judge.

(3) To amend the rules to allow the Court to order at any time that a case proceed as a specially managed proceeding.

(4) To make an amendment stating that the case management judge or prothonotary referred to in paragraph 383(c) can rule on any matter raised before the specially managed proceeding is assigned, unless the Court directs otherwise, and to allow the judge or prothonotary to order a status review at any time.

2007 Gazette

In 1993, the Federal Court Rules Committee commenced a review of the Federal Court Rules. The purpose of this review was to bring the Rules in line with provincial rules, and make them accessible and easier to understand. The Committee hosted many consultations with various stakeholders. In January 1998, the new Rules were approved by the Rules Committee and subsequently by the Governor in Council on February 5, 1998. The new rules came into force on April 25, 1998.

Part 9 was reviewed and a proposal for amendments was published on November 18, 2006 in the Canada Gazette. Most of the amendments were minor, more in the nature of clarification or reinstatement of pre-1998 Rules that were omitted in the 1998 Rules, or past practices that were not properly reflected in the 1998 Rules.

The amendments to the Federal Courts Rulesconcerning Case Management/Status Review based on the 2006 proposal were registered on September 27, 2007 and came into force on that date.

These rules are designed to grant the Court a more active role in supervising proceedings and encouraging resolutions. By allowing the Court to manage cases, the pace of litigation is no longer controlled exclusively by the parties, and as a result cases can be resolved in an efficient manner.

Permanent implementation

  • case planning
  • court-annexed alternative dispute resolution
  • Federal Court of Canada
  • mandatory programs
1993 Federal Rules Committee commenced review
January 1998 New rules approved by Rules Committee
February 1998 Governor in Council approved new Rules
April 1998 New Rules came into force
November 2006 Proposed Amendments to Status Review published
September 2007 Amended Rules came into force
1998 Federal Court Rules - Simplified Actions (Rules 292 - 299)

Federal

Federal Court of Canada Rules Committee

Federal Court

Mandatory simplified procedure for Federal Court actions of up to $50 000, or at a party's request for actions of higher amounts.

A Simplified Action can apply either automatically, by agreement of the parties, or by Order of the Court. If a claim does not exceed $50,000 then the rules apply by default [r.292(a) and (b)]. If both parties are in agreement that the Simplified Action rules are to apply, then the matter will proceed under those rules [292(c)]. If an agreement is not obtained, a party can apply to the Court to have the Simplified Action rules apply [292(d)].

The plaintiff must state the amount of their claim and whether it exceeds $50,000 [r.182(b)]. Plaintiffs who exaggerate their claims in an attempt to avoid the rule may be subject to consequences in cost [r. 293 and 400(3)(n)].

Simplified actions alter the general procedures governing actions in the following ways:

  • A list of documents may be served instead of an affidavit of documents [r. 295].
  • Examinations for discovery must be in writing, and limited to 50 questions [r. 296].
  • There is no motion for summary judgement allowed [r. 297].
  • With the exception of some threshold motions, all other motions may only be brought at the pre-trial conference [r. 298].
  • Evidence in chief at trial is to be adduced by affidavit [r.299].
  • Reduced Registry fees are payable in respect of filings.
  • The times prescribed for service and filing of affidavits before trial are shortened in comparison to the general procedure. The plaintiff's affidavit evidence must be filed and served at least 20 days before trial [229(1)(a)]. The defendant's affidavit evidence must be filed and served at least 10 days before trial [299(1)(b)].

Affidavits of Expert witnesses have an earlier deadline than regular affidavits; expert evidence must be served 60 days before trial, and rebuttal affidavits are to be served 30 days before trial. Rule 84 providing for cross-examination on affidavits does not apply under simplified actions. The reply evidence to the plaintiff's evidence may be adduced orally, including that of an expert witness.

In 1993, the Federal Court Rules Committee commenced a review of the Federal Court Rules. The purpose of this review was to bring the Rules in line with provincial rules, and make them accessible and easier to understand. The Committee hosted many consultations with various stakeholders. In January 1998 the new Rules were approved by the Rules Committee and subsequently by the Governor in Council on February 5, 1998. The new rules came into force on April 25, 1998.

Often, the costs associated with litigation exceed the amount claimed, particularly in cases worth $50,000 or less. Therefore the rules are 'simplified' to reduce costs and make the litigation proportional to the amount being claimed.

Permanent implementation

  • expedited litigation
  • Federal Court of Canada
  • mandatory programs
1993 Federal Rules Committee commenced review
January 1998 New Rules approved by Rules Committee
February 1998 New Rules approved by Governor in Council
April 1998 New Rules came in force
1998 Prince Edward Island Simplified Procedure (Rule 75.1)

Prince Edward Island

Rules Committee

Supreme Court of Prince Edward Island (Trial Division)

Rule establishing mandatory simplified procedure for actions of up to $25 000 in Supreme Court of Prince Edward Island.

PEI's simplified procedure rules reduce some of the steps typically required in the general procedure, such as discovery. These measures save costs for litigants and consequently make the courts accessible. The following is a description of some of the requirements stipulated in Rule 75.1:

  • For an action to qualify under the simplified procedure rules, a plaintiff's claim must be exclusively for money, real property, or personal property, and the amount claimed should be equivalent to $25,000 or less.
  • Within 30 days of the close of pleadings, a party to an action must disclose all relevant documents to all other parties. This disclosure also includes the names of any witnesses (including experts) or potential witnesses, and a summary of their evidence. Failure to disclose will result in the evidence being excluded from trial.
  • The following are not permitted in under Rule 75.1: Examination for discovery under Rule 31.03 or 31.10; Examination for discovery by written questions and answers under Rule 35; Cross-examination of a deponent on an affidavit under Rule 39.02; Examination of a witness on a motion under Rule 39.03.
  • Rule 75.1 allows the dismissal of cases where if more than 180 days have elapsed since the day of the originating process; no statement of defence has been filed; the action has not been disposed of by final order or judgement; the action has not been set down for trial or summary trial; and the registrar has given 45 days notice that the action will be dismissed as abandoned.
  • A case may also be dismissed if more than 150 days have passed since the filing of the first statement of defence or notice of intent to defend; the action has not been disposed of by final order or judgement; the action has not been set down for trial or summary trial; and the registrar has given 45 days notice that the action will be dismissed as abandoned.
  • Settlement Discussions (R. 75.1.08) are required within 60 days after the filing of the first statement of defence or notice of intent to defend. The parties meet to discuss whether all documents relating to any matter at issue have been disclosed; and settlement of any or all issues is possible.
  • After the close of pleadings, a party may move before a judge with supporting affidavit material for summary judgement (R. 75.1.07(1)).
  • All parties must attend the pre-trial conference which can be conducted in person, or through video conferencing if an undue amount of travel is required. Before the pre-trial conference all relevant documents must be filed and delivered. At the pre-trial conference, the parties must agree on whether the trial should be a regular trial or summary trial. If they cannot agree, the judge will determine the mode of trial. The judge will also set the timetable for the delivery of affidavits.
  • At a summary trial, evidence is given by affidavit. Parties adverse in interest may cross-examine the deponents of the affidavits, followed by a re-examination of up to 10 minutes. Oral arguments are limited to 45 minutes.
  • Rule 75.1 provides for cost awards if a party fails to adhere to the rules.

Other Considerations

It is the procedure under Rule 75.1 which is meant to be simple - not the issues in the cases. The procedure is available for any action, except those referred to in Rule 75.1.01(1)...

The threshold test for granting summary judgment in an action brought under the Simplified Procedure Rule is much lower than the threshold test for obtaining summary judgment under Rule 20. If the court is satisfied there is sufficient material on which to resolve that issue on the motion, the court may grant summary judgment under Rule 75.1.07, notwithstanding there may be a genuine issue for trial.

Annotated Rule at 11

The Supreme Court of P.E.I. adopted the Ontario Rules of Civil Procedure in 1990. A substantial number of written decisions has been given by the Court addressing issues of interpretation and application of the Rules.

Rule 75.1 is modelled on r.76 of the Ontario Rules of Civil Procedure. There are two major differences between PEI's Rule 75.1 and Ontario's Rule 76:

  • In Ontario, simplified procedure is mandatory in qualifying cases worth $50,000 or less, exclusive of interest and costs; whereas, in PEI's Rule, the mandatory limit is $25,000.
  • PEI's Rule 75.1.03(2) requires the production of witness "will say" statements; whereas the corresponding Ontario Rule 76.03(2) does not.

The Prince Edward Island Rules of Civil Procedure were modelled on Ontario's rules, with Rule 75.1 being implemented for the same reasons as Ontario's Rule 76. The lack of proportionality between the amount being sued for and the cost of litigation places litigation outside the reach of most ordinary Canadians. The Zuber Report, which was considered by the Ontario Simplified Rules Subcommittee, demonstrated that for claims within the $25,000 monetary jurisdiction of the District Court the winning litigant was left with only 20-30% of his or her judgement after paying the legal fees.

Permanent implementation

  • expedited litigation
  • mandatory programs
  • rules of court
  • Supreme Court of Prince Edward Island (Trial Division)
1998 Simplified Procedure rule introduced
2001, 2003, 2004 Amendments made
1998 Québec Civil Procedure Review

Quebec

Quebec Minister of Justice

All Quebec Courts

The process of reforming the civil procedure continued after the above mentioned changes. In August 2002, public hearings were held on the departmental proposals contained in the report entitled Mesures visant à instituer un nouveau Code de procédure civile et comportant une proposition quant aux deux premiers livres de ce code.

The legislation implementing the 2003 amendments included the requirement for an assessment of the effects of the reform three years after its coming into force. Justice Department officials met with the Chief Justices, senior regional judges, and representatives of the Bar. A report titled Rapport d'évaluation de la Loi portant réforme du Code de procedure civile was released in April 2006.

Overview of the review of Quebec's Code of Civil Procedure recommended comprehensive reforms.

In July 2001, the Comité de révision de la procédure civile released a report entitled La révision de la procédure civile : Une nouvelle culture judiciaire. The report proposed a comprehensive reform of Quebec's Code of Civil Procedure aimed at meeting the following objectives:

  • respect of human rights,
  • empowerment of parties,
  • increased intervention of judges,
  • proportionality of proceedings, and
  • openness to information technologies.

A year after the report, the Minister of Justice tabled a bill to reform the Code of Civil Procedure and implement its recommendations. The National Assembly passed the Bill into law in June 2002. The changes introduced by the bill targeted areas such as the institution of proceedings, proceedings in appeal, recovery of small claims, and class action suits.

Specific recommendations and reforms made as part of this process are listed below, under Related Reforms.

The Quebec Code of Civil Procedure was not revised since 1965. As a result, the Minister of Justice in June 1998 created a committee to assess civil procedure reforms.
 

The numerous procedural innovations that have been integrated into the Code over the years seem to have been deposited like layers of sediment, making civil procedure more complex and defeating the ultimate goal of simplifying it. In 1998, the Minister of Justice established a committee to review the Code with a mandate to propose new procedure to make civil justice speedier, more efficient, less adversarial, and less expensive in time, energy and cost for both litigants and the justice system itself.

Longtin at 2.
 

Permanent implementation

  • Québec Courts
  • reform
  • rules of court
June 1998 Comité de révision de la procédure civile established with a mandate to reform civil procedure.
July 2001 Committee's Report released.
June 2002 Minister of Justice introduced bill to reform Quebec's Code of Civil Procedure
1 January 2003 New Code came into force
2006 Evaluation Report released.

 

longtin-en.pdf
1999 Alberta Discovery Amendments - Cost of Justice

Alberta

Rules of Court Committee

Court of Queen's Bench

Overview of amendments to Alberta's Queen's Bench Rules of Court governing discovery process and procedures affecting the cost of justice, 1999-2008.

  • Rule 187: Introduced in 1999, this rule requires third parties and responding parties to file their affidavit of records within 90 days of their filing of a statement of defence. The rule also places other time limits for the purpose of reducing delays and limiting the discovery process.
  • Rule 188.1: Grants the court discretion with the specified timelines so that depending on the complexity of the case, courts may adjust the rules permitting late or earlier filing of affidavits.
  • Rule 189: Requires that an affidavit of records precede discovery, with the idea that increased disclosure will allow the process to proceed much more efficiently.
  • Rule 190: If a party fails to adhere to the timeline restrictions, costs will be awarded to the other party adversely affected by the delay. Rule 190.1 allows for sanctions other than costs being awarded.
  • Rule 200(1.2): A person is only required to answer "relevant and material questions". The most important change in the 1999 amendment to this rule was limiting the scope of questioning permissible at an examination for discovery. The old rule limited discovery questions to those "touching the matters in question". The new rule requires a witness to "answer only relevant and material questions" creating a narrower scope for questions.
  • Rule 200(2) - The court may on application limit the number of employees of any party who may be examined, and may set aside any examination the court decides is unnecessary, improper, or vexatious.
  • Rule 205: All records which a party could be required to produce at trial must be produced at the examination for discovery. This rule was introduced in 1999 to increase disclosure and reduce surprises at trial.
  • Rule 662 - Streamlined Procedure: 662(1) and (5) - Limits examinations for discovery to 6 hours, allows for written interrogatories in place of oral testimony with a limit of a 1000 words.
  • Court of Queen's Bench Family Law Practice Note No. 6: Notice to Reply to Written Interrogatories: The purpose of this Practice Note is to avoid or reduce the need for examination for discoveries through the exchange of information in writing. ThePractice Note introduces a new form titled Notice to Reply to Written Interrogatories. This form allows for a maximum of 30 questions.

The 1999 amendments were the result of the recommendations of a joint Bench-Bar committee. Subsequently, these recommendations were adopted by the Rules of Court Committee. The Law Society issued a memorandum after the rules came into force stating overall satisfaction, but had some concerns. Some of these concerns were addressed and amended. Other concerns were more complex. 

As a result, the Alberta Law Reform Institute began to examine the discovery process as part of its Alberta Rules of Court Project. It released two reports specifically addressing discovery issues. Substantially revised discovery rules were released in March 2007. Since then, the new rules of court have been subject to some review and adjustment. The final Proposed Rules of Court were released in October 2008.

There was a general dissatisfaction with the discovery process in Alberta prior to 1999. Problems included concerns about document discovery and the production of unnecessary documents, the need for automating certain procedures, instituting sanctions, and narrowing the scope of discovery questions.

Permanent implementation

  • Alberta Court of Queen's Bench
  • cost of justice
  • discovery
  • reform
  • rules of court
1999 Amendments came into effect
2002 Discovery Memo 1 released
2002 Discovery Memo 2 released
2007 Draft Rules released
2008 "Proposed Rules of Court" released
1999 Legal Aid Ontario Family Law Expanded Duty Counsel

Ontario

Legal Aid Ontario

Hamilton, Oshawa, and London Family Courts

LAO engaged Prairie Research Associates (PRA) Inc. to carry out an evaluation of the pilot projects over three years. The evaluation of the Family Law EDC Pilot Projects had three objectives:

  • To compare cost and time efficiencies among the three Family Law Expanded Duty Counsel models.
  • To compare cost and time efficiencies between the Family Law Expanded Duty Counsel model and the existing duty counsel model of service delivery.
  • To compare quality of service among the three Family Law Expanded Duty Counsel models, and between the Expanded Duty Counsel model and the traditional duty counsel model.
Evaluation at ii.

Legal Aid Ontario duty counsel services that emphasize advancing cases toward resolution by giving duty counsel the capacity to carry client files and provide continuity of representation.

Whereas the traditional model is designed to help clients move to the next stage in the legal process, the expanded model emphasizes advancing cases toward resolution. In the expanded model, duty counsel spend time and effort on behalf of clients in an attempt to assist them in bringing closure to their matter or major elements of their matter. The expanded duty counsel model, therefore, has three important features that distinguish it from the traditional model and that are intended to enable the model to pursue this central principle: the capacity to create and carry client files; the ability to provide continuity of representation; and the capacity to draft court documents.

The three EDC pilot projects are characterized by different combinations of staff and per diem lawyers. In Hamilton, the pilot consists of one staff lawyer, a large per diem panel (55 to 60 lawyers), and 1.5 support persons; in London, the pilot consists of two staff lawyers, a small per diem panel (12 to 15 lawyers), and one support person; and in Oshawa, the pilot has three staff lawyers, a small per diem panel (approximately 22 lawyers), and one support person. At each site, one of the staff lawyers serves as the Coordinator, whose main responsibilities include general office administration and management, per diem scheduling based on demands within their respective courts, and supervision and training of per diems.

Evaluation at i.

In 1999, Legal Aid Ontario (LAO) implemented the Family Law Expanded Duty Counsel (EDC) Pilot Projects. The pilot projects, in Hamilton, London, and Oshawa, were designed to test the effectiveness and efficiency of an alternative to the traditional facilitation approach to duty counsel service.

Evaluation at i.

The evaluation identified a strong need for EDC services, with many clients being unable to either afford a lawyer or qualify for obtain a legal aid certificate. The service was rated positively by a large majority of stakeholders, providing file continuity, continuity of representation, and better coordination (Evaluation at ii-iii.)

Permanent implementation in Hamilton, Oshawa and London

  • duty counsel
  • legal aid
  • Ontario Family Court
  • representation
November 1999 First Expanded Duty Counsel offices open in Hamilton and London
February 2000 EDC office in Oshawa opens.
October 2002 Prairie Research Associates preparesEvaluation for Legal Aid Ontario.
1999 Legal Aid Ontario Family Law Offices

Ontario

Legal Aid Ontario

A formal review of the pilot project was conducted in 2002. 
 

The information needs of this evaluation were addressed through the following types of data collection and analysis:

  • Reviews by a family law expert of the complexity of samples of cases completed by the FLOs and by the private Bar on certificate in Toronto, Ottawa, and Thunder Bay.
  • A telephone survey of clients of the FLOs and of the private Bar on certificates. The main aim of this survey was to measure client satisfaction as an indicator of service quality.
  • A mail survey of the family Bar in Toronto Ottawa, and Thunder Bay. The main goal of this survey was to examine the family bar's perspectives on the quality of the work of the FLOs and of the impact of the FLOs on their communities.
  • Cost data for services provided by the FLOs and for family certificate work completed by the private Bar in the three cities.
  • Interviews with key informants in each location which focussed on perceptions of the role played by the FLOs in local service delivery, the relationship of the FLOs to the private Bar and progress made by the FLOs in achieving their objectives.
Evaluation at i.

Direct service delivery of family legal aid representation in Ontario.

The Family Law Offices employ from 2 to 5 full-time equivalent lawyers, as well as paralegals and administrative staff. Clients must first obtain a legal aid certificate, which they may take either to a private lawyer or to one of the Family Law Offices in Toronto, Ottawa, and Thunder Bay.

...OLAP (as it was then known) was instructed by the Legal Aid Committee of the Law Society (its governing body up until April 1, 1999) to prepare a proposal for a series of pilot projects to test alternative service delivery models. The aim of these pilot projects was to determine whether:

  • The Plan can improve access to services.
  • Services can be provided more cost-efficiently.
  • The quality of services provided can be improved through the exercise of more control over who provides these services and the qualifications they have, and through more intense monitoring of the services clients receive.

In February 1998, the Law Society gave approval for Plan management to proceed with an extensive list of pilot projects in the family, immigration, and other civil and young offender service areas. 

Prominent among the list of alternative service delivery approaches approved for pilot testing in the family law area were three family law staff offices located in Toronto, Ottawa, and Thunder Bay. These pilot staff family law offices opened in May and June of 1999 and were to run for three years, at a minimum.

Evaluation at 2.

Historically, the Ontario Legal Aid Plan (OLAP) relied almost exclusively on the private Bar to provide services to eligible applicants for criminal and family legal aid. Direct service delivery by OLAP staff was limited largely to duty counsel services and to other poverty law services provided through the Plan's clinic system. 

This reliance on the judicare model to provide the bulk of its services in the criminal and family law areas came under extreme pressure in the mid-1990s as the Plan was forced to work within a fixed budget, and the demand for legal aid services rose.

Evaluation at 1.

The review of case complexity established the relatively greater complexity of the Toronto FLO caseload compared to the Toronto private bar certificate caseload, and the essentially equal complexity of the Ottawa and Thunder Bay FLO and private bar caseloads.

The survey of clients supports the general conclusion that, from the clients' perspective, the quality of services provided by the pilot FLOs was at least as high as that provided by the private bar on certificate.

The data from the Bar survey present a generally positive or at worst, neutral perception of the FLOs among private family lawyers in the three locations who have dealt with FLO staff lawyers as opposing counsel. The FLOs are generally seen as improving access to family law services, especially in Thunder Bay. Among lawyers familiar with FLO staff as opposing counsel, most reported perceiving no difference in service quality or competence of counsel.

Service cost contrasts across the three offices were stark. They ranged from well above private Bar certificate costs to somewhat below these costs. Completing family law cases at lower average cost than the current tariff dictates represents a significant achievement, given the current discontent with the tariff. In order for the FLOs to be consistently cost-competitive with the private bar on certificates, high levels of staff utilization and restricting the range of services provided to those typical of the private bar on certificate will be required.

Evaluation at ii.

Permanent implementation

  • family law
  • legal aid
  • Ontario Courts
  • representation
May 1999 Pilot project initiated
2003 Permanent implementation
1999 New Brunswick Small Claims Court

New Brunswick

Small Claims Court

Overview of the New Brunswick Small Claims Court.

The Small Claims Court of New Brunswick was established on January 1st, 1999. This court hears civil suits for debt or damages, return of personal property or a combination of those claims, where the value involved does not exceed $6,000.

On March 14, 2009, it was announced that the Small Claims Court will be eliminated as part of budget cuts included in the 2009-2010 New Brunswick Budget.

An act to repeal the Small Claims Act received royal assent on June 19, 2009. A new rule of court is being drafted to provide for filing and hearing small claims in the Court of Queen's Bench. Once this new rule of court is finalized, the new act will come into effect.

The province also plans to increase the small claims limit from $6,000 to $30,000.

In response to the March 14, 2009 announcement, CBA-NB issued a statement that it 
 

strongly opposes the announcement that the Province of New Brunswick has decided to eliminate the Small Claims Court and transfer small claims cases to the New Brunswick Court of Queen's Bench...

Small claims adjudicators were put in place in January of 1999 in order to reduce the backlog in the Court of Queen's Bench. "Prior to the appointment of adjudicators there were 1,600 small claims waiting to be heard by a Judge. It took months for a small claims matter to be heard" said Keyes [President of CBA-NB].

Transferring approximately 2,000 cases to the Court of Queen's Bench will quickly create backlogs and will significantly impair the efficiencies that are now present in the Court of Queen's Bench. "Litigants want their cases dealt with as quickly as possible. We fully expect that adding small claims to the already busy case load in the Court of Queen's Bench will cause serious delays in having all cases heard by the Court" said Keyes.

CBA Statement
  • New Brunswick Small Claims Court
February 1997 Small Claims Act assented to
January 1999 Small Claims Act came into force and Small Claims Court established
March 2009 Proposed elimination of the Court announced
June 2009 An act to repeal the Small Claims Actreceived royal assent
1999 Newfoundland and Labrador Mediation Pilot Project in Small Claims Court

Newfoundland and Labrador

Small Claims Court

Pilot project incorporating interest-based mediation into the small claims process and using articling students as mediators.

In 1999 the Small Claims Rules Committee decided to use third-year law students who were completing their articling as the mediators in the proposed mediation process. This obviated the need for any financing for the project as the mediation could be done on a volunteer basis; and as the law clerks were all members of the Law Society, there was already a regulatory body in place to maintain professional standards. At the time it was hoped that the law students would welcome a chance to be directly involved in the litigation process and that obtaining volunteers would not be a problem. This hope has come to fruition and the number of volunteers has, on some occasions, outstripped the number of cases to mediate. To date all of the law clerks in the bar admission course from 1999 to 2007 have participated in the process and all of them have reported they found the experience to be very useful.

We continued with the project this year [2008] despite a shortage of judicial resources which arose as a result of retirements and illness. We had a well attended organizational meeting with the law students in August and started to assign the mediation sessions in September. Not all of the 2008 class have had a chance to mediate as of the writing of this article but all of those who have completed a session reported that they enjoyed the experience and several have asked that they be given another mediation opportunity. The students since 1999 have been exposed to more ADR courses in law school and successive classes have grown much more comfortable in the role since the inception of the program. The settlement rate remains very high and it has been a great benefit to the many unrepresented litigants appearing in small claims court.

2008 Annual Report at 35

Results of the Mediation Process

On the litigation itself the success rate in terms of settling cases via mediation has not been high but it has been significant. On average, over the years, mediators have settled between 30 and 40 percent of the cases. Despite this, however, the majority of litigants have been positive about the process-finding that even if a full settlement of their case was not achieved, at least some of the issues were resolved and they were more prepared for trial. We had initially referred all cases to the medication process. Experience over the past six years has shown us that some cases are not amenable to mediation and will not settle. This has proved to be the case in motor vehicle accident cases. Generally speaking, before starting the court process these cases have already been through a form of mediation in that insurance adjusters have negotiated with the parties and further mediation or discussion between them at court is pointless. Most vehicle accident cases involve a determination of fault and turn on the findings of fact and parties are interested in having a trial and a determination being made by a Judge. As a result, the Small Claims Rules Committee has decided that this year, motor vehicle accident cases will no longer be mediated and instead will proceed directly to trial. All the remainder of the cases will still go through the mediation process.

2007 Annual Report at 34
 
 
 

In May of 1999 a "pilot" project was started in the Small Claims Court to incorporate interest-based mediation into the small claims process...Prior to introducing mediation the procedure was to hold a settlement conference pursuant to Section 10 of the Small Claims Act S.N.L. 1990. The settlement conference was chaired by the Judge and was essentially a first appearance to ensure that the parties were ready for trial. At the settlement conference, the Judge would explore the possibility of settlement with the litigants or make other orders such as default judgments in the event of a non-appearance but there was little opportunity for mediation.

2008 Annual Report at 35)
 
 

"The hope was that by using mediation fewer cases would go to trial and issues could be resolved at the settlement conference stage" (2008 Annual Report at 35).

The student experience compliments the bar admission course and it continues to be a very positive process for litigants, the Court, and the Bar. Interestingly our program has had an international effect. A delegation of judges from Eastern Europe was at the Court for a visit in the fall of 2007. They were extremely interested in our mediation program and we have since heard that they hoped to design a similar program to ours in their home courts utilizing their student Judges.

2008 Annual Report at 35

Ongoing pilot

  • law schools
  • mediation
  • Newfoundland and Labrador Small Claims Court
  • pilot projects
May 1999 Mediation plot project initiated
2007 Motor vehicle accident cases are no longer mediated
1999 Ontario Family Law Information Centres

Ontario

Ontario Ministry of the Attorney General

All Ontario courts

Ontario Ministry of the Attorney General courthouse family law information centres, offering information, limited legal advice, and other assistance to self-represented litigants.

All court locations have a Family Law Information Centre (FLIC). A FLIC is an area in the court house where you can get free information and help about issues related to separation and divorce and other family law matters. It is a good idea to get this information before making important decisions.

Guide at 2
The following services are available at the FLIC:

  • Court staff will provide information about the family court; court process; court forms; guides to procedure and how to get a lawyer
  • An Advice Lawyer (from Legal Aid Ontario) will provide 20 minutes of general legal information on family law matters free of charge regardless of eligibility, or case-specific advice to those who qualify financially
  • An Information Referral Coordinator (IRC) will provide information about family mediation; effects of separation and divorce on children; register the parties for free parent information sessions and make referrals to community services. (IRC service is available only at Family Court of the Superior Court of Justice locations [previously known as the Unified Family Court])

The following resource materials are available:

  • Pamphlets and other publications on issues related to separation and divorce and child protection matters;
  • Court forms and Guides to Procedure;
  • Information on community resources; and
  • Referrals to the court-connected family mediation services.*

*In Family Court of the Superior Court of Justice locations only.

Website

Family Law Information Centres were established in 17 unified family court sites in 1999. They were expanded over the next five years to all court locations.

To provide free information and help about issues related to separation and divorce and other family law matters to the public.

98% respondents to a 2001 survey rated FLIC services as "very helpful" or "satisfactory." (Business Plan)

Permanent implementation

  • courthouse resources
  • family law
  • legal information centres
  • legal services
  • Ontario Ministry of the Attorney General
  • self-represented litigants
1999 FLICs established in 17 unified family court sites
1999-2004 FLICs expanded to all court locations
1999 Ontario Family Law Information Centres

Ontario

Ontario Ministry of the Attorney General

All Ontario courts

Ontario Ministry of the Attorney General courthouse family law information centres, offering information, limited legal advice, and other assistance to self-represented litigants.

All court locations have a Family Law Information Centre (FLIC). A FLIC is an area in the court house where you can get free information and help about issues related to separation and divorce and other family law matters. It is a good idea to get this information before making important decisions.

Guide at 2
The following services are available at the FLIC:

  • Court staff will provide information about the family court; court process; court forms; guides to procedure and how to get a lawyer
  • An Advice Lawyer (from Legal Aid Ontario) will provide 20 minutes of general legal information on family law matters free of charge regardless of eligibility, or case-specific advice to those who qualify financially
  • An Information Referral Coordinator (IRC) will provide information about family mediation; effects of separation and divorce on children; register the parties for free parent information sessions and make referrals to community services. (IRC service is available only at Family Court of the Superior Court of Justice locations [previously known as the Unified Family Court])

The following resource materials are available:

  • Pamphlets and other publications on issues related to separation and divorce and child protection matters;
  • Court forms and Guides to Procedure;
  • Information on community resources; and
  • Referrals to the court-connected family mediation services.*

*In Family Court of the Superior Court of Justice locations only.

Website

Family Law Information Centres were established in 17 unified family court sites in 1999. They were expanded over the next five years to all court locations.

To provide free information and help about issues related to separation and divorce and other family law matters to the public.

98% respondents to a 2001 survey rated FLIC services as "very helpful" or "satisfactory." (Business Plan)

Permanent implementation

  • courthouse resources
  • family law
  • legal information centres
  • legal services
  • Ontario Ministry of the Attorney General
  • self-represented litigants
1999 FLICs established in 17 unified family court sites
1999-2004 FLICs expanded to all court locations
1999 Ontario Mandatory Mediation Program (Rules 24.1 and 75.1)

Ontario

Civil Rules Committee

Superior Court of Justice (Toronto, Ottawa and Windsor)

Continuation of the Program past July 4, 2001 "was to be in large part dependent on the results of a thorough and independent 23-month evaluation".
 

[T]he 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?
    Executive Summary at 1

Program designed to help parties involved in civil litigation and estates matters attempt to settle their cases prior to trial.

Many parties negotiate during the course of litigation. Over 90 percent of all lawsuits settle before getting to the trial stage. Under the Ontario Mandatory Mediation Program, cases are referred to a mediation session early in the litigation process to give parties an opportunity to discuss the issues in dispute. With the assistance of a trained mediator, the parties explore settlement options and may be able to avoid the pretrial and trial process.

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 pretrial 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.

General Information

Rule 24.1

  • 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.
  • 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.
    General Information

Effective January 1, 2010, as part of the extensive changes to the Rules of Civil Procedure, Rule 24.1 will be "expanded to include all cases commenced in Ottawa, Toronto or Essex and is no longer limited to case managed or simplified procedure cases. Now mediation is to take place within 120 days after the first defence has been filed (rather than 90 days as under the previous regime) and mediation may be postponed to a later date if the parties consent to the date in writing and the consent is filed with the mediation coordinator". (Amendmentsat 3)
 

Rule 75.1

  • 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.
  • 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.
    General Information

The Ontario Mandatory Mediation Program was started on January 4, 1999 in Toronto and Ottawa as a pilot project until July 4, 2001. Based on an evaluation of the Program, it was permanently implemented following the release of the evaluation report on March 12, 2001. The Program was implemented in Windsor on December 31, 2002. Effective January 1, 2010, as part of the extensive changes to theRules of Civil Procedure, Rule 24.1 will be expanded to include all cases commenced in Ottawa, Toronto or Essex.

The Program is designed to help parties involved in civil litigation and estates matters attempt to settle their cases before they get to trial, thereby saving both time and money.

Evaluation of the Ontario Mandatory Mediation Program

On March 12, 2001, an Evaluation of the Ontario Mandatory Mediation Program was submitted to the Civil Rules Committee. The report highlighted the following overall key findings and recommendations:
 

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.
  • 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.

The evaluation has also identified a limited number of specific areas in which improvements to the Rule would enhance the operation of the mediation program.

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.
    Executive Summary at 2

Proposed Changes to Rule 24.1

On October 1, 2008, the Civil Rules Committee issued a request for consultation on a proposed new case management Rule 77, which "carries with it certain consequential amendments to the rule respecting mandatory mediation (Rule 24.1)".
 

The new Rule also allows for different levels of case management for different cases. The mandatory mediation rule is to be altered to make it a separately operating rule such that mandatory mediation can be required in cases without also requiring those cases to be subject to case management and vice versa. There is also more flexibility as to the timeframe within which mandatory mediation must occur under the amended Rule.

Consultation Paper at 1

Permanent Implementation

  • mandatory programs
  • mediation
  • Ontario Superior Court of Justice
January 1999 Program initiated in Toronto and Ottawa
March 2001 Report of the Evaluation Committee released
December 2002 Program initiated in Windsor
January 2010 Rule 24.1 expanded to include all cases commenced in Ottawa, Toronto and Essex
2001 Akitsiraq Law School

Nunavut

  • University of Victoria Faculty of Law
  • Nunavut Arctic College

A legal education program for Inuit students offered by the University of Victoria in Iqaluit using the facilities of Nunavut Arctic College.

Inuit students [were] able to earn a Bachelor of Laws degree (LLB) from the University of Victoria through the academic program offered in Iqaluit, Nunavut using the facilities of Nunavut Arctic College. Courses [were] taught by University of Victoria faculty members and law professors from other Canadian universities with assistance from local members of the legal profession. Graduates of this program [have] exactly the same credentials to practice law as students graduating from southern law schools.

In September 2001, there was a one-time admission of a group of students who are progressing through the program together. The program took 4 years to complete on a full-time basis. There are currently no plans to admit students in later years.

The program [provided] a very high faculty-student ratio and substantial support to students through mentoring, tutoring and general skills development courses.

Website.

The idea behind the Akitsiraq Law School has developed over the past ten years. The Akitsiraq Law School Society is a result of those ongoing discussions and enthusiasm. The Akitsiraq Law School is an innovative approach to delivering legal education to Inuit students in their own social, cultural, and geographical environment in the North. The School is based on a partnership between the Akitsiraq Law School Society, the University of Victoria, Faculty of Law, and Nunavut Arctic College.

Website.

The need for Inuit lawyers and for a new approach to legal education:

Throughout the North there is a growing need for Inuit Lawyers in all levels of public service, in industry and for the private practice of law. Identified as a major priority by the Government of Nunavut, legal education for Inuit would address the systemic barriers to Inuit employment, greatly improve the delivery and quality of services to the majority population, and meet the representative Inuit employment obligations as provided in the Nunavut Land Claims Agreement. Indeed, key to the success of Nunavut is the training and education of its beneficiaries in all sectors of the professional job market.

Website.
 
 

The graduation of law students from the Akitsiraq Law Program directly addresses commitments made to the Inuit people through the agreement on self-government between the Canadian and Nunavut governments. The agreement's conditions call for the territorial government to build self-governing capacity. The Akitsiraq law graduates greatly enhance the territory's ability to achieve this goal.

Although the first round of students has graduated. There are plans to re-open the program in 2010.

Media Release.
 

Program completed

  • Aboriginal persons
  • law schools
2001 Program initiated
2005 Program completed
2001 Alberta Intake and Caseflow Management

Alberta

Alberta Justice

Provincial Court

Alberta Justice project providing caseflow management to self-represented litigants dealing with matters related to parenting, contact and guardianship disputes in Provincial Court.

The project helps litigants deal with matters related to parenting, and contact and guardianship disputes but does not include disputes related to child support.

Litigants without legal representation meet with an intake counsellor to assess their case. Then they attend a caseflow conference with a coordinator and the other party. The intake counsellor and coordinator explore options with the litigants, facilitate resolutions and make referrals where required. Litigants are also given information on mediation and judicial dispute resolution in an effort to resolve the matter outside of court. The conferences are an attempt to gain consensus on as many issues as possible, and sometimes agreements are struck by the parties at this stage. If the parties resolve their matter, the coordinators can then prepare consent des

k orders for a judge to sign without a trial date. The coordinators have clerk of the court designations, so parties do not have to go to the Law Courts building to file their applications.
 

If the matter proceeds to court, the caseflow coordinator or family court workers will ensure that the parties are ready and that they understand the court procedures. The family court workers also help prepare court applications and attend court and judicial dispute resolution hearings with the parties. This will save time for the court and the parties by reducing the number of unnecessary adjournments.

Just-in.

The program began with a pilot project in Edmonton with the enactment of the Intake and Caseflow Management Rules (Alta. Reg. 163/2001). This was replaced in 2005 with the Intake and Caseflow Management Regulation (Alta. Reg. 150/2005). The program was expanded to Calgary based on its success in Edmonton. (Family Justice Newsletter)

In the past, unrepresented applicants often faced challenges when bringing applications for custody, access or private guardianship in provincial court.

Being unfamiliar with court procedures or not properly prepared for the proceedings often resulted in unnecessary delays and extra appearances for the applicants and the other parties involved.

The new Intake and Caseflow Management Pilot Project will save court time and improve access to justice by providing new and enhanced services for unrepresented litigants in Edmonton Provincial Family Court.

Just-in.
 

Implemented in Edmonton and Calgary

  • Alberta Justice
  • assessment
  • case planning
  • courthouse resources
  • family law
  • Provincial Court of Alberta
  • self-represented litigants
2001 Pilot Project launched in Edmonton
2005 Permanent implementation
2006 Expanded to Calgary
2001 Alberta Rules of Court Project

Alberta

Alberta Law Reform Institute

  • Court of Queen's Bench
  • Court of Appeal

The Alberta Law Reform Institute's multi-year review of the Alberta Rules of Court, producing reform recommendations to increase the clarity, usability, and effectiveness of the Rules.

The first stage of the Project was to collect feedback on the Rules. A survey was conducted rating the satisfaction or dissatisfaction of respondents with different areas of the Rules. The areas with the highest dissatisfaction ratings were:

  • 1) cost of legal fees,
  • 2) time to resolve a legal case, and
  • 3) the overall legal process.

Areas with medium dissatisfaction were:

  • 1) court forms,
  • 2) information available through the court,
  • 3) ease of understanding the legal process,
  • 4) the trial,
  • 5) the discovery stage, and
  • 6) interlocutory hearings.

Working Committees were established to examine particular subject areas. They produced published consultation memoranda on topics such as Self-Represented Litigants, Costs and Sanctions, Discovery and Evidence Issues, Judicial Review, and Alternative Dispute Resolution. 

These reports were used to prepare the Draft Rules, released in March 2007. Consultations on the new rules was undertaken and feedback from the Rules of Court Committee was incorporated into the rules, resulting in the Final Report and Proposed Rules, released in October 2008. ALRI has proposed an amendment to Alberta's Judicature Act to set out a clear process for adopting and revising Rules of Court.

 

Other than various amendments, the Alberta Rules of Court have not been comprehensively reviewed since they were written in 1968. The legal community and the public have raised concerns regarding the timeliness, affordability, and comprehensibility of the Rules. As a result, it was agreed that the rules would be rewritten, with the Alberta Law Reform Institute (ALRI) assigned to manage the project. The Rules of Court project is a multi-year project charged with reviewing the Alberta Rules of Court and assessing potential reforms. The objective of the Project is to increase the clarity, usability, and effectiveness of the Rules in to make them more accessible. 

The Project is funded by the Alberta Law Reform Institute (ALRI), the Alberta Department of Justice, the Law Society of Alberta and the Alberta Law Foundation, and is managed by ALRI. In pursuit of this goal, ALRI has sought the input of the legal community to define the direction of the reforms.

The Rules of Court Project has four objectives that address both the need for rewriting the rules and reforming practice:

Objective # 1: Maximize the Rules' Clarity

Results will include:

  • simplifying complex language
  • revising unclear language
  • consolidating repetitive provisions
  • removing obsolete or spent provisions
  • shortening rules where possible

Objective # 2: Maximize the Rules' Usability

Results will include:

  • reorganizing the rules according to conceptual categories within a coherent whole
  • restructuring the rules so that it is easier to locate relevant provisions on any given topic

Objective # 3: Maximize the Rules' Effectiveness

Results will include:

  • updating the rules to reflect modern practices
  • pragmatic reforms to enhance the courts' process of justice delivery designing the rules so they facilitate the courts' present and future responsiveness to ongoing technological change, foreseeable systems change and user needs

Objective # 4: Maximize the Rules' Advancement of Justice System Objectives

Results will include:

  • pragmatic reforms to advance justice system objectives for civil procedure such as fairness, accessibility, timeliness and cost effectiveness"
Final Report at 3-4
.

Proposed Rules were implemented on November 1, 2010

  • law reform institutes
  • proposed reforms
  • rules of court
2001 Consultations on Alberta Rules of Court Reforms commenced
January - September 2002 Public consultation
September 2002 Public Consultation Report released
2002 - 2007 Various consultation memoranda released
March 2007 Draft Rules released
October 2008 Final Report and Proposed Rulesreleased.
1 November 2010 Planned implementation date
2001 Alberta Rules of Court Project

Alberta

Alberta Law Reform Institute

  • Court of Queen's Bench
  • Court of Appeal

The Alberta Law Reform Institute's multi-year review of the Alberta Rules of Court, producing reform recommendations to increase the clarity, usability, and effectiveness of the Rules.

The first stage of the Project was to collect feedback on the Rules. A survey was conducted rating the satisfaction or dissatisfaction of respondents with different areas of the Rules. The areas with the highest dissatisfaction ratings were:

  • 1) cost of legal fees,
  • 2) time to resolve a legal case, and
  • 3) the overall legal process.

Areas with medium dissatisfaction were:

  • 1) court forms,
  • 2) information available through the court,
  • 3) ease of understanding the legal process,
  • 4) the trial,
  • 5) the discovery stage, and
  • 6) interlocutory hearings.

Working Committees were established to examine particular subject areas. They produced published consultation memoranda on topics such as Self-Represented Litigants, Costs and Sanctions, Discovery and Evidence Issues, Judicial Review, and Alternative Dispute Resolution. 

These reports were used to prepare the Draft Rules, released in March 2007. Consultations on the new rules was undertaken and feedback from the Rules of Court Committee was incorporated into the rules, resulting in the Final Report and Proposed Rules, released in October 2008. ALRI has proposed an amendment to Alberta's Judicature Act to set out a clear process for adopting and revising Rules of Court.

 

Other than various amendments, the Alberta Rules of Court have not been comprehensively reviewed since they were written in 1968. The legal community and the public have raised concerns regarding the timeliness, affordability, and comprehensibility of the Rules. As a result, it was agreed that the rules would be rewritten, with the Alberta Law Reform Institute (ALRI) assigned to manage the project. The Rules of Court project is a multi-year project charged with reviewing the Alberta Rules of Court and assessing potential reforms. The objective of the Project is to increase the clarity, usability, and effectiveness of the Rules in to make them more accessible. 

The Project is funded by the Alberta Law Reform Institute (ALRI), the Alberta Department of Justice, the Law Society of Alberta and the Alberta Law Foundation, and is managed by ALRI. In pursuit of this goal, ALRI has sought the input of the legal community to define the direction of the reforms.

The Rules of Court Project has four objectives that address both the need for rewriting the rules and reforming practice:

Objective # 1: Maximize the Rules' Clarity

Results will include:

  • simplifying complex language
  • revising unclear language
  • consolidating repetitive provisions
  • removing obsolete or spent provisions
  • shortening rules where possible

Objective # 2: Maximize the Rules' Usability

Results will include:

  • reorganizing the rules according to conceptual categories within a coherent whole
  • restructuring the rules so that it is easier to locate relevant provisions on any given topic

Objective # 3: Maximize the Rules' Effectiveness

Results will include:

  • updating the rules to reflect modern practices
  • pragmatic reforms to enhance the courts' process of justice delivery designing the rules so they facilitate the courts' present and future responsiveness to ongoing technological change, foreseeable systems change and user needs

Objective # 4: Maximize the Rules' Advancement of Justice System Objectives

Results will include:

  • pragmatic reforms to advance justice system objectives for civil procedure such as fairness, accessibility, timeliness and cost effectiveness"
Final Report at 3-4
.

Proposed Rules were implemented on November 1, 2010

  • law reform institutes
  • proposed reforms
  • rules of court
2001 Consultations on Alberta Rules of Court Reforms commenced
January - September 2002 Public consultation
September 2002 Public Consultation Report released
2002 - 2007 Various consultation memoranda released
March 2007 Draft Rules released
October 2008 Final Report and Proposed Rulesreleased.
1 November 2010 Planned implementation date
2001 Alberta Rules of Court Project

Alberta

Alberta Law Reform Institute

  • Court of Queen's Bench
  • Court of Appeal

The Alberta Law Reform Institute's multi-year review of the Alberta Rules of Court, producing reform recommendations to increase the clarity, usability, and effectiveness of the Rules.

The first stage of the Project was to collect feedback on the Rules. A survey was conducted rating the satisfaction or dissatisfaction of respondents with different areas of the Rules. The areas with the highest dissatisfaction ratings were:

  • 1) cost of legal fees,
  • 2) time to resolve a legal case, and
  • 3) the overall legal process.

Areas with medium dissatisfaction were:

  • 1) court forms,
  • 2) information available through the court,
  • 3) ease of understanding the legal process,
  • 4) the trial,
  • 5) the discovery stage, and
  • 6) interlocutory hearings.

Working Committees were established to examine particular subject areas. They produced published consultation memoranda on topics such as Self-Represented Litigants, Costs and Sanctions, Discovery and Evidence Issues, Judicial Review, and Alternative Dispute Resolution. 

These reports were used to prepare the Draft Rules, released in March 2007. Consultations on the new rules was undertaken and feedback from the Rules of Court Committee was incorporated into the rules, resulting in the Final Report and Proposed Rules, released in October 2008. ALRI has proposed an amendment to Alberta's Judicature Act to set out a clear process for adopting and revising Rules of Court.

 

Other than various amendments, the Alberta Rules of Court have not been comprehensively reviewed since they were written in 1968. The legal community and the public have raised concerns regarding the timeliness, affordability, and comprehensibility of the Rules. As a result, it was agreed that the rules would be rewritten, with the Alberta Law Reform Institute (ALRI) assigned to manage the project. The Rules of Court project is a multi-year project charged with reviewing the Alberta Rules of Court and assessing potential reforms. The objective of the Project is to increase the clarity, usability, and effectiveness of the Rules in to make them more accessible. 

The Project is funded by the Alberta Law Reform Institute (ALRI), the Alberta Department of Justice, the Law Society of Alberta and the Alberta Law Foundation, and is managed by ALRI. In pursuit of this goal, ALRI has sought the input of the legal community to define the direction of the reforms.

The Rules of Court Project has four objectives that address both the need for rewriting the rules and reforming practice:

Objective # 1: Maximize the Rules' Clarity

Results will include:

  • simplifying complex language
  • revising unclear language
  • consolidating repetitive provisions
  • removing obsolete or spent provisions
  • shortening rules where possible

Objective # 2: Maximize the Rules' Usability

Results will include:

  • reorganizing the rules according to conceptual categories within a coherent whole
  • restructuring the rules so that it is easier to locate relevant provisions on any given topic

Objective # 3: Maximize the Rules' Effectiveness

Results will include:

  • updating the rules to reflect modern practices
  • pragmatic reforms to enhance the courts' process of justice delivery designing the rules so they facilitate the courts' present and future responsiveness to ongoing technological change, foreseeable systems change and user needs

Objective # 4: Maximize the Rules' Advancement of Justice System Objectives

Results will include:

  • pragmatic reforms to advance justice system objectives for civil procedure such as fairness, accessibility, timeliness and cost effectiveness"
Final Report at 3-4
.

Proposed Rules were implemented on November 1, 2010

  • law reform institutes
  • proposed reforms
  • rules of court
2001 Consultations on Alberta Rules of Court Reforms commenced
January - September 2002 Public consultation
September 2002 Public Consultation Report released
2002 - 2007 Various consultation memoranda released
March 2007 Draft Rules released
October 2008 Final Report and Proposed Rulesreleased.
1 November 2010 Planned implementation date
2001 Alberta Rules of Court Project

Alberta

Alberta Law Reform Institute

  • Court of Queen's Bench
  • Court of Appeal

The Alberta Law Reform Institute's multi-year review of the Alberta Rules of Court, producing reform recommendations to increase the clarity, usability, and effectiveness of the Rules.

The first stage of the Project was to collect feedback on the Rules. A survey was conducted rating the satisfaction or dissatisfaction of respondents with different areas of the Rules. The areas with the highest dissatisfaction ratings were:

  • 1) cost of legal fees,
  • 2) time to resolve a legal case, and
  • 3) the overall legal process.

Areas with medium dissatisfaction were:

  • 1) court forms,
  • 2) information available through the court,
  • 3) ease of understanding the legal process,
  • 4) the trial,
  • 5) the discovery stage, and
  • 6) interlocutory hearings.

Working Committees were established to examine particular subject areas. They produced published consultation memoranda on topics such as Self-Represented Litigants, Costs and Sanctions, Discovery and Evidence Issues, Judicial Review, and Alternative Dispute Resolution. 

These reports were used to prepare the Draft Rules, released in March 2007. Consultations on the new rules was undertaken and feedback from the Rules of Court Committee was incorporated into the rules, resulting in the Final Report and Proposed Rules, released in October 2008. ALRI has proposed an amendment to Alberta's Judicature Act to set out a clear process for adopting and revising Rules of Court.

 

Other than various amendments, the Alberta Rules of Court have not been comprehensively reviewed since they were written in 1968. The legal community and the public have raised concerns regarding the timeliness, affordability, and comprehensibility of the Rules. As a result, it was agreed that the rules would be rewritten, with the Alberta Law Reform Institute (ALRI) assigned to manage the project. The Rules of Court project is a multi-year project charged with reviewing the Alberta Rules of Court and assessing potential reforms. The objective of the Project is to increase the clarity, usability, and effectiveness of the Rules in to make them more accessible. 

The Project is funded by the Alberta Law Reform Institute (ALRI), the Alberta Department of Justice, the Law Society of Alberta and the Alberta Law Foundation, and is managed by ALRI. In pursuit of this goal, ALRI has sought the input of the legal community to define the direction of the reforms.

The Rules of Court Project has four objectives that address both the need for rewriting the rules and reforming practice:

Objective # 1: Maximize the Rules' Clarity

Results will include:

  • simplifying complex language
  • revising unclear language
  • consolidating repetitive provisions
  • removing obsolete or spent provisions
  • shortening rules where possible

Objective # 2: Maximize the Rules' Usability

Results will include:

  • reorganizing the rules according to conceptual categories within a coherent whole
  • restructuring the rules so that it is easier to locate relevant provisions on any given topic

Objective # 3: Maximize the Rules' Effectiveness

Results will include:

  • updating the rules to reflect modern practices
  • pragmatic reforms to enhance the courts' process of justice delivery designing the rules so they facilitate the courts' present and future responsiveness to ongoing technological change, foreseeable systems change and user needs

Objective # 4: Maximize the Rules' Advancement of Justice System Objectives

Results will include:

  • pragmatic reforms to advance justice system objectives for civil procedure such as fairness, accessibility, timeliness and cost effectiveness"
Final Report at 3-4
.

Proposed Rules were implemented on November 1, 2010

  • law reform institutes
  • proposed reforms
  • rules of court
2001 Consultations on Alberta Rules of Court Reforms commenced
January - September 2002 Public consultation
September 2002 Public Consultation Report released
2002 - 2007 Various consultation memoranda released
March 2007 Draft Rules released
October 2008 Final Report and Proposed Rulesreleased.
1 November 2010 Planned implementation date
2001 BC Facilitated Planning Meetings Program (FPMP)

British Columbia

  • Ministry of Children and Family Development - Child and Family Development Division
  • Ministry of Attorney - General Dispute Resolution Office

The final evaluation report of the Surrey Court Project's Facilitated Planning Meeting was released on November 2003. "The methodologies for [the] report consisted of analysis of a range of quantitative data extracted from the FPMP database, and a comparison between FPMP cases and a baseline set of protection cases from the same offices, in terms of the time for cases to reach various milestones and a final disposition" (Report at v).

Mediated meetings between parents and social workers to resolve issues in child custody cases in a collaborative manner.

The basic steps of the Facilitated Planning Meeting process are:

  • Step 1: Invitation/referral. Parents are invited to participate in the project
  • Step 2: Setting up an orientation session for parents
  • Step 3: Orientation session for parents and a separate meeting with the social worker
  • Step 4: Information exchange prior to the Planning Meeting
  • Step 5: The Planning Meeting
  • Step 6: Where all or some issues are agreed to, formalizing the agreement.
    Backgrounder

Step 1: Referral Process

A referral to the project may be made by a social worker on one of the participating teams, the FPMP Court Work Supervisor, a parent, the lawyer of a parent, MCFD Director's Council, or a Judge. The aim of FPMP is to make such referrals as early in the court process as possible.

Report at 3

Steps 2 & 3: Orientation Session

Orientation sessions are held between the mediator and social worker (including the court work supervisor) on the one hand, and parents on the other. Depending on the relationship between the parents, their sessions may be held together or separately. Sessions with other parties are possible as well. Legal counsel may attend these meetings.

The purpose is to prepare parties for the planning meeting by discussing logistics and clarifying parties interests, issues and concerns. Information relevant to the safety of the child(ren) is also exchanged. An Agreement to Participate in the planning meeting may be signed at this stage.

Orientation sessions and planning meetings (as discussed in the next section) are scheduled by the FPMP Administrative Coordinator.

Report at 3

Steps 5 & 6: Planning Meeting

The planning meeting is a mediated session which includes one mediator, the immediate parties (e.g. parents and social worker), and the Court Work Supervisor, and can include parents' counsel, counsel for the child(ren), Director's counsel, and other relevant parties. The original expectation was that the meeting would take about 2 hours, and that in some cases a second meeting may be necessary.

When all or some issues are agreed to, a written agreement is created and signed. In some cases this agreement becomes the basis of a consent order. If no issues are resolved, the mediator confirms that the matter will proceed to a hearing.

This meeting is also scheduled by the Administrative Coordinator.

Report at 4

Comparison with Section 22 Mediations under the CFCSA

Section 22 of the CFCSA allows child protection disputes to be referred to mediation for resolution. A Child Protection Mediation Program was established in 1997. The main differences between the FPMP process and other Section 22 mediations are:

  • The role of the Administrative Coordinator is unique to FPMP and provides critical, time-consuming scheduling services to mediators. In Section 22 mediations, mediators are responsible for scheduling all mediation services. (See note concerning the impact of the reduction of this role in Section 2.4.1.) (Note: the Administrative Coordinator position was full-time throughout the life of the demonstration project, and was essential to the timely completion of cases. It also allowed mediators and the Court Work Supervisor time to prepare for the meeting. The Court Work Supervisor reports that the reduction of this position to half time in April 2003 has seriously impacted her preparation time.)
  • The role of the Court Work Supervisor is essential to the FPMP, but is not a feature of Section 22 mediations. This role is described in Section 6.3. The Court Work Supervisor is an experienced social worker whose position is dedicated solely to the FPMP process. She participates in both the orientation meetings with the social worker and in the planning meetings, acts as a mentor or "process interpreter" to the social worker, and is knowledgeable about and has authority to approve services.
  • Section 22 mediations are strictly voluntary. While participation in FPMP is also voluntary, the Court Work Supervisor systematically reviews all eligible cases for referral.
  • Orientation sessions are optional in Section 22 mediation, but are an essential component in FPMP cases.
  • Section 22 mediations can occur at any time when MCFD is involved with a family under the CFCSA, even before a child is removed or after a hearing. The original conception of FPMP cases was that they would normally begin shortly after the court process has been initiated. However, a significant percentage of cases were referred to the project at more advanced stages in the court process.
  • Section 22 mediations can occur anywhere in the province, while the FPMP is restricted to the South Fraser Region offices identified in Section 2.1.2

While these differences are true in general terms, in the Section 22 mediations discussed in Appendix 2 of this report, the mediations were conducted by the same players and in the same manner as FPMP cases.

Report at 4
 

Facilitated Planning Meetings were introduced in 2001 as part of the the Surrey Court Project pilot program, which was continued as a permanent program with Facilitated Planning Meetings now available in some areas of the province. 
 

The Surrey Court Project was an initiative of theChild, Family and Community Service Act (CFCSA) Caseflow Study Committee. The committee was established at the recommendation of the Ombudsman, Dulcie Macallum. In her 1998 report "Getting There: Response to the Recommendations of the Gove Inquiry into Child Protection," the Ombudsman recommended that the Ministry of Attorney General and the Ministry of Children and Family Development strike a committee to explore the reasons for delays in court decisions regarding children and youth.

Backgrounder
 

The prime objective of the Facilitated Planning Meeting is to make effective decisions for children as soon as possible. It provides an opportunity, early in the court process, for parents and social workers to meet and, with the help of an independent mediator, resolve as many issues as possible in a collaborative manner. The social worker is accompanied by a Court Work Supervisor who has the authority to agree to a service plan and approve allocation of resources.

Backgrounder
 

The final evaluation report contained the following conclusions:
 

Data and feedback gathered for this report indicates that the FPMP has been a highly successful demonstration project. It is now an ongoing project within the Fraser South Region of MCFD and has expanded to the Simon Fraser Region. It is being actively considered in other areas of the province as a way of expediting child protection cases, reducing court, MCFD and Legal Aid costs, and contributing to more satisfying outcomes for parents, children and social workers.

The primary conclusions that can be drawn at this point are as follows:

  • The planning meeting process achieves a very high resolution rate, whether considered by overall case (83% fully resolved) or by issues involved (92% resolved). These high rates not only held up throughout the study period but actually improved. Considering the stakes involved and the highly charged nature of these cases, this is a highly significant achievement.
  • Although mediation to achieve consent on a continuing care order was not an original objective in the demonstration project, preliminary evidence concerning post-demonstration period cases clearly points to the effectiveness of mediation of CCOs. These showed similarly high resolution rates to non-CCO cases.
  • When provided with a dedicated administrative assistant to schedule orientation meetings and planning meetings the FPMP process is extremely efficient both in involving a large number of parties (average 5.4) and in expediting cases (69% of cases completed in less than 40 days from referral).
  • Whereas all the baseline cases (47/47) went to a protection hearing, only 14% (5/37) of FPMP cases did so. Instead, in the vast majority of cases where agreements were reached in a planning meeting, the social worker needed only to appear in court for a few minutes on the originally scheduled date, in order to confirm the agreement. This outcome clearly represents a savings in court and social worker time in FPMP cases.
  • Preliminary data suggests that FPMP cases take longer than comparable court cases to reach the presentation hearing and commencement of protection hearing stages; this is simply because FPMP cases involve orientation and planning meetings whereas court cases do not. However, over the longer term (i.e. to a temporary order and, especially, to final disposition) it appears that the FPMP process contributes to an overall reduction in case duration. It will be necessary to await completion of all FPMP cases before the extent and significance of the time reduction can be determined. The main reason for this time efficiency is the FPMP's ability to resolve most matters up to the temporary order stage in the same meeting. This ability in turn springs from the fact that the planning meeting is not just another "milestone event" to be managed, as court appearances often tend to be. Rather they are mechanisms whereby all relevant issues and parties are addressed in a comprehensive and non-confrontational manner.
  • Satisfaction of all major participants in the planning meetings - parents, social workers, lawyers - was very high in interviews conducted in the first half of the demonstration project. Given continued high resolution rates, it is likely that this level of satisfaction has been sustained.
  • Although this study did not involve a cost analysis, data collected by MCFD and reported in Appendix 1 suggests that this process results in costs savings to MCFD. The fact that trial dates are vacated when cases are mediated also suggests that there can be significant savings to both the Court and Legal Aid systems.
    Report at 34

Permanent implementation

  • children
  • family law
  • litigants
  • mediation
2001 Pilot project initiated in Surrey
2002 Project continued past expiration of the pilot period
2003 Evaluation of the pilot project released
2001 BC Streamlined Chambers Process (Rule 51A)

British Columbia

Supreme Court of British Columbia

BC Supreme Court rule, and proposed replacement, that requires an exchange of materials in advance of chambers applications.

Rule 51A (Setting Down Applications for Hearing)

"The rule establishe[s] a process for setting down matters in chambers and requiring the exchange of materials in advance of the hearing which serve to focus the legal and factual basis of the application and the position of the party in response" (Access to Justice at 10).
 

Proposed Rule 14-1

The proposed new Rules of Civil Procedure incorporate Rule 51A as Rule 14-1. The new Rule significantly simplifies the procedures currently set out in Rule 51A, which "should serve to somewhat decrease current barriers faced by self-represented litigants in accessing the Supreme Court" (LSS Submission at 9).

 

Rule 51A, governing originating and interlocutory applications in chambers, came into force on July 1, 2001. It is a province-wide extension of the former Rule 65, the Chambers Pilot Project in the Vancouver registry. Rule 51A incorporates a number of suggestions that were made by the bar based on the pilot.

Chief Justice Justice Brenner in his discussion of Rule 51A shortly after its implementation, reported that:

as soon as the new rule became effective we saw a marked decrease in the volume of chambers applications. This mirrored our experience with the pilot project in Vancouver. We believe this decrease is caused by the earlier communication that now takes place between the parties or their counsel. As a result many matters are now resolved without the necessity of an actual attendance at court.

2001 Report at 20

In 2006, speaking of Rule 51A, Madam Justice Marvyn Koenigsberg of the B.C. Supreme Court stated that:
 

The implementation of this process has had the effect of reducing the number of matters that proceed in chambers and ensuring that those applications which do proceed are well prepared and that hearing time estimates are reliable. Whereas in the past, the Vancouver registry would have to schedule two chambers courtrooms daily, each with long lists that would tend to collapse on the day of hearing, now only one chambers courtroom is scheduled, with fewer, and more well prepared matters proceeding as scheduled.

Rule 51A has had its detractors who say that the structure of the process has rendered preparing for a chambers hearing more expensive. However, against that it must be acknowledged that a great deal of counsel time with corresponding cost to litigants was formerly wasted in lawyers attending and waiting through long lists in chambers before being heard. The theory behind Rule 51A and the need for such a structure is nearly universally acknowledged. Some tweaking of the procedures and notice periods in the rule could assist in disarming detractors.

Access to Justice at 10-11
 

Permanent Implementation

  • chambers hearings
  • proposed reforms
  • rules of court
  • Supreme Court of British Columbia
July 1, 2001 Rule 51A came into force province-wide
July 2007 Draft Rules released
July 1, 2010 Projected implementation of new rules
2001 Family Mediation Services Program (Nunavut Pathfinder Project - Inuusirmut Aqqusiuqtiit)

Nunavut

Nunavut Department of Justice

Nunavut Department of Justice project providing mediation services to allow families to resolve conflict and move on peacefully as a family unit.

This program is offered to parents who are separating who may or may not be in conflict or who just want to make a verbal or written agreement. It gives parents a chance to sit down and talk about their issues so they can effectively build skills and understand each other's situation better. This program allows couples to hear each other's concerns with out interruptions. Mediation also allows people to see the strength of the other person, and that they love their children equally. In addition, mediation allows parties to build a better relationship and this makes it easer for them to deal with each other. This program tries to teach parents that when they separated they did not stop being parents and they need to continue sharing their responsibilities for their child equally.

2007 Annual Report at 19

General counselling training was provided to the Cape Dorset and Iqaluit counsellors in March 2006, following which the counselling services offered were expanded to include other issues affecting families such as drug and alcohol abuse, domestic violence and suicide.

A full-time person in the Iqaluit office supervises the community counsellors and provides counselling and mediation services to the residents of Iqaluit. She also provides telephone service to people in remote communities. In December 2006, the Parenting After Separation Program was added. 

Services provided by the Senior Family Support Counselor at the Iqaluit office include:

  • Information sessions for new clients, including how mediation works
  • Providing contact information for lawyers working in Legal Aid
  • Referring clients to professional counselors at Social Services and Inuit Organizations
  • Provide family law information to clients
  • Modified mediations where the Family mediator does separate mediation when needed due to anger, fear, or location issues. This is to promote the safety and equal participation of the separate parties involved
  • Telephone mediations when parties live in different communities
    2007 Annual Report at 21

Case Files at the Iqaluit Office

  • Thirty new files opened between April 1, 2007and Feb 18, 2008.
  • Telephone mediation: 2 files mediated.
  • Separate mediation: 5 files mediated.
  • In same room mediation: 8 files mediated.
  • Referral out to other organizations: 8 files.
  • Client in for information on mediation or other: 15 people.

Many of the clients have stated that the mediation process is better for their situations because it allows them to come to a mutual decision on their children's futures. Many have mentioned that they are happy to have the parenting plans and schedules. They feel that they now have a better understanding of when the children will be with each parent and they have made this decision on their own. Most clients feel comfortable that they can always go back to mediation if the need should arise and that the mediation process has given them confidence in their decisions. The majority of clients say the mediation process has given them a better understanding of each other and helped them to gain better communication skills.

2007 Annual Report at 21
 
The Nunavut Court of Justice had reached a stage in its development where mediation and the incorporation of traditional Inuit justice processes were of interest both in terms of appropriate case management and dealing with the parties more effectively. It was time to examine whether a program that emphasizes cross-cultural values between southern style mediation and Inuit problem-solving practices could be implemented in Nunavut.

Annual Report at 14

In 2001, the Nunavut Department of Justice, with Federal funding, began to study the implementation of a pilot program, Inuusirmut Aqqusiuqtiit, to provide family mediation services in two communities as a pilot project. The vision was that Inuusirmut Aqqusiuqtiit would provide support that allows families to resolve conflict and move on peacefully as a family unit. Two Inuusirmut Aqqusiuqtiit were to be based at each of the centres.

In 2002, the communities of Cape Dorset and Kugluktuk were chosen for the implementation of this pilot project. The pilot program in Kugluktuk was closed in July 2005.
 

In April of 2006, the IA Mediation Program was moved to the Community Justice Program from Court Services. This move was performed so that the program would gain greater recognition for increased funding from the Government of Nunavut. We hired another family program coordinator with the hope that this person could find more funding for the Cape Dorset office, but we were not successful in finding more funding. The Cape Dorset office closed on March 31st 2007.

2007 Annual Report at 21
 
While recent non-adversarial innovations in the Nunavut Justice system have often focused on criminal law, few initiatives have focused on civil or family matters. Backlogs and concerns about a lack of access to family law services have been growing since Nunavut was established on April 1, 1999. The adversarial process of solving any disputes is culturally foreign to Inuit, and it has been found not to be particularly successful.

Business Plan at 5-30
We hope that the pilot projects that will start in some of our communities will be successful in assisting people to resolve their difficulties outside the normal Court system. In Nunavut, it is important not only to provide access to justice, but also to provide access to problem solving resources outside of the formal court system.

2001 Annual Report at 3

Ongoing pilot

  • family law
  • mediation
  • Nunavut Department of Justice
2001 Study into pilot project begins
2002 Pilot commenced in Cape Dorset and Kugluktuk
July 2005 Kugluktuk pilot closed
April 2006 Program moved to the Community Justice Program from Court Services
March 2007 Cape Dorset office closed
January 2008 New mediators hired in Rankin Inlet, Cape Dorset and Cambridge Bay
2001 Halifax Case Management

Nova Scotia

Supreme Court of Nova Scotia

Supreme Court of Nova Scotia

Differential caseflow management system with two tracks, Ordinary and Fast Process in non-family civil proceedings commenced by originating notice.

Track Selection

Rule 68 applied to non-family civil proceedings commenced by originating notice in the Halifax court. It provided a differential caseflow management system with two tracks, Ordinary and Fast Process. Where it was expected that a notice of trial could be filed within eight months, Fast Process could be either selected by the plaintiff or ordered by the court.

Ordinary Process

  • Parties were required to file and serve lists of documents within 60 days after the close of the pleadings or within 7 days after the service of the originating notice where there were no pleadings.
  • Completion of discovery of witnesses, other than experts, was required within six months after the close of pleadings. Discovery of expert witnesses was required to be completed within fourteen months after the close of pleadings.

Fast Process

  • Parties were required to file and serve lists of documents within 20 days after the close of pleadings.
  • Discovery of witnesses was required to be completed within four months after the close of pleadings.

 

Appearance Days

Appearance Days were introduced as part of the new Rule 68, designed to deal with pre-trial procedural issues. Appearance Day was held on Fridays at noon, with ten days notice to the court and opposing counsel. Under Practice Memorandum 27, the court required both parties to appear after 10 months had passed since the close of pleadings for Fast Process cases, or 24 months for Ordinary Process cases.

On Appearance Day, the court was able to varied time limits, order the payment of costs, change the track of case from Fast to Ordinary or vice versa, order case management for a complex case, or give any direction the court saw fit.
 

Settlement Conferences

The Practice Memorandum also outlines procedures for settlement conferences, which are held at the request of either party and presided over by a judge other than the trial judge. Both parties submit briefs outlining their cases prior to the conference.

 

In 2001 Rule 68, Halifax Case Management, replaced a prior version, the Halifax Caseflow Management Project.
 

...The distinguishing features of the Halifax Caseflow Management Project [were] mandatory settlement conferences, proactive judicial involvement in complex cases right from the start, selection of a track system appropriate to a particular case, time limits rather than restrictions on discoveries and, as an administrative model, the requirement that all matters in the CFM project pass through the Project Coordinator before these are referred to the judge handling the case. ... The Project also placed premium on differentiated case management which necessitat[ed] the development of four track systems, i.e., fast track, standard track, complex track and holding track, to which cases [were] assigned depending on the nature of the cause of action.

CDI at 2.
The former "case flow management" system, which was a three (3) year pilot project commencing in 1996, was dismantled at the end of the pilot project term. This occurred as a result of opposition and dissatisfaction by both members of the Bench and members of the Bar with the project. A Joint Bench-Bar Case Management Committee had been created at the outset of the pilot project and it was reactivated to determine what, if any, form of a new case management system should replace the former case flow management system.

The Joint Committee determined that the following elements should be preserved in the development of a new case management system:

  • the ability to have FAST process cases before the Supreme Court;
  • the ability to have certain cases "case managed";
  • Appearance Days; and
  • Settlement Conferences.

On May 23, 2001, the judges of the Supreme Court adopted a new Rule 68 and Practice Memorandum No. 27 to replace the former Rule 68 with an effective date of April 1, 2000. Rule 68 applies to all proceedings commenced by originating notice (action) filed in Halifax on or after April 1, 2000. Although certain types of proceedings are exempt from Rule 68, they can be subject to the rule on the consent of the parties.

Appearance Days at 1-2.
 

The Civil Rules Revision Project Management of Litigation Working Group recommended in 2005 that the Halifax Case Management regime be retained. In addition, they recommended that the Rules provide for the appointment of a Case Management Judge (CMJ) at the initiative of the the Prothonotary or a Judge at any time following the close of pleadings. The CMJ would:

  • With the consent of the parties, preside at pre-trial motions.
  • Be able to issue orders reflecting developments during case management proceedings.
  • Determine whether case management proceedings will be recorded.
  • Give direction to the parties on the preparation of the minutes of case management meetings.

The new rules included provisions for Appearance Days (Rule 24) and Case Management (Rule 26) comparable to those found in the Halifax Case Management rule.

 

Superseded by new Civil Procedure Rules.

  • expedited litigation
  • litigation management
  • Supreme Court of Nova Scotia
1996 Halifax Caseflow Management Project 3 year pilot begins
1999 Pilot ends, project discontinued
2001 New Rule 68 approved
January 2009 New Civil Procedure Rules went into effect
2001 Halifax Case Management

Nova Scotia

Supreme Court of Nova Scotia

Supreme Court of Nova Scotia

Differential caseflow management system with two tracks, Ordinary and Fast Process in non-family civil proceedings commenced by originating notice.

Track Selection

Rule 68 applied to non-family civil proceedings commenced by originating notice in the Halifax court. It provided a differential caseflow management system with two tracks, Ordinary and Fast Process. Where it was expected that a notice of trial could be filed within eight months, Fast Process could be either selected by the plaintiff or ordered by the court.

Ordinary Process

  • Parties were required to file and serve lists of documents within 60 days after the close of the pleadings or within 7 days after the service of the originating notice where there were no pleadings.
  • Completion of discovery of witnesses, other than experts, was required within six months after the close of pleadings. Discovery of expert witnesses was required to be completed within fourteen months after the close of pleadings.

Fast Process

  • Parties were required to file and serve lists of documents within 20 days after the close of pleadings.
  • Discovery of witnesses was required to be completed within four months after the close of pleadings.

 

Appearance Days

Appearance Days were introduced as part of the new Rule 68, designed to deal with pre-trial procedural issues. Appearance Day was held on Fridays at noon, with ten days notice to the court and opposing counsel. Under Practice Memorandum 27, the court required both parties to appear after 10 months had passed since the close of pleadings for Fast Process cases, or 24 months for Ordinary Process cases.

On Appearance Day, the court was able to varied time limits, order the payment of costs, change the track of case from Fast to Ordinary or vice versa, order case management for a complex case, or give any direction the court saw fit.
 

Settlement Conferences

The Practice Memorandum also outlines procedures for settlement conferences, which are held at the request of either party and presided over by a judge other than the trial judge. Both parties submit briefs outlining their cases prior to the conference.

 

In 2001 Rule 68, Halifax Case Management, replaced a prior version, the Halifax Caseflow Management Project.
 

...The distinguishing features of the Halifax Caseflow Management Project [were] mandatory settlement conferences, proactive judicial involvement in complex cases right from the start, selection of a track system appropriate to a particular case, time limits rather than restrictions on discoveries and, as an administrative model, the requirement that all matters in the CFM project pass through the Project Coordinator before these are referred to the judge handling the case. ... The Project also placed premium on differentiated case management which necessitat[ed] the development of four track systems, i.e., fast track, standard track, complex track and holding track, to which cases [were] assigned depending on the nature of the cause of action.

CDI at 2.
The former "case flow management" system, which was a three (3) year pilot project commencing in 1996, was dismantled at the end of the pilot project term. This occurred as a result of opposition and dissatisfaction by both members of the Bench and members of the Bar with the project. A Joint Bench-Bar Case Management Committee had been created at the outset of the pilot project and it was reactivated to determine what, if any, form of a new case management system should replace the former case flow management system.

The Joint Committee determined that the following elements should be preserved in the development of a new case management system:

  • the ability to have FAST process cases before the Supreme Court;
  • the ability to have certain cases "case managed";
  • Appearance Days; and
  • Settlement Conferences.

On May 23, 2001, the judges of the Supreme Court adopted a new Rule 68 and Practice Memorandum No. 27 to replace the former Rule 68 with an effective date of April 1, 2000. Rule 68 applies to all proceedings commenced by originating notice (action) filed in Halifax on or after April 1, 2000. Although certain types of proceedings are exempt from Rule 68, they can be subject to the rule on the consent of the parties.

Appearance Days at 1-2.
 

The Civil Rules Revision Project Management of Litigation Working Group recommended in 2005 that the Halifax Case Management regime be retained. In addition, they recommended that the Rules provide for the appointment of a Case Management Judge (CMJ) at the initiative of the the Prothonotary or a Judge at any time following the close of pleadings. The CMJ would:

  • With the consent of the parties, preside at pre-trial motions.
  • Be able to issue orders reflecting developments during case management proceedings.
  • Determine whether case management proceedings will be recorded.
  • Give direction to the parties on the preparation of the minutes of case management meetings.

The new rules included provisions for Appearance Days (Rule 24) and Case Management (Rule 26) comparable to those found in the Halifax Case Management rule.

 

Superseded by new Civil Procedure Rules.

  • expedited litigation
  • litigation management
  • Supreme Court of Nova Scotia
1996 Halifax Caseflow Management Project 3 year pilot begins
1999 Pilot ends, project discontinued
2001 New Rule 68 approved
January 2009 New Civil Procedure Rules went into effect
2001 Prince Edward Island Task Force on Access to Justice

Prince Edward Island

  • Prince Edward Island Courts
  • Office of the Attorney General

Joint task force formed to review access to justice and identify problems with the existing system in an effort to improve access to justice, reduce cost of litigation, simplify practice and procedures, and improve technology.

The task force concentrated mainly on

  • Self-Represented Litigants
  • Technology
  • Court Process
  • Legal Aid

Some limited action was taken based on the findings and recommendations of the Task Force. It included changes to Small Claims, Family Law Legal Aid, and Family Law Centre and those based on the recommendations dealing with administrative issues and the Rules of Court.

 

The Task Force on Access to Justice was established in 2001 by the Honourable Gerard E. Mitchell, the Chief Justice of Prince Edward Island, in cooperation with the Office of the Attorney General, the Law Society and the PEI Branch of the Canadian Bar Association.

The Final Report was released in October of 2002 outlining findings and several recommendations. Following the Final Report's release, an Implementation Steering Committee was established to help move these recommendations forward. Due to government cutbacks, the Committee was disbanded in December 2004. However, the recommendations and discussions contained in the Final Report are still considered relevant and useful for PEI's Courts (Study of SRL at 8).

 

 

The task force was mandated "to review access to justice, broadly interpreted, and identify problems with the existing system in an effort to improve access to justice, reduce cost of litigation, simplify practice and procedures, and improve technology" (Final Report at 1-2).

  • access to justice
  • cost of justice
  • Prince Edward Island Courts
  • Prince Edward Island Office of the Attorney General
  • proposed reforms
  • simplification of process
  • technology
2001 Task Force on Access to Justice established
October 2002 Task Force on Access to Justice Final Report released
2003 Newfoundland and Labrador Court Ordered Mediation (Rule 37A)

Newfoundland and Labrador

Supreme Court Trial Division Rule's Committee

Supreme Court of Newfoundland and Labrador (Trial Division)

Newfoundland and Labrador Supreme Court allowing court-ordered mandatory mediation in civil (non-family) cases.

Rule 37A envisions the mediation process as one "of discussion between parties...under the direction of neutral third party...to assist them in reaching a mutually acceptable resolution" (r. 37A.01(b)). 

Although the Rule contemplates "interest-based" mediation, the "procedure and methodology to be followed...may vary according to the particular style and approach of the mediator" (r. 37A.05(7)).

The Court, on the application of a party or on its own motion at any time following the filing of a defence, may order the parties to participate in mediation (r. 37A.03(1)). 

Unless otherwise ordered, the mediation must commence within 24 days of the date of such order, it should last no longer than four hours in total and the costs thereof are born equally by the parties (r. 37A.03(3)). All further proceedings are stayed until the mediator's report is filed (r. 37A.03(6)).

Once the mediation has been scheduled, the parties are required to provide the mediator and each other party with a brief statement of factual and legal issues in dispute, a summary of that party's interests and copies of all documents considered of central importance in the proceeding at least seven days before the session (r. 37A.05(2)). The mediator is required to file a mediation report within 10 days after the mediation is concluded indicating whether agreement has been reached (r. 37A.07(1)).

If an agreement has been reached at the mediation, the parties have to file a Memorandum of Settlement pursuant to r. 39.06. Otherwise, the case proceeds in the normal course
 

Concerns raised regarding Rule 37A

  • Rule 37A.03(c) contemplates that the costs of mediation are to be borne equally by the parties. This is troublesome because many litigates, in particular personal injury plaintiffs, may not have the financial resources to contribute to the costs of mediation.
  • Although the rule contemplates the establishment of the list of mediators, the rule does not set out the eligibility criteria for the persons to be placed on the list.
    CBA News at 11
  • Rule 37A.03(5) and .05(5) both contemplate additional parties attending the mediation, and in .05(5), specifically insurers. A concern has been raised that this may give such parties the opportunity to frustrate the process for their own needs. (CBA News at 11).

Rule 37A, governing Court Ordered Mediation, came into force on April 1, 2003. It applies to all non-family law civil cases.

"The purpose of this rule is to establish a mechanism to provide mandatory mediation pursuant to court order in individual cases so as to reduce cost and delay in litigation and to facilitate the early and fair resolution of disputes" (r. 37A.02).

In practice, the rule is infrequently used. Most matters in civil litigation in Newfoundland and Labrador which go to mediation go there by the desire and consent of both parties, thereby circumventing the need to make application to do so.

Permanent Implementation

  • mandatory programs
  • mediation
  • rules of court
  • Supreme Court of Newfoundland and Labrador (Trial Division)
Date Event
2003 Newfoundland and Labrador Court Ordered Mediation (Rule 37A)

Newfoundland and Labrador

Supreme Court Trial Division Rule's Committee

Supreme Court of Newfoundland and Labrador (Trial Division)

Newfoundland and Labrador Supreme Court allowing court-ordered mandatory mediation in civil (non-family) cases.

Rule 37A envisions the mediation process as one "of discussion between parties...under the direction of neutral third party...to assist them in reaching a mutually acceptable resolution" (r. 37A.01(b)). 

Although the Rule contemplates "interest-based" mediation, the "procedure and methodology to be followed...may vary according to the particular style and approach of the mediator" (r. 37A.05(7)).

The Court, on the application of a party or on its own motion at any time following the filing of a defence, may order the parties to participate in mediation (r. 37A.03(1)). 

Unless otherwise ordered, the mediation must commence within 24 days of the date of such order, it should last no longer than four hours in total and the costs thereof are born equally by the parties (r. 37A.03(3)). All further proceedings are stayed until the mediator's report is filed (r. 37A.03(6)).

Once the mediation has been scheduled, the parties are required to provide the mediator and each other party with a brief statement of factual and legal issues in dispute, a summary of that party's interests and copies of all documents considered of central importance in the proceeding at least seven days before the session (r. 37A.05(2)). The mediator is required to file a mediation report within 10 days after the mediation is concluded indicating whether agreement has been reached (r. 37A.07(1)).

If an agreement has been reached at the mediation, the parties have to file a Memorandum of Settlement pursuant to r. 39.06. Otherwise, the case proceeds in the normal course
 

Concerns raised regarding Rule 37A

  • Rule 37A.03(c) contemplates that the costs of mediation are to be borne equally by the parties. This is troublesome because many litigates, in particular personal injury plaintiffs, may not have the financial resources to contribute to the costs of mediation.
  • Although the rule contemplates the establishment of the list of mediators, the rule does not set out the eligibility criteria for the persons to be placed on the list.
    CBA News at 11
  • Rule 37A.03(5) and .05(5) both contemplate additional parties attending the mediation, and in .05(5), specifically insurers. A concern has been raised that this may give such parties the opportunity to frustrate the process for their own needs. (CBA News at 11).

Rule 37A, governing Court Ordered Mediation, came into force on April 1, 2003. It applies to all non-family law civil cases.

"The purpose of this rule is to establish a mechanism to provide mandatory mediation pursuant to court order in individual cases so as to reduce cost and delay in litigation and to facilitate the early and fair resolution of disputes" (r. 37A.02).

In practice, the rule is infrequently used. Most matters in civil litigation in Newfoundland and Labrador which go to mediation go there by the desire and consent of both parties, thereby circumventing the need to make application to do so.

Permanent Implementation

  • mandatory programs
  • mediation
  • rules of court
  • Supreme Court of Newfoundland and Labrador (Trial Division)
Date Event
2003 Newfoundland and Labrador Court Ordered Mediation (Rule 37A)

Newfoundland and Labrador

Supreme Court Trial Division Rule's Committee

Supreme Court of Newfoundland and Labrador (Trial Division)

Newfoundland and Labrador Supreme Court allowing court-ordered mandatory mediation in civil (non-family) cases.

Rule 37A envisions the mediation process as one "of discussion between parties...under the direction of neutral third party...to assist them in reaching a mutually acceptable resolution" (r. 37A.01(b)). 

Although the Rule contemplates "interest-based" mediation, the "procedure and methodology to be followed...may vary according to the particular style and approach of the mediator" (r. 37A.05(7)).

The Court, on the application of a party or on its own motion at any time following the filing of a defence, may order the parties to participate in mediation (r. 37A.03(1)). 

Unless otherwise ordered, the mediation must commence within 24 days of the date of such order, it should last no longer than four hours in total and the costs thereof are born equally by the parties (r. 37A.03(3)). All further proceedings are stayed until the mediator's report is filed (r. 37A.03(6)).

Once the mediation has been scheduled, the parties are required to provide the mediator and each other party with a brief statement of factual and legal issues in dispute, a summary of that party's interests and copies of all documents considered of central importance in the proceeding at least seven days before the session (r. 37A.05(2)). The mediator is required to file a mediation report within 10 days after the mediation is concluded indicating whether agreement has been reached (r. 37A.07(1)).

If an agreement has been reached at the mediation, the parties have to file a Memorandum of Settlement pursuant to r. 39.06. Otherwise, the case proceeds in the normal course
 

Concerns raised regarding Rule 37A

  • Rule 37A.03(c) contemplates that the costs of mediation are to be borne equally by the parties. This is troublesome because many litigates, in particular personal injury plaintiffs, may not have the financial resources to contribute to the costs of mediation.
  • Although the rule contemplates the establishment of the list of mediators, the rule does not set out the eligibility criteria for the persons to be placed on the list.
    CBA News at 11
  • Rule 37A.03(5) and .05(5) both contemplate additional parties attending the mediation, and in .05(5), specifically insurers. A concern has been raised that this may give such parties the opportunity to frustrate the process for their own needs. (CBA News at 11).

Rule 37A, governing Court Ordered Mediation, came into force on April 1, 2003. It applies to all non-family law civil cases.

"The purpose of this rule is to establish a mechanism to provide mandatory mediation pursuant to court order in individual cases so as to reduce cost and delay in litigation and to facilitate the early and fair resolution of disputes" (r. 37A.02).

In practice, the rule is infrequently used. Most matters in civil litigation in Newfoundland and Labrador which go to mediation go there by the desire and consent of both parties, thereby circumventing the need to make application to do so.

Permanent Implementation

  • mandatory programs
  • mediation
  • rules of court
  • Supreme Court of Newfoundland and Labrador (Trial Division)
Date Event
2003 Nova Scotia Summary Advice Counsel (SAC)

Nova Scotia 

Nova Scotia Legal Aid

Family Court Division of the Supreme Court of Nova Scotia

Nova Scotia Legal Aid Summary Advice Counsel provide summary legal advice, primarily to self-represented litigants, on family law matters.

In October 2003 a pilot project was initiated in metropolitan Halifax (Devonshire Court location) whereby summary legal advice was to be provided under the direction of Nova Scotia Legal Aid in the Family Division of the Supreme Court...In April 2004 the service was established at the Family Division in Sydney (Sydney Justice Centre location) whereby the counsel was under secondment to Court Services from Nova Scotia Legal Aid. In this initiative special funding was secured for two years from the Department of Justice Canada in response to a proposal jointly submitted by NSLA and Court Service Nova Scotia...

While the two projects differ in terms of funding arrangements and organization context for the SAC role, in each case, counsel provides legal advice with respect to the Maintenance and Custody Act, the 'Divorce Act', the Matrimonial Property Act, pension legislation and so forth.

The report summarizing the findings of the assessment contained the following conclusions:
 

There is little question but that the SAC service has met with much favour by stakeholders of all stripes as well as by virtually all its client users. All the stakeholders in the court system, and outside it, who knew much about SAC considered it a valuable addition to the Family Court. Those who knew little became quite enthusiastic when informed about how the SAC service works. The SAC role has been implemented as intended as free, summary-level, legal advice accessible to all persons otherwise unrepresented. Its defining features (short sessions, FPP, no courtroom presence, focus on legal concerns) have indeed characterized its implementation. It has realized its central objective of assisting the unrepresented as witness its penetration rate and the views of clients as well as conciliators and judges and, for many, if not most, clients it has provided the only legal counsel that they would have received. While not especially impacting on the engagement of other legal representation or on the quantity of court activities (i.e., the court workload), in the eyes of the SAC lawyers and the testimony of the other court role players, it has improved the efficiency and effectiveness of court processing. Its availability has provided relief to clients and court officials who otherwise would have quite stressed in responding to the unrepresented persons and their needs and demands. The thought of discontinuing the SAC initiative, especially without any profound reconfiguration of legal aid, is something that filled virtually all interviewees with dread.

There were some differences in the SAC service by site but overall the commonalities were much more pronounced. There is little question that SAC has effected a court system that is more effective, efficient and equitable (the so-called 3Es in social policy). At the same time it is important to appreciate that the SAC is a limited resource. There is still a very significant problem concerning the unrepresented litigant in Family Court. There is still more that can and should be done in achieving the 3Es, especially reaching out to community agencies and to diverse minority groups whether aboriginal or immigrants.) but, as noted above, a case can readily be made that SAC has certainly facilitated the more active client's pursuit of the available opportunities for justice and problem-solving in Family Court... Overall, then, while clearly the evidence underlines the crucial contributions of SAC for both clients and the court system, it is important to be realistic - as many judges have indicated, the problem of adequate legal counsel may have gone from a ten to an eight, and as community agencies and others have noted, the contribution to a more holistic, problem-solving court has been quite modest.

Report at 105

Concerns and Recommendations

The following concerns were raised and recommendations made in the report:

  • Promotion and awareness: public awareness of SAC and the appreciation of the SAC role among the court role players could be improved
  • First past the post: a concern was raised that one party in a dispute can manipulate the situation to effectively shut the other party out from any free legal advice, as SAC lawyers cannot give legal advice to both parties
  • More SAC: many of the clients expressed a need for an extension of the SAC service
  • Targeting of narrower, needier client base: as there are no restrictions on accessing the services, the assessment showed that SAC is much used by people who could turn to other sources for legal advice

Permanent Implementation in Halifax and Sydney

  • duty counsel
  • family law
  • legal advice
  • legal aid
  • self-represented litigants
imeline  
October 2003 SAC implemented in Halifax
April 2004 SAC implemented in Sydney
July 2006 Evaluation Report released
2004 Alberta Class Proceedings Act

Alberta

Government of Alberta

  • Court of Queen's Bench
  • Court of Appeal

New legislation introducing a class actions regime in the Alberta Court of Queen's Bench and Court of Appeal.

Alberta Class Proceedings Act

  • The Act does not provide for the establishment a class action fund (unlike Ontario and Quebec)
  • The "no cost" recommendation contained in the Final Report was not adopted (at 154). "Parties in an Alberta class proceeding will be subject to pay legal costs and disbursements under the usual, loser-pay rules applicable to most proceedings in Alberta." (Alberta's New Act)
  • Non-profit corporations may act as representative plaintiffs in a class action (unlike British Columbia and Ontario)
  • Certification:
In order to be certified by the court as a class action in an Alberta proceeding:

  • There must be a suitable representative plaintiff for all classes and subclasses of plaintiffs;
  • The claims of prospective class members must raise a common issue, whether or not the common issue predominates over issues affecting only individual prospective class members (this feature is common to other Canadian provinces but different from American practice);
  • A class proceeding must be the preferable procedure for the fair and efficient resolution of the common issues having regard to a number of factors expressly set out in the new Act;
  • The Statement of Claim must disclose a cause of action; and
  • There must be an identifiable class of two or more persons.

Under the new Alberta Act, certification is not barred solely because:

  • The number or identity of each prospective class member has not been ascertained or "may not be ascertainable, " or
  • The claims involve individual assessments of damages, separate contracts or different remedies for each class member.
    Alberta's New Act
  • National Class Actions in Alberta: The class actions have to be divided into resident and non-resident classes. "Alberta residents who meet the criteria to be members of the certified class of plaintiffs are automatically bound by the outcome of the lawsuit, unless they opt out. Non-Alberta residents who meet the criteria to be class members must opt in, or they will not benefit from the lawsuit. This approach is the same as British Columbia's but different from Ontario's, which does not require class definitions to reflect residency and does not require non-residents to opt in." (Alberta's New Act)
  • Discovery: The rights of oral and documentary discovery are the same as in any other proceeding.
Alberta has not provided much legislative guidance on numerous procedural issues that have arisen on certification motions elsewhere in Canada, such as:

  • Does a Statement of Defence have to be filed before a certification motion? In Ontario and B.C., the courts usually do not require a Defence. This is important, not only tactically, but because filing a Defence triggers full discovery rights under provincial rules of civil procedure. In Alberta, an Affidavit of Records (known elsewhere as an Affidavit of Documents) is presumptively required to be served 90 days after the Defence is filed, or costs sanctions apply;
  • What is the onus on a plaintiff to provide substantive, first-hand affidavit evidence on a certification motion? Plaintiffs often commence a certification motion with a solicitor's affidavit supporting certification. The Supreme Court has held that there must be "some basis in fact" to certify a class proceeding. The necessary evidence typically depends on the nature and complexity of the action but should support the plaintiffs' proposed class definition(s) and alleged common issues;
  • What is the extent of pre-certification documentary discovery rights? In Ontario and B.C., a complete Affidavit of Documents is usually not required but relevant documents may be demanded and ordered to be produced.
    Alberta's New Act
  • Limitation Periods: Limitation periods are automatically suspended as of the commencement of the proceeding. "This rule applies whether or not the class proceeding is ultimately certified. The limitation period resumes running against the person when he or she is excluded from the class (by opt-out or court ruling), when certification is denied or abandoned, or if the class proceeding ends (by decertification, settlement, dismissal or discontinuance)." (Alberta's New Act)
  • Contingency Fee Agreements "must be approved by the court before or at the certification of the class proceeding. The timing of such an approval is, within Canada, unique to Alberta. Like other jurisdictions, court approval is also needed when a class action is settled." (Alberta's New Act)
  •  

2000 Report

The report contained the following recommendations:

  • criteria that must be met to establish a class action;
  • a certification procedure to determine that it is appropriate for an action to proceed as a class action;
  • conduct of the proceeding by a representative plaintiff whose suitability is determined by the court;
  • court-approved notice to class members (or potential class members) that a class action has been certified;
  • an opportunity for resident class members to opt out of the class proceeding and for non-resident class members to opt in;
  • provision for the formation of subclasses, each with its own representative plaintiff, where some members of the main class share issues that are not common to other members of the main class;
  • active judicial case management of the proceeding;
  • notice to class members that the common issues in the class action have been resolved, whether by settlement or judicial disposition;
  • provision for the determination of individual issues separate from the common issues;
  • aggregate or individual assessment of damages;
  • various provisions designed to ensure the protection of the interests of class members, such as:
  • court approval of a settlement or discontinuance of the action,
  • court approval of an agreement for the payment of fees and disbursements entered into between the representative plaintiff and class counsel, and
  • judicial discretion to allow class members to participate in the proceeding;
  • provisions regarding the suspension of limitation periods; and
  • binding effect of the outcome of the action on class members.

We also make recommendations for defendant class actions. These recommendations a re based o n the plaintiff class action p rovisions, but with certain modifications to take into account differences in the position of plaintiffs and defendants in litigation.

Final Report at xxiii-xxiv.

 

The Alberta Law Reform Institute issued a report in December 2000 containing detailed recommendations for class action reform, suggesting that legislation be adopted.

On April 1, 2004, the Alberta Class Proceedings Act came into force.

The phenomenon of many individuals having the same or similar claims against one or more defendants is a modern reality. If dealt with on an individual basis, this litigation can be costly, complex and cumbersome. As they have in other jurisdictions, lawsuits involving large numbers of claimants are being brought in a wide variety of cases. Recent Alberta examples include the much-publicized wrongful sterilization litigation, the residential school litigation and the pine shakes litigation. Examples elsewhere include cases involving defective consumer or industrial products, misrepresentation of products or services, securities breaches, mass disasters and creeping disasters (such as injury to health over a prolonged time period or environmental damage), to name but a few. Courts in Alberta face the challenges of the growing complexities of litigation.

 

Permanent implementation

  • Alberta Court of Appeal
  • Alberta Court of Queen's Bench
  • class action litigation
  • legislation
  • reform
December 2000 Final Report released by ALRI
2003 Class action legislation introduced
April 2004 Alberta Class Proceedings Act came into force
2004 Alberta Law Line

Alberta

Legal Aid Alberta

Legal Aid Alberta telephone-based program providing free legal information, referrals, and advice province-wide.

Alberta Law Line is a telephone based program providing free legal information, referrals, and advice province-wide. The legal advice services are offered for specific categories of legal problems and only to those who qualify under the financial eligibility guidelines.

Alberta Law Line was established in 2004 and officially recognized as a permanent program in December 2005 after an independent evaluation.

The Alberta Law Line was launched by Legal Aid Alberta to fill gaps in legal services available to Albertans and help them overcome barriers to access such as delay, lack of awareness or understanding of the legal system, and affordability.

 

Permanent Implementation

  • legal aid
  • legal hotlines
  • legal services
2004 Alberta Law Line established
Dec. 2005 Alberta Law Line officially recognized as a permanent program
2004 BC Court of Appeal Case Tracking and Management System (WebCATS)

British Columbia

British Columbia Court of Appeal

British Columbia Court of Appeal

BC Court of Appeal's on-line case-tracking and case-management system

WebCATS is a standard case-tracking system with screens for initiating information, (case profile), party information, filings, court and chambers appearances. In addition, there is a rota, or sitting schedule, which is prepared using an inexpensive tool called SmartRoster (which was designed as a scheduling tool for volunteers with church and community organizations). Both schedulers for court and chambers each have their own scheduling module.
 

A. Rota

There are 23 judges in the Court of Appeal -- 15 full-time judges and eight part-time (supernumerary) judges... [R]egular judges sit about 20 weeks out of the year and supernumerary judges sit 10 weeks a year. There are vacations in the summer, at Christmas, and one week around Easter. Once the calendar for the sitting year is determined, the judges are rotated into their sitting weeks. Based on the number of judges available, the number of full divisions (three judges) and chambers (one judge) is determined. The names of the judges are entered into WebCATS and this rota becomes the basis for several other features, including the scheduling and appearance screens.

Reports can be created, based on a sitting day or week. The staff use these reports to prepare the material that has to be circulated to the judges 2-3 weeks in advance of the hearings.

Judges use WebCATS to check their schedules and to see which cases they are assigned to. Their access also allows them to review individual files before the hearing.
 

B. Scheduling

There is also a scheduling function in WebCATS. The judicial scheduler can enter the system and search for available time for court or chambers. When deciding to schedule a matter, the scheduler can then click and view the time allotted for each case (the Court of Appeal schedules court hearings for a fixed time period; i.e. two hours or four hours). There is some room for overbooking, but generally the four-hour court day is scheduled for four full hours of hearings.
 

C. Electronic Documents and Statistics

In future, it is anticipated that all necessary documents, including all reserve and oral judgments on a file, will also be part of the WebCATS system. With this achievement, judges would no longer need paper documents in order to review files.

In addition to reports for the court lists, WebCATS also has a statistical component, which is reviewed monthly so that progress can be monitored on the completion of cases. An Excel spreadsheet provides year-to-date information as well as a comparison with the previous year's information for the same period.

Any delay statistics are calculated using an Access database. Yearly delay statistics are tabulated and collected by the Canadian Judicial Council's Appeal Courts Committee. Ad hoc reporting can be done for specific projects -- for instance, the number of self-represented litigants is increasing, so to assist with the processing of these cases, it is possible to sort them by type (i.e. family or criminal cases) and to assign appropriate time to hear these appeals.
 

D. Create Documents

WebCATS also has a feature which allows a user to create a document and then store it as a filing. For instance, there are certain documents which are sent out with every new filing. There is a letter to the lower court judge indicating that an appeal has been filed. It is simple to go into the "create document" list, select the document and enter the file number. The template for the letter comes up, with the standard information pre-filling the form, and the user enters any other relevant information. Bail documents are created this way. They are then stored in WebCATS and available for review through the filings screen in WebCATS.

Administrative and IT Environment at 8-9

Digital Audio Recording System (DARS)

A Digital Audio Recording System (DARS) was introduced into British Columbia in 2006. Digital recording captures the courtroom audio on a computer hard drive, thus eliminating the need for physical storage (such as audiotapes) and relying instead on memory capacity on servers. Requests for the audio from a specific proceeding can be burned to a CD easily...

To access the audio, a judge goes to a special screen in SCSS and requests a transfer of the digital audio to the individual computer. Once the judge clicks a time stamp in the court clerk's notes, the digital recording player opens and the judge just has to click playback and the audio will start to run at the exact place in the audio where requested. Judges find this extremely useful as a means of confirming testimony when writing judgments...

In addition to the recording function of DARS, court clerks could synchronize their notes (called minute sheets) with the recording, by using WebCATS as the vehicle for taking and storing the minute sheets: noting the progress of the hearing such as indicating the names of the speakers, when the court breaks for lunch, and any orders or directions given by the Court. The minute sheets are included in every paper court file as a record of the proceedings; they are now also stored in WebCATS, separately for each hearing.

Once the infrastructure was designed, enhancements were made to WebCATS to allow the clerk's minute sheet to form part of the court hearing screen. It works by letting the clerk open the minute sheet designated for the scheduled court or chambers hearing through WebCATS...

Once the recording begins, hitting "enter" places a time stamp (linked to the audio) in the minute sheet and the court clerk continues making notes. Only milestone points in the submissions are noted, such as to identify changes in speaker or when breaks are taken. At the conclusion of the hearing, the court clerk then has notes that can be edited accurately and record the time elapsed for the hearing.

The digital recording product used is called "For the Record" (FTR). The player looks like a tape deck, with buttons for "play," "fast forward" and "stop". To open the audio, any user (such as a judge or judicial assistant), opens the relevant minute sheet from WebCATS and clicks any of the time stamps. This starts the player, which pops up on the screen.

If judgment is reserved, the judge can access the audio recording through his or her office computer. The judgment transcriber can also access the audio for the purpose of preparing any oral judgments. The court clerk can access the audio to confirm orders made at the hearing. If a party wants a transcript of the proceedings, outside transcribers will produce a transcript of the proceedings from a CD issued by registry staff.

Administrative and IT Environment at 10-12

Future Developments

Recent years have produced a good working relationship between the judiciary and Court Services. The Court of Appeal has created its own infrastructure and has very little need to ask Court Services for support. However, one area where this is changing is e-filing; the Court of Appeal has been left behind on this project because it was a Court Services project implemented to streamline the processing of documents in the province's largest courts (the Supreme Court and Provincial Court). The separate infrastructure of the Court of Appeal technical environment and, again, the small size of the Court have hampered its participation in e-filing.

However, early on in the Court Services Online project, the Court of Appeal was added to the internet portal. WebCATS proved a beneficial product for online access and has been able to provide both civil and criminal information online. With the online presence, WebCATS provides an opportunity to easily incorporate e-filing.

Plans are underway to add the Court of Appeal to the e-filing project. Once this Court is part of the e-filing infrastructure, documents already collected will be stored in WebCATS. With the addition of a scanning project, most of the documentation collected by the Court of Appeal can be stored in electronic form. This should reduce the flow of paper in the Court of Appeal, but it will not eliminate it; some judges still want to read a paper document and do not want to read from a computer screen.

WebCATS, a web-based case-tracking and case-management system, was implemented at the Court of Appeal in 2004. It replaced the previously existing DOS-based system, CATS (Court of Appeal Tracking System), which had been used for 20 years for scheduling, rota, and case-tracking functions.

To modernize systems and take advantage of technology to ensure that the Court is responsive to the needs of litigants.

Permanent implementation

  • British Columbia Court of Appeal
  • information and communication technologies
  • litigation management
2004 WebCATS launched
2006 Digital Audio Recording System (DARS) added to WebCATS
2004 BC Court of Appeal Settlement Conference Program

British Columbia

Judicial Settlement Conference Committee, BC Court of Appeal

BC Court of Appeal

BC Court of Appeal practice directive introducing voluntary settlement conferences.

The settlement conference is interest-based, not rights-based, which is to say that the presiding judge does not speak to the factual or legal merits of the appeal, but rather seeks to find a mutually-agreeable resolution with the parties.

Participation in settlement conferences is entirely voluntary. All parties involved must consent to the process and anyone can revoke consent at any time. If consent is revoked during the process, the process comes to an end.

The procedure is set out in Practice Directive #8. In brief, a joint request for a settlement conference must be made, which takes the file out of the usual appeal stream and thus suspends time limits during the settlement conference process. Settlement conference procedure is handled by the Law Officer, not the regular registry staff; accordingly, materials relating to the settlement conference remain with the Law Officer and are not part of the regular appeal file.

The process involves two steps. First, following the joint request for a settlement conference, the parties (or their counsel) have an initial telephone conference with a judge, to determine if the matter is suitable for a settlement conference. If the matter is deemed suitable, the second step, a settlement conference, takes place.

BarTalk at 17
The first request for a settlement conference was made in December 2004 and the most recent, the 12th request, was made in June 2008. Of the first 11 requests, four involved family law matters; the other seven have been a mix: two involved personal injury, two involved commercial issues, one was a wrongful dismissal case, one was a human rights case, and one involved an appeal from an order striking out a statement of claim.

Four requests have progressed to a full settlement conference. In one case, the parties settled after the conference. In the other three, the parties settled at the conference. The remaining seven cases did not go to a settlement conference for various reasons: (a) at the initial teleconference a determination was made by the judge or the parties that the matter was not suitable for settlement conference; (b) a party withdrew consent; and (c) the parties agreed to discontinue the settlement conference process.

Only one request, the twelfth, was made in 2008, in a family law matter. This settlement conference had not yet concluded by the end of 2008.

A two year pre-hearing judicial settlement conference pilot project was introduced at the BC Court of Appeal in November 2004. At the end of the pilot period, the program was extended for an unlimited period.

"The purpose of a settlement conference is to assist parties to resolve appeals at an early stage, to save expense to the parties and to expedite the final resolution of the dispute" (Annual Report at 32).

Ongoing program

  • British Columbia Court of Appeal
  • practice directives
  • settlement conferences
November 2004 Pre-hearing judicial settlement conference pilot project launched
2006 Program extended for unlimited period
2004 BC Family Mediation Practicum Project

British Columbia

BC Dispute Resolution Practicum Society

Provincial Court of British Columbia (New Westminster Registry)

BC Dispute Resolution Practicum Society project to provide free mediation services from new mediators for family disputes about custody, access, guardianship, child support, and simple property matters.

The Project provides free mediation services for family disputes about custody, access, guardianship, child support, and simple property matters.

The Project was initiated as a means of providing trained, but inexperienced family mediators with more opportunities to practice their skills. In particular, it was intended as a way of meeting the specialized training requirements in family mediation, and of supervising mediators as they learn to manage the unique circumstances characterizing family disputes within the mediation process. At the same time, and in this context, family clients were to be provided with high quality mediation services.

Report at i

Each mediator is guided by a senior, highly trained mediator (or mentor), who assists the mediator to prepare for and conduct each session.

The Family Mediation Practicum Project has been operating in New Westminster since January 2004. It is funded by the Law Foundation of BC and the BC Ministry of Attorney General and is administered by the BC Dispute Resolution Practicum Society, a non-profit society.

 

Results of an evaluation of the Family Mediation Practicum Project were released in June 2005. The Report concludes that:

[T]he Family Mediation Pilot Project has clearly been a success. It has been both client-centred and appropriate in tailoring its operations to the needs of its clientele. Its structural or operational features, as well as program outcomes, have been declared a practical success. Finally, its relationships with other family justice agencies and practitioners have been collaborative and constructive, building a firm foundation upon which the Project can build a place in the family justice and mediation communities.

The Practicum Project has successfully achieved all four of the objectives articulated in connection with the project goal. As a test of a delivery model in which mediators practice their skills under the supervision of senior mediators, it has been found to be a highly effective way of providing mediators with practical experience in mediating family disputes. At the same time, high quality mediation services have been delivered to family clients - in an environment in which they feel safe, and able to participate fully in the mediation process.

Exceptionally high satisfaction ratings were reported by both of the client groups the Practicum Project serves: practicum mediators and mediation clients. Additionally, innovations such as "fast tracking" 1st joint mediation sessions, imposing a 3-session limit on mediation, and a draft or evolving Memorandum of Understanding have achieved both efficiencies and improved mediation outcomes. The biggest challenges to the Project lie largely in its external operating environment. Although gradually changing, conditions are not particularly supportive for mediation as a favoured option in dispute resolution - with the consequence that many of those who have an interest in the practice of mediation must pursue it without any particular hope of a return on their investment in it.

Obtaining ongoing, sustainable funding of the fixed cost component of the Project is a continuing source of concern. Funding agencies can, however, be assured that the Project has been cost-effective, and has contributed to our knowledge of best practices both in mediation practicum programs and, more generally, family mediation. It has, as well, been an excellent example of partnership between a government and non-profit organization - the BC Dispute Resolution Practicum Society and the Dispute Resolution Office of the Attorney General's Ministry have worked together very successfully to produce a very high-quality service. If a decision is made to confirm the Family Mediation Practicum Project as a continuing program, it can be expected that this program will make a positive contribution to the infrastructure for collaborative approaches in dispute resolution within the province.

Permanent implementation

  • alternative dispute resolution providers
  • education
  • family law
  • mediation
January 2004 Project launched as a pilot at New Westminster Registry
June 2005 Results of evaluation released
June 2005 Project made permanent
2004 BC Supreme Court Scheduling System (SCSS)

British Columbia

BC Supreme Court

Electronic system for streamlining the assignment of judges and masters and scheduling of matters before the BC Supreme Court.

In 2004, the Supreme Court Scheduling System (SCSS) was developed. It is a complex system used by the manager and trial coordinators throughout the province to organize a myriad of proceedings. It is also used by judges to keep track of where they are sitting, the cases they are sitting on, and where their travel will take them. The judicial assistants have access to the system as well and are able to plan for their judges' travel as well as easily locate a judge who is on circuit...

This sophisticated program uses colour-coding to differentiate between types of hearings as well as the availability of judges. For instance, green on the scheduling calendar indicates the judge is available in that location, yellow indicates the judge is assigned, and red indicates the judge is seized of a case. In addition, the day is divided into three scheduling options: 1) before court; 2) scheduled court sitting (10 a.m. to 4 p.m.); or 3) after court. All three periods are colour coded with green (available), yellow (assigned), and red (seized).

Colours can also refer to the type of matter scheduled. Green is for criminal matters, pink refers to civil matters, and blue refers to family matters. The schedule can indicate if the judge is scheduled to sit in two different locations on the same day, which sometimes takes place through telephone or video link. Any case information in bold indicates a priority scheduling. Shades of light and dark colours indicate whether a matter is confirmed or is tentatively scheduled.

Judges can check their schedules by either parameter - date range or location. While scheduling of cases is done approximately one week before the hearing, other matters such as previously scheduled continuations and seized matters will appear earlier. Judges are able to print reports of their sitting schedules and locations for any time period.

Administrative and IT Environment at 7, 9-10
OpenRoad [the creator of SCSS] worked closely with users to identify their needs, and create a system that closely matched the existing workflow of the Supreme Court. Close attention was paid to creating visual representations of the underlying data, to provide at-a-glance views of the current hearing workload, as well as intelligent searching mechanisms to suggest the best possible dates for new hearings.

Trial Co-ordinators now have instant access to information about all hearings currently in progress within B.C. Judges and their assistants can quickly see the cases to which they are assigned. SCSS has greatly improved the way in which cases are scheduled within the province.

The Supreme Court Scheduling System (SCSS) was launched in July 2004 in order to streamline the assignment of judges and masters and scheduling of matters before the Court. Between 2004 and 2006, SCSS was implemented in all 29 locations where the Court sits.

Prior to SCSS, hearings for each location were managed independently via a manual system consisting of Word documents and paper diaries, as well as an older DOS based system in the higher volume locations of Vancouver and New Westminster. The goal of SCSS was to move to an integrated system, shared by all locations for scheduling hearings and assigning Judges and courtrooms.

 

To modernize systems and take advantage of technology to ensure that the Court is responsive to the needs of litigants.

SCSS has enabled us to continue to improve the scheduling process. In 2004, 436 trials were heard in Vancouver and 19 scheduled trials were bumped. In 2005, 389 trials were heard in Vancouver, but only 6 scheduled trials were bumped. In 2004, 639 Long Chambers applications were heard while 45 were bumped. In 2005, 738 Long Chambers Applications were heard, but only 27 were bumped (please see Management and Statistical Information, Figure 4-5 at p.19). We also continue to work to implement enhancements to SCSS to further streamline the scheduling of matters before the Court and the rota assignments of members of the Court.

Permanent Implementation

  • information and communication technologies
  • litigation management
  • Supreme Court of British Columbia
July 2004 SCSS launched
2004 SCSS implemented in 12 of 29 locations
2005 SCSS implemented in 13 more locations
2006 SCSS implemented in remaining 4 locations
2004 Nova Scotia Self-Represented Litigants Project

Nova Scotia

Nova Scotia Department of Justice

All Nova Scotia Courts

Department of Justice project to identify the greatest for self-represented litigants in Nova Scotia courts and to make recommendations to improve services and develop programs.

The Needs Assessment resulted in a number of recommendations, including: a) developing processes, tools, and training for court staff for dealing with self-represented litigants; and b) providing and promoting additional, accessible print and web-based information for self-represented litigants.

Implemented reforms included:

  • A comprehensive website was developed containing self-help guides and tips.
  • Court staff worked with law student volunteers on FAQs for the SRL Project website to provide information to the public and guidance to court staff. The questions and answers differentiate between what is legal advice and what is legal information.
  • Signs were posted at the Family Law Information Centres and Court Administrative Offices to distinguish between legal advice and legal information by telling the public what court staff can and can't do.
  • A "Helpful Websites" List was prepared as a handout at the Court Administration Offices and online.
  • Brochures are available from the Court Administration Offices and online. They are updated on an annual basis and new brochures are developed from time to time. Many are translated into French.
  • In March 2006 an online forms program for Small Claims called Interactive Court Forms for Nova Scotia was launched.

The Self-Represented Litigants Project of the Court Services division of the Nova Scotia Department of Justice surveyed 40 judges, 163 court staff and 58 self-represented litigants (SRLs) to identify the greatest needs for courts and SRLs and to make recommendations to improve services and develop realistic programs for SRLs. The project team also observed 20 court hearings that involved the participation of one or more SRLs.

The interviews, focus groups and questionnaires used by the SRL project team confirmed expectations that SRLs are impacting in a significant way on the day to day administration of the courts, and often do not have sufficient knowledge to adequately represent themselves and may be disadvantaged by representing themselves.

 

An increasing number of litigants in our Nova Scotian courts are self-represented. Statistics from elsewhere in Canada, North America and other countries reflect this trend. The statistical information gives us reasons for this trend; the financial cost of engaging a lawyer, increasing non-eligibility for legal aid, the consumers' movement, anti-lawyer sentiment, increased literacy, availability of do-it-yourself products, and the growth of non-lawyer practitioners.

 

Several recommendations implemented

  • Nova Scotia Court Services
  • Nova Scotia Courts
  • reform
  • self-represented litigants
March 2004 Needs Assessment including recommendations released
2004 Ontario Court Case Tracking System (FRANK)

Ontario

Court Services Division

Civil, Family, Small Claims, Divisional Court and Superior Court of Justice

Ontario Court Services' case tracking system.

FRANK provides a single, centrally managed case tracking system for use by court staff in civil, family, small claims and Divisional Court cases as well as Superior Court criminal cases. It automatically monitors regulated time periods for individual cases as prescribed by the rules; provides an automated index of cases; generates many required forms, notices and court lists; and also provides a calendaring and scheduling tool for trial schedulers.

CJRP at 123

FRANK allows statistical data about court activity to be extracted for the purpose of reporting. This has replaced the manual collection of data previously in place. Electronic case tracking also permits continuous monitoring of case volumes, case flow and dispositions.

Provincial case tracking system (FRANK) was developed to address management information and operational needs of Ontario's courts and to provide extensive data about case processing. Province-wide phased implementation was initiated in 2004 and is almost complete, with only one site, Toronto, remaining unconverted. It is anticipated that this site will be converted by 2009, completing the province-wide implementation and standardizing the use of a single court application to track all civil, family, Small Claims, Divisional Court and Superior Court of Justice Criminal Court cases.

A key element of CSD's future plan is to add document management functionality to FRANK in 2008-09, which will then permit the re-introduction of electronic filing of documents in the civil justice system. Once in place, the capacity to file documents electronically will be a major advance.

 

To more effectively manage court cases, collect data and facilitate tracking activity.

Permanent Implementation

  • information and communication technologies
  • litigation management
  • Ontario Court Services
  • Ontario Courts
2004 Province-wide phased implementation initiated
April 2005 Province-wide electronic data collection available
2007/2008 All court sites province wide converted to FRANK, except Toronto
2008/2009 Anticipated finalization of province-wide phased implementation of FRANK
2005 BC Court Services Online (Electronic Filing)

British Columbia

Ministry of Attorney General

  • BC Supreme Court (Civil)
  • Provincial Court (Small Claims)

BC Court Services Online service offering a method for litigants to file and access their court documents online.

The e-filing service allows registered users of Court Services Online to submit electronic court documents to the Civil Supreme and Provincial Court registries. In order to e-file, you must have a registered account with CSO or BC Online, accept the User Agreement and have a registered card against the account. For information on how to register, click the Register link from the CSO Home Page, under the Services menu.

The service fee to e-file a document is $7.00 per package. A package can consist of 1 or many documents that all relate to the same court file number.

In order to e-file each account must first accept the User Agreement. If you already have a CSO account, the account manager must accept the new User Agreement on behalf of the account before users in the account can access e-filing. New accounts also must accept the User Agreement in order to access e-filing on the CSO website. E-filing is available for most Supreme Court Civil and Provincial Small Claims documents. For restrictions on which documents can not be filed, refer to Supreme Court Rule 69 (5) and Small Claims Rule 22.

Documents submitted by e-filing must be in PDF format and no bigger than 8MB. Reader enabled electronic forms are available free of charge online through filing or you can access them from the following links; Supreme Court Forms and Small Claims Forms.

E-filing is a simple process and can take less than 3 minutes to complete. If you would like to see the process of filing to an existing file and creating a new file, watch our two online demos found on the CSO Home Page. Once you e-file your document, you can retrieve your electronic filed copy of the document via your CSO account (Electronic Filing at 1-2).

The e-filing pilot project was commenced in Kelowna through Court Services Online (CSO) in October 2005 and included Provincial Court and Supreme Court civil filings. The pilot was expanded in 2006 to 6 other registries, including Vancouver. In 2007, e-Filing went live in 16 registries. As of December 1, 2008, registered users can e-file to all court locations in the province. Registries that support e-filing are also scanning paper-filed documents to move the courts closer to complete electronic court files. As of 2007, judges of the Court have been processing e-Filed orders and viewing court files on-line.

One of the strategic goals of the BC Government is the provision of electronic web-based transactions to facilitate the interaction of the public and businesses with government services and court services. Court Services Online (CSO) is part of an electronic court services project designed to develop web-based services to facilitate interaction with the court registries across our province (Electronic Filing at 1).

Permanent implementation

  • British Columbia Court Services Branch
  • electronic filing systems
  • Provincial Court of British Columbia
  • Supreme Court of British Columbia
December 2004 CSO launched
July 2005 Legislative rules to facilitate e-filing came into effect
October 2005 E-filing component introduced in Kelowna as part of CSO
2006 E-filing expanded to 6 other registries, including Vancouver
2007 E-Filing went live in 16 registries
December 2008 Registered users can e-file to all court locations in the province

 

2005 BC Supreme Court Rules Fast Track Litigation (Part 15)

British Columbia

Attorney General of British Columbia

Supreme Court of British Columbia

The new fast track rule combines the existing expedited litigation rule (formerly Rule 68) and the fast track rule (formerly Rule 66) to provide a single simplified and fast procedure when the amount in controversy is $100,000 or less or when the trial of the action can be completed in three days or less. If the matter fits the fast track criteria, either party may put the case into the fast track. Either party can apply to have the case removed from the fast track (or the court may do so on its own).

If the matter fits the fast track criteria, either party may put the case into the fast track. Either party can apply to have the case removed from the fast track (or the court may do so on its own).

In a fast track action, the parties cannot file contested applications without first attending a case planning conference. Oral discovery in fast track actions are (absent consent) limited to two hours combined by all parties adverse in interest. Costs in fast track actions are limited to $8,000 for one day trials, $9,500 for two day trials and $11,000 for trials lasting three or more days. Most importantly, if a plaintiff recovers judgment of $100,000 (or less) or a trial is completed in three days (or less) the limited cost provisions apply. This will provide an incentive to ensure that cases that should be in the fast track are put into the fast track (Key Features at 3-4).

Simplified procedures for "economical track litigation" was identified as a potential area of reform in the BC Justice Review Task Force's 2002 report Exploring Fundamental Change, with analysis of Rule 66, Fast Track Litigation, serving as a basis for discussion. Following this report, the Ministry of the Attorney General and the Supreme Court worked together to explore 'economical litigation' models. (Green Paper at 13)

The result of this was the Expedited Litigation Pilot Project. The two-year pilot project commenced on September 1, 2005 in Vancouver, Victoria, Prince George, and Nelson. The rule was extended province-wide as of January 1, 2008.

In its November 2006 report, the BC Justice Review Task Force analyzed the effect of Rule 68 and made a number of recommendations. After several drafts and consultations, it was announced that the new civil and family rules have been adopted and will be fully implemented July 1, 2010. Part 15, the new fast track litigation rule, combines Rule 68 with Rule 66 "to provide a single simplified and fast procedure when the amount in controversy is $100,000 or less or when the trial of the action can be completed in three days or less" (Key Features at 3).

"[T]o provide a single simplified and fast procedure when the amount in controversy is $100,000 or less or when the trial of the action can be completed in three days or less" (Key Features at 3).

Permanent implementation

  • expedited litigation
  • proposed reforms
  • rules of court
  • Supreme Court of British Columbia
  • Summary Judgments
July 2002 BC Justice Review Task Force report released
September 2005

Two year pilot project launched

November 2006 Effective and Affordable Civil Justice released
January 2008 Rule extended province wide
December 2008 Second draft rules consultation concluded
July 1, 2010 Implementation of new rules, replacing Rules 66 and 68

 

2005 Newfoundland and Labrador Case Management (Rule 18A)

Newfoundland and Labrador

Rules Committee of the Trial Division

Supreme Court of Newfoundland and Labrador (Trial Division)

Overview of the case management process Supreme Court of Newfoundland and Labrador rule.

 
An application for case management can be made on the ground that the proceeding will involve a complex issue or a lengthy trial, or that the preparation for trial or pre-trial applications in the proceeding would otherwise benefit from management, supervision and direction by a single judge.

A case management order can be obtained via an interlocutory application, informally through a request to the Chief Justice or a designated judge if all parties consent, by request to the pre-trial conference judge, or on a judge's own motion.

Once a case is approved for case management, a meeting is set up where a case judge and counsel may discuss any of the following:

  • the development of a case management plan, including milestones;
  • the procedures to be followed for further case management meetings;
  • the nature and extent of the pre-trial procedures that may be required to advance the proceedings;
  • the timing and methodology associated with the making of any application;
  • the dispensing with procedural steps associated with any application;
  • the possibility of resolving procedural steps by agreement;
  • the appropriateness of restructuring any or all of the proceedings for trial;
  • the setting or re-adjustment of timetables for steps to be taken in the proceedings;
  • the determination of readiness for trial of some or all of the proceedings, if more than one;
  • such other matters as would be discussed and dealt with at a pre-trial conference pursuant to rule 39.02(5);
  • the appropriateness of holding a settlement conference or mediation session;
  • the manner of conduct of the trial;
  • the preparation and filing of a certificate of readiness when the matter is ready for trial; and
  • any other matters pertinent to or affecting the proper conduct of the proceeding. [r.18A.06]

If a party fails to attend case management meetings, acts in a manner contrary to the spirit of Rule 18A, or obstructs the process, a judge can make any order as to costs. Provisions are also made to allow parties to participate in case management conferences through audio conferencing.

The Rules Committee of the Trial Division of the Supreme Court of Newfoundland and Labrador introduced An Amendment to the Rules of the Supreme Court on November 30, 2004. The Amendment brought in Rule 18A - Case Management. This Amendment was forwarded to the Office of the Legislative Counsel on September 19, 2004, filed on September 19, 2005, and published in the September 23, 2005, edition of The Newfoundland and Labrador Gazette, as Newfoundland and Labrador Regulation 84/05. This Rule came into force on January 1, 2006.

[T]o provide for selected proceedings a level of management and direction with respect to pre-trial procedures and preparation for trial that is more organized, coordinated and focused than what would be normally applicable to cases proceeding through the system from pleading to trial, with a view to:

  • ensuring that maximum benefit is gained from each trial day;
  • making more efficient use of Court resources;
  • ensuring adequate and accurate amounts of time are reserved for trial; and
  • providing for the public interest in access to justice in a timely and cost effective manner (Rule 18A).

Permanent implementation

  • case planning
  • rules of court
  • Supreme Court of Newfoundland and Labrador (Trial Division)
January 2006 Rule came in force

 

2005 Nova Scotia Civil Rules Revision Project

Nova Scotia

The Courts of Nova Scotia

  • Court of Appeal
  • Supreme Court of Nova Scotia, General and Family Divisions

Project for comprehensive review and revision of the rules, with the aim of developing rules which are efficient, effective, and clear.

 
The Supreme Court of Nova Scotia commenced a comprehensive Rules review in 2004, inviting the Nova Scotia Law Reform Commission, the Nova Scotia Barristers' Society, and the Nova Scotia Department of Justice to participate in the Rules Revision Project. A Steering Committee was formed chaired by Justice John M. Davison, as well as a Supreme Court Drafting Subcommittee, Supreme Court Family Drafting Subcommittee, and Appeal Court Drafting Subcommittee. Working Groups were established to look into eight areas:

  • Appeals
  • Judicial Review
  • Discovery and Disclosure (Excluding Experts)
  • Evidence (including Experts)
  • Early Dispute Resolution
  • Determinations Without Trial
  • Smaller Claims
  • Management of Litigation

The first phase of the Nova Scotia Rules Revision Project, the review and discussion of policy issues, was completed in 2004-5. It included the development of an Issues Memorandum and the reports of several working groups which made specific recommendations on various issues. A new set of Rules was drafted based on these recommendations.

The new Rules received tentative approval by the Nova Scotia judiciary and were released in February 2008. The new Rules were formally approved in June, 2008 and went into effect 1 January 2009, except Part 13 - Family Proceedings, which were delayed for further review, with an implementation date of 30 June 2010.

 
Although the Rules have served the province well, concerns about delays, costs, and undue complexity of court proceedings point to the need for the Rules to be examined in detail and re-written where required. The Supreme Court of Nova Scotia, has been conducting a comprehensive review and revision of the Rules. At the invitation of the Supreme Court, the Law Reform Commission, the Nova Scotia Barristers' Society, and the Nova Scotia Department of Justice are also participating in the Rules revision project.

The aim of this collaborative effort is to develop Rules which are efficient, effective, and clear. This should help to reduce delays, lessen expenses and lead to more satisfactory results, thereby improving access to justice.

Website.

New Civil Procedure Rules in effect.

  • Nova Scotia Courts
  • reform
  • rules of court
2004 Rules Revision Project commenced
2005 Working Groups reports issued
February 2008 Draft Rules received tentative approval
June 2008 Rules formally approved
January 2009 Rules went into effect, except Part 13
June 2010 Implementation of Part 13

 

2005 Nova Scotia Family Law Information Centres (FLICs)

Nova Scotia

  • Nova Scotia Department of Justice
  • Supreme Court, Family Division

Supreme Court (Family Division)

Information centres for self-represented litigants with family law issues located in the courthouses.

FLICs offers free legal information and occasional sessions related to family law issues. Legal advice is not provided.
 
FLIC goals are to:
  • offer information about court processes, legal topics, and court services
  • develop and offer family law information clinics
  • make referrals to community agencies and programs
  • offer computer access
You can get information at a FLIC about:
  • court processes and forms
  • how to find a lawyer
  • alternatives to court
  • effects of separation and divorce on children
  • community resources
FLIC staff can:
  • help you understand the court process
  • provide you with court forms
  • help you find free information about your particular legal issue
  • explain how to get your own lawyer
  • refer you to services and resources in your community (Website)

 

In March 2004, Nova Scotia Department of Justice, Court Services as part of a Needs Assessment Study on Self-Represented Litigants made a recommendation (Recommendation #20) that "Departmental support, including allocation of resources, [be provided] for the creation of an information centre for self-represented litigants at the Halifax site of the Supreme Court (Family Division) in the immediate future" (SRL Report at 50).

Following this recommendation, Family Law Information Centres (FLICs) were opened in 2005 on a pilot basis at the Family Courts in Sydney and Halifax. It is a joint project of the Nova Scotia Department of Justice and the Supreme Court, Family Division.

Enhance the effectiveness, efficiency of and access to courts.

Ongoing pilot

  • courthouse resources
  • family law
  • legal information centres
  • public legal education and information
  • self-represented litigants
  • Supreme Court of Nova Scotia
March 2004 SRL Report released
January 2005 FLIC opened in Sydney
April 2005 FLIC opened in Halifax

 

2005 Ontario Telejustice Project

Ontario

Project that uses various communication technologies to deliver Pro Bono Law Ontario services to the Nishnawbe Aski Nations communities.

The Telejustice Project represents a shift in the way PBLO delivers pro bono services to remote, rural communities in Ontario. An "urban-to-rural initiative", this project model, capitalizes on the concentration of legal resources available in urban centers. By using technology to bridge distances, PBLO can compliment the local pro bono services provided by small firms and sole practitioners in rural Ontario. "Lawyers throughout Ontario have told us that pro bono is an important part of the legal profession," says Lynn Burns, Executive Director of PBLO. "However, we understand that rural practitioners face unique barriers in participating in organized pro bono. PBLO's urban-to-rural projects will level the playing field of access to justice concerns without placing too much pressure on lawyers in rural areas."

Website

The Project uses a variety of communication platforms to connect the members of NAN with legal information, including a website, newspapers, newsletter and more. "There are also future plans to use information sheets, online tutorials, video-conferencing, on-line chat room and opening it up to the public." (Telejustice Project at 4).

The Project is staffed with approximately 25 volunteer lawyers who are willing to take questions related to various areas of law. In a partnership with the Windsor Law School, the Project is also assisted by volunteer law students. (Telejustice Project at 5).

The Project covers various areas of law, including:

  • Wills and powers of attorney
  • Landlord/tenant issues
  • Employment contracts
  • Consumer law
  • Senior legal issues
  • Administrative law
  • Criminal law (including youth justice)
  • Family Law (including child welfare)
  • Aboriginal and Treaty Rights

The Project is split into three phases.

 

First Phase

The first phase was completed in 2008. It involved:

  • implementation of Ask-a-Lawyer web-based interface, which "uses an interactive question-and-answer format that enables Community Legal Workers (CLW's) at NALSC to submit legal queries on behalf of NAN community members. These questions get dispatched to lawyers on the volunteer roster, who respond anonymously with their answers. The knowledge of these pro bono lawyers leverages the Community Legal Workers' ability to serve their very large and remote client base." (Website)
  • a monthly newspaper column in the Wawatay Newspaper

(Telejustice Project at 7).

While currently Ask-a-Lawyer interface is only accessible by CLWs, there are plans to open it up directly to the clients. The newspaper column in the Wawatay Newspaper initially started as an informational column, which was then changed into a legal advice column. There are plans to make the column bi-weekly. (Telejustice Project at 8, 16).

 

Second Phase

The second phase was initiated in 2008 and includes the development of:

  • Information Sheets dealing with topics specific to First Nation and translated into Aboriginal languages
  • Web-conference/web-cast Community Legal Education to be filmed by volunteers in Toronto
  • Video-conference Community Legal Education for workshops, information sessions and, possibly, private client sessions
  • On-line (chat room style) Community Legal Education
  • Legal Info articles housed on the website

(Telejustice Project at 7).

Third Phase

The third phase will take place after the completion of the second phase and will include:

  • Project Assessment
  • Redeployment based on feedback from project assessment

(Telejustice Project at 7).

A needs assessment conducted by Pro Bono Law Ontario in 2002 "found that 2.2 million Ontario residents living in rural, remote and Aboriginal communities lacked adequate access to justice and that despite the prevalence and persistence of poverty, those clients were often unable to get legal assistance to deal with their matters" (Website).

In 2005, to address this need, Pro Bono Law Ontario in partnership with Nishnawbe-Aski Legal Services Corporation developed and implemented the Telejustice Project

"The Telejustice Project enables pro bono lawyers throughout Ontario to improve access to justice for the Nishnawbe Aski Nations communities (NAN communities) in northwest Ontario... The goal of the Telejustice Project is to help lessen geographical barriers to justice by adding technology into the mix of the clinic's service delivery methods." (Website).

Ongoing project

  • Aboriginal persons
  • Information and communication technologies
  • Pro bono services
2005 Telejustice Project launched
2008 First phase of the Project completed
2008 Second phase of the Project initiated
2005 Toronto Case Management (Rule 78)

Ontario

Civil Rules Committee

Superior Court of Justice (Toronto)

Rule 78 to be "evaluated to examine whether improvements have been made in several areas, including: (a) time to disposition; (b) available dates for pre-trials and trials; (c) success of mediation; and (d) number of appearances required." (FAQ)

Rule 78 was developed to mitigate the difficulties arising from the application of the case management Rule 77 in Toronto.

Rule 78 is a case specific form of caseflow management based on the principle of "case management as necessary, not necessarily case management". Rule 78 applies to actions commenced in Toronto on or after December 31, 2004. It does not apply to commercial list actions, estate actions, mortgage actions, simplified procedure actions, construction lien actions, class actions, and actions under the Bankruptcy and Insolvency Act. The key features of Rule 78 are:

  • It provides partial or full case management only where a need for the court's intervention is demonstrated [78.02].
  • Mandatory mediation must be commenced within 90 days of the start of the action.
  • An action to which Rule 78 applies may still be assigned to case management under Rule 77 if either the parties consent [Rule 78.12(1)] or a judge or master makes an order based on a finding that a party is being uncooperative and obstructing the action [78.12(3)]. In either case, leave is required even if there is consent.
  • A judge is granted broad case management powers under rule 78.04 including extending or abridging times prescribed by the rules, amending timetables, giving directions, imposing terms and awarding costs. Sanctions for non-compliance are also outlined in the rule [78.11(3)].
  • Provisions exist to dismiss cases where: 1) over two years have passed since the action was commenced; 2) no defence has been filed; 3) the action has not been disposed of by order or judgement; 4) the action has not been set down for trial; and 5) the registrar has given 45 days notice that the action will be dismissed as abandoned [78.06(1)].
  • Pre-trial conferences will be scheduled after the action is set down for trial [78.10(1)].

Rule 78 was developed to mitigate the difficulties arising from the application of Rule 77. In November 2004, the Ontario Superior Court released a Practice Direction which halted the default application of Rule 77 due to the large number of cases in the Toronto region and the resulting strain on judicial resources. Rule 78 would instead limit the application of Rule 77 to those cases which required caseflow management. This targeted form of case management in Rule 78 is meant to lower costs for litigants, and allow for the more timely and economical completion of litigation.

Before the enactment of Rule 78, preliminary consultation occurred with various members of the judiciary, bar associations, the Ministry of the Attorney General, and other civil justice stakeholders throughout the summer and early fall of 2004. After preliminary consultations, a draft of the November 2004 Practice Direction was circulated for further comment. Written submissions were reviewed, resulting in improvements to the Practice Direction. The Rules Committee enacted rule 78 and amended Rules 24.1 and 77 to implement the Practice Direction.

Waiting times to obtain dates for both interlocutory motions and trials are unacceptably long and growing. Concern has also been expressed about rising costs occasioned by the increasing number of formal steps and appearances which must be undertaken (particularly at the early stages) and the decreasing ability of counsel and parties to determine on a case-by-case basis how and when to move their cases along.

Evaluation of Civil Case Management in the Toronto Region

In February 2008, Chief Justice of Ontario submitted an evaluation report on the Implementation of the Toronto Practice Direction and Rule 78 to the Civil Rules Committee. The report concludes that:

The Toronto Region's civil justice system is, by all accounts, working well. The delays that were experienced in the spring of 2004 no longer exist, and the system, based on its current level of resources, seems better able to handle the volume of cases that are commenced each month. While there are, no doubt, aspects of Rule 78 that will need to be assessed and perhaps adjusted in the future, the overarching findings from this review are that:

  • The unacceptable delays and missed dates on the long trial list have been eliminated.
  • Both short and long trial waiting times have reduced dramatically.
  • The settlement rate of cases within simplified procedures has increased radically and trials are now being conducted on a timeframe that is proportionate to the issue.
  • The flexibility in the timing of mandatory mediation has greatly increased its effectiveness (which directly influences the case inventory in the court and reduces costs to the parties).
  • With the three levels of mediation - mandatory, pre-trial and "designated-hitter" - the resolution rate before trial has increased significantly (which has a direct impact on the manageability of the trial list and the time to trial wait-times).
  • The reforms have resulted in a reduction of motion activity in Toronto Region.
  • Rule 78 changes have freed up master and judicial resources to be realigned to meet other needs within the system (e.g. family and criminal matters).

For these reasons, it is submitted that Rule 78 should be made permanent.

Evaluation at 32

Proposed New Rule 77

On October 1, 2008, the Civil Rules Committee issued a request for consultation on a proposed new case management Rule 77. These specific amendments "were so identified because they were not expressly considered, at least not in their current form, as part of the formal recommendations of the Civil Justice Reform Project".

One proposal is for a new case management rule (Rule 77) that carries with it certain consequential amendments to the rule respecting mandatory mediation (Rule 24.1). The intention of the new case management rule is to combine the existing three Rules that involve different forms of case management (rule 37.15, Rule 77 & Rule 78) into one Rule. The new Rule is designed to be flexible enough to permit different Regions of the Province to adapt the case management process to fit the individual needs of each Region. In that regard, the new Rule does not propose or envisage any substantive change to the manner in which case management currently operates in Ottawa, Toronto or Windsor. The new Rule also allows for different levels of case management for different cases. The mandatory mediation rule is to be altered to make it a separately operating rule such that mandatory mediation can be required in cases without also requiring those cases to be subject to case management and vice versa. There is also more flexibility as to the timeframe within which mandatory mediation must occur under the amended Rule.

Consultation Paper at 1

Pilot project (January 2005 - May 2008) extended to December 31, 2010

  • litigation management
  • Ontario Superior Court of Justice
  • reform
  • rules of court
November 2004 Practice Direction suspends automatic application of Rule 77 in Toronto
May 2005 Rule 78 Pilot Project commences
January 2008 Rule 78 Pilot Project extended to December 2010
February 2008 Evaluation submitted to the Civil Rules Committee
2006 Canadian Judicial Council Statement of Principles on Self-represented Litigants and Accused Persons

National

Canadian Judicial Council

Advisory principles for judges and the courts to promote access to justice for self-represented litigants.

The Statement is is advisory, and is not a code of conduct.

The principles expressed by the CJC include:

  • We must promote rights of access to justice for those who represent themselves. This means that all aspects of the court process must be open, simple, and accommodating. The court process should be supplemented by alternate dispute resolution procedures and self-help support.
  • We must promote equal justice. Judges and courts should do everything possible to prevent unfair disadvantage to self-represented persons.
  • Judges and court administrators have a responsibility to meet the needs of self-represented litigants for simple information and referrals.
  • Self-represented litigants are expected to prepare their own case and make themselves familiar with court practices and procedures. They must be respectful of the court process and its officials. Vexatious litigants cannot abuse the process.
In conjunction with the statement of principles, other helpful working tools were developed to help judges assist people who represent themselves in court. These tools provide:
  • information for judges about the needs of self-represented litigants;
  • case law and annotations on issues that have impacted on those representing themselves in court;
  • advice and suggested plain language words to explain legal procedures to self-represented litigants in family, civil, and criminal cases; and
  • references for local resources for self-represented litigants (Annual Report at 5).

The Canadian Judicial Council Administration of Justice Committee focused in 2006 on "ensuring that self-represented persons who appear in the court system have fair access and equal treatment in the courts." (Annual Report at 4.)

After extensive work by the Committee, a statement of principles on self-represented persons was issued in December 2006. The Committee's work began with a detailed examination of the issues facing self-represented persons in court. They concluded that self-represented persons are generally uninformed about their legal rights and about the consequences of the options they choose. They find court procedures complex, confusing, and intimidating and they generally do not have the knowledge to effectively participate in their own litigation (Annual Report at 4).

 

  • access to justice
  • courts
  • judges
  • self-represented litigants
2006 Federal Electronic Filing Service

Federal

Courts Administration Service, Federal Court

Federal Court of Canada

Online service offering a modern, cost-effective method for litigants to file and access their Federal Court documents.

The Electronic Filing Service for the Federal Court is provided by LexisNexis Canada. Electronic filing of a document, in PDF or TIFF format, constitutes filing within the meaning of Rules 2 and 72 of the Federal Courts Rules.

Paper copies of electronically filed documents are not required if the document, including attachments, is 100 pages or less, or if it is 500 pages or less and is filed at least 5 business days before the hearing date (if any is scheduled). Paper copies are required for documents, including attachments, that are more than 500 pages long or without a complete paragraph or page numbering scheme.

The filer is provided with a web link to a proxy of the Court's copy of the e-filed document and any attachments to review the Court's version on file to satisfy themselves that it conforms to the original. Only parties, counsel and litigation support staff to a proceeding may view electronic documents pertaining to that proceeding. However, the paper copies of electronic filings that have not been sealed by the Court may be reviewed by any person at any Registry office (Annex).

The Federal Court electronic filing pilot project was launched in October 2005 with thirty firms practising in intellectual property proceedings across Canada participated in the pilot project.

In August 2006, following a review process, the Electronic Filing Service became generally available, although still limited to intellectual property proceedings. In May 2007, the Electronic Filing Service was expanded to include documents in immigration and admiralty proceedings. The Electronic Filing Service was further expanded in November 2008 to include the remainder of the Federal Court's jurisdiction.

To facilitate more efficient delivery of services to the public by offering a modern, cost-effective method for litigants to file and access their Court documents.

Permanent Implementation

  • electronic filing systems
  • Federal Court of Canada
October 2005 Electronic filing pilot project launched
August 2006 Electronic Filing Service became generally available
May 2007 Electronic Filing Service expanded to immigration and admiralty proceedings
November 2008 Electronic Filing Service expanded to the remainder of Federal Court's jurisdiction

 

2006 New Brunswick Simplified Procedure (Rule 79)

New Brunswick

Court of Queen's Bench, Trial Division

Queen's Bench rule simplifying procedures for claims for amounts more than $30,000 and less than $75,000.

 

Simplified procedure is mandatory for all claims of more than $30,000 and less than $75,000 and optional for all other claims. It cannot be used in Family Division proceedings, class actions or proceedings commenced under an Act other than the Judicature Act (r. 79.01).
 
Timelines
  • Affidavit of Documents, listing all persons with knowledge, must be served 30 days after the close of pleadings (r. 79.06(1)-(2)).
  • Affidavits of all potential witnesses as well as experts reports must be provided within 90 days of close of pleadings (r. 79.06(4)).
  • Supplementary witness affidavits or expert report may be provided within 60 days of the expiration of the time period set in r. 79.06(4) above (r. 79.06(5)).
  • Notification that attendance of a particular deponent or expert is required at trial must be served within 30 days after the expiration of the time period set in r. 79.06(5) above. Otherwise, only affidavits may be used as evidence. (r. 79.06(7)).
  • Unless ordered otherwise, no discovery is permitted (r. 79.07).
  • Within 5 months after the close of pleadings, the parties, in a meeting or by telephone, shall consider whether all documents have been disclosed, whether settlement is possible and whether the parties agree to a settlement conference (r. 79.08).

Rule 79 governing Simplified Procedure came into force in September 2006. In 2008, the New Brunswick provincial government announced that the current Small Claims Act would be eliminated and replaced by New Brunswick Rules of Court Rule 80. The New Brunswick Court of Queens Bench's would address matters that dealt with interests up to $30,000 and Rule 79 would now apply only to matters worth between $30,000 and $75,000.

To give fast and inexpensive access to the courts by simplifying procedures for claims for amounts more than $30,000 but less than $75,000.

Permanent implementation

  • Court of Queen's Bench of New Brunswick
  • expedited litigation
September 2006
Rule 79 came into force, applies to claims up to $50,000
2008
Rule 80 comes into force, addressing claims up to $30,000 Rule 79 now applies only to claims between $30,000 and $75,000

 

2006 Newfoundland and Labrador Electronic Filing

Newfoundland and Labrador

  • Law Courts
  • Office of the Chief Information Officer
  • Small Claims in the Provincial Court
  • Probate and Administration in the Supreme Court

 
The most basic definition of e-Filing is the electronic submission of documents. Implementing e-Filing at this basic level of functionality would only partially achieve the objectives and benefits intended by the initiative. Therefore the Project Sponsors and Business Issues Committees have agreed that the following functionality should be included within the scope of the e-Filing initiative:

  • Electronic Submission of Selected Court Documents (Most Small Claims and Probate and Administration case documents)
  • Electronic Payment of Application/Court Fees
  • Integration with Case Management Systems
  • Electronic Document Management
  • Electronic Access to Status of e-Filed documents
  • Automated Electronic (email) Notification of Process Status
  • E-Registry of Court Documents (Probate and Administration only)

Specifically excluded from the scope of the initial e-Filing initiative are the following:

  • Paperless Flow of e-Filed Documents through Court Processes
  • Electronic Service of Court Documents
  • Electronic Payment of Enforcement Payments (Small Claims)(2008 Annual Report at 29).

Electronic filing system in the Law Courts of Newfoundland and Labrador.

 
Initial research, precedents in other jurisdictions, and consultations with the law courts have helped to narrow the scope of the project to include one area from each of the province's two law courts:

  • Small Claims in the Provincial Court
  • Probate and Administration in the Supreme Court

These two areas have been selected as lower risk areas of the court, that would provide positive impact to the public, and that have finite, structured, and well-defined processes. Parties involved in these matters can be selfrepresented, and so a helpful, informative electronic filing initiative should serve to ease and streamline the process for the public, increasing the accessibility of services offered by the law courts. An equally important goal is to ensure that a positive impact is felt by the administration of the two courts. An electronic filing system should reduce operational costs and staff workloads in the courts...

The first stage undertaken in the project was the Requirements Analysis stage. The scope of work for this stage involved the gathering of business requirements for e-Filing for Small Claims cases in the Provincial Court and Probate and Administration cases of the Supreme Court. This was accomplished through a series of interviews and/or workshops with court staff, administration, and judiciary to fully document current business processes and workflows and to develop the business and functional requirements of a mutually agreeable solution for e-Filing. These requirements also encompass changes to existing internal case management systems. Requirements also address functionality for document and records management of e-Filed documents in accordance with Information Management practices and guidelines (2008 Annual Report at 29).

The project to implement an electronic filing system in the Law Courts of Newfoundland and Labrador was initiated in April 2006 as a joint initiative of the Law Courts and the Office of the Chief Information Officer. The program was implemented at the Small Claims in the Provincial Court and the Probate and Administration in the Supreme Court.

 
The Province of Newfoundland and Labrador is committed to implementing an electronic filing system in the law courts. This pilot project will introduce electronic document management, large scale integration between various court case management systems, and web-based public interaction. Under this joint project the Law Courts and the Office of the Chief Information Officer will work together to build a shared, secure infrastructure upon which to build further initiatives for e-Filing and electronic disclosure. It is important that it is generally known amongst stakeholders, sponsors, and onlookers alike that this project is considered to be a ground-breaker for continued, more broad e-Filing initiatives in each court (2008 Annual Report at 29).

Permanent Implementation

  • electronic filing systems
  • Provincial Court of Newfoundland and Labrador
  • Supreme Court of Newfoundland and Labrador (Trial Division)
April 2006 Project initiated
Sept/06-May/07 Requirements Analysis stage
May-Dec 2007 Design stage
May 2010 Implementation of the e-filing Initiative

 

2006 Saskatchewan Small Claims Court - Case Management Conference

Saskatchewan

Saskatchewan Minister of Justice Advisory Committee

Small Claims Court

Overview of Saskatchewan Small Claims Court pre-trial case management process.

Saskatchewan's Small Claims Court uses a two-step process. "The first step is a case management conference (which the judge can waive) to settle the litigation or narrow the issues and resolve procedural matters. It includes familiarizing self-represented litigants with the process that will be followed at trial. The second step is trial, to which the first step has paved an efficient way." (Into the Future at 31-32)

Information packages for all stages of the process have been prepared for public use, as well as a flowchart of the overall process. This material has been made available at all court offices, placed on the Courts' website, and widely distributed to local agencies. Training and education initiatives included the preparation of a Bench Book for Judges presiding over small claims matters, a one day session for judges on case management conferences, and training sessions for court staff from each court office.
 

The Small Claims staff will prepare the documents and give you information on how to proceed. You do not need a lawyer to represent you, although you may have one if you wish. A pre-trial case management process has been introduced for small claims matters. A case management judge will assist the persons involved to settle the matter without going to trial. During the case management, the judge will be authorized to:

  • settle any issues being disputed;
  • decide any issues that do not require evidence;
  • make any appropriate order agreed to by the parties;
  • set a trial date if a trial is necessary;
  • discuss any evidence that will be required and the procedure that will be followed if a trial is necessary;
  • order the defendant to prepare a statement of defence;
  • order a party to produce any information at the case management conference or anything as evidence at trial;
  • order disclosure; and
  • make any order for the just, timely and inexpensive resolution of the action.

If settlement attempts have not resolved the dispute, a trial will be held. The judge may give any necessary directions to the persons involved to ensure the trial proceeds quickly and efficiently.
 

Website

 

A 2005 report by the Minister of Justice's Advisory Committee reviewed the small claims process. The Committee was composed of members from the Canadian Bar Association and the Law Society of Saskatchewan members. Focus groups were held with court staff, lawyers, and the public. Consultations were also held with the judiciary. The amendments to the Small Claims Act recommended in the report came into effect in 2006.

Prior to the amendments, case management conferences were already being utilized in the larger courts. They were highly successful, resulting in 50% of cases being settled out of court.

The Advisory Committee considered the alternative. The overwhelming response from those consulted was that the litigants wanted to hear the opinion of a Judge about the merits of the case, rather than of a non-judicial actor. Matters would be less likely to settle if Judges did not conduct the case management conferences.

The case management conference has two purposes:

  • settle the litigation, or
  • if no settlement can be reached, narrow the issues for trial and resolve procedural matters, to ensure a more efficient proceeding. This includes familiarizing self-represented litigants with the process which will be followed at trial.

Permanent implementation

  • case conferences
  • Saskatchewan Small Claims Court
2005 Minister of Justice Advisory Committee Report
January 2006 Amendments came into effect

 

2007 Ontario Summary Judgment (Rule 20)

Ontario

Ministry of the Attorney General

Ontario Superior Court of Justice

Rule allowing for summary judgment where there is no genuine issue for trial, and the proposed revisions that would allow for an issue to be settled by way of mini-trial.

Rule 20 of the Rules of Civil Procedure governs motions for summary judgment. It provides a mechanism in cases where there is "no genuine issue for trial" for all or part of a claim to be disposed of in a summary manner without a full trial. The primary inquiry on a motion for summary judgment is whether there is a dispute over a material fact that requires resolution by trial. The onus rests on the party seeking summary judgment to establish that there is no genuine issue for trial. Specific cost consequences automatically apply where a party seeking summary judgment does not succeed or where a party acted in bad faith or for the purpose of delay.

The revisions to Rule 20 are potentially the most significant of all the new amendments. The court's powers on the motion are expanded to permit a judge (though not a master) to weigh evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence. A new mini-trial power permits a judge to order the hearing of oral evidence on a motion for summary judgment where the interests of justice require a brief trial to dispose of the summary judgment motion. The substantially revised rule on "where trial is necessary" gives the court much greater powers and effectively permits such cases to enter a form of case management. The presumption of substantial indemnity costs against an unsuccessful moving party in a summary judgment motion in rule 20.06 has been eliminated and replaced with a rule conferring permissive authority on the court to impose substantial indemnity costs.

  • mini-trial
  • Ontario Superior Court of Justice
  • proposed reforms
  • rules of court
  • summary judgments
January 1, 1985 Rule 20 came into force
November 2007 Civil Justice Reform Project summary of findings and recommendations released
December 2008 Changes to Rules of Civil Procedure announced
January 1, 2010 Rule changes come into effect
2007 Prince Edward Island Study on Self Represented Litigants

Prince Edward Island

Community Legal Information Association of Prince Edward Island

Supreme Court of Prince Edward Island

Project designed to find out what types of services might realistically be developed and supported to assist self-represented litigants in the Supreme Court.

 
In late 2006, the executive members of the Law Foundation approached the Community Legal Information Association (CLIA) to discuss the continuing problem of self-represented litigants in Prince Edward Island's Supreme Court. In the discussion of various approaches that could be tried, the viability of a "Self-Help Centre" was raised. It was agreed that work needed to be done to find out what solutions key personnel in the legal and courts systems thought would be feasible and appropriate to deal with self-represented litigants (SRLs) --and what solutions might be supported (Study of SRL at 16).
 
In November 2007, work on the project was commenced and the final report was released in June 2008. A follow-up Supreme Court Collaborative Law Pilot Project has been initiated. It is funded by the Law Foundation of Prince Edward Island

The project was designed to find out what types of services might realistically be developed and supported to assist self-represented litigants (SRLs) in the Supreme Court of Prince Edward Island (Study of SRL at 4).

 
Recommendations:

1. That the Supreme Court of Prince Edward Island develop a means of identifying cases involving self-represented litigants so that statistics may be maintained and obtained when required.
2. That CLIA take on the role of developing written materials related to the Supreme Court process and procedures.
3. That CLIA, using recently purchased software, review Court Forms with the object of creating plain language, interactive, PDF documents.
4. That CLIA work in collaboration with the court staff to develop, promote and distribute legal information materials about the court process.
5. That the Supreme Court explore the feasibility of making alternative dispute resolution an integral part of the court process for SRLs.
6. That the Office of the Attorney General expands the current mediation service provided by the Family Law Centre to assist SRLs with the early settlement of child support, child custody and access, and family asset issues.
7. (Notwithstanding the recent announcement of additional funding for legal aid) That the Office of the Attorney General ensures that the availability of legal aid services be increased by raising financial eligibility and expanding civil legal aid to cover a wider variety of family cases and other types of civil disputes.
8. That the Office of the Attorney General establish a Child Custody and Access Office, similar in mandate to the current Child Support Guidelines Office, and providing a similar level of support for people with custody and access issues.
9. That a Law Courts Information Centre be established (Study of SRL at 6).

Completed with follow-up project initiated

  • proposed reforms
  • self-represented litigants
  • Supreme Court of Prince Edward Island
November 2007 Commencement of the project
June 2008 Study of SRL presented
2007 Summary of Ontario Expert Evidence Rules - Cost of Justice

Ontario

Superior Court of Justice

Overview of the rules in the Ontario Superior Court of Justice which attempt to reduce the cost and delay associated with expert evidence.

This summary documents Ontario's rules which attempt to reduce the cost and delay associated with expert evidence.

Ontario's expert evidence rules are governed by the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The rules are created by the Civil Rules Committee under the authority of theCourts of Justice Act, R.S.O. 1990, c. C.43, ss. 65(1) & 67(1). Evidence Act, R.S.O. 1990, c. E.23 also regulates the admission of expert evidence. 

Evidence Act

Section 12 limits the number of expert witnesses that can testify to three without leave of the court.

Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding.

R.S.O. 1990, c. E.23, s. 12.

Unlike similar provisions in other jurisdictions, this limit has been interpreted to apply to the entire case as opposed to each separate issue. Each party is limited to three experts in total (unless leave of the court is granted for additional experts). (See Bank of America Canada v. Mutual Trust (1998), 39 O.R. (3d) 134 at 137-138.)
 

NOTE: Some of the below rules are subject to amendments that will come into force on January 1, 2010

Rule 53.03: Expert Witnesses

  • The current version of Rule 53.03 came into effect in 1997.
  • R. 53.03(1) - All the relevant contact information of the expert, the substance of their testimony, and the expert report must be submitted 90 days before trial to all parties.
  • R. 53.03(2) - If a party wishes to rebut the expert testimony, they must submit the expert's contact information, the substance of their testimony, and their report to all other parties at least 60 days before trial.
  • R. 53.03(3) - An expert cannot testify to any issue unaddressed in their report unless granted leave by the trial judge.

Rules 30 & 31

  • Rule 30.03(1) - Parties must disclose all documents within 10 days after the close of proceedings (1990).
  • Rule 30.07 - There is an ongoing obligation to disclose any additional documents that were not disclosed or correct any errors in previously filed documents.

Rule 30 Amendments CIF January 1, 2010 *The requirement to disclose any material "relating to any matter in issue" has been changed to "relevant to any matter in issue". The "relevance" standard is narrower, and is meant to reduce the amount of documents being disclosed. 
 

  • Rule 31.10(1) prohibits the discovery of experts engaged by a party in preparation for contemplated or pending litigation.
  • Exception to above rule: Rule 36.01(3) - an expert may be examined for the purpose of having the testimony available as evidence at trial, but only with leave of the court or agreement of the parties, and only after the moving party has served the expert's report on all other parties. This rule is to allow the expert's evidence to be admitted to trial when there is significant cost or inconvenience in having the expert testify in person at trial.
  • Rule 36.01(4) Before moving for leave to examine an expert witness, the moving party shall serve on every other party the report of the expert witness referred to in subrule 53.03 (1) (calling expert witness at trial) unless the court orders otherwise. (CIF July 2007)
  • Rule 36.01(5) Where an order is made under subrule (2) for the examination of a witness in respect of a matter that is or will be the subject of a pending or intended proceeding, the court may, if it considers it appropriate to do so, order the moving party to pay to any other party, in advance of the examination, any or all of the costs reasonably expected to arise for the other party from the examination and any related cross-examination or re-examination. (CIF July 2007)

Rule 76 - Simplified Procedure

  • Introduced March 1996
  • Applies to claims of $50,000 or less. (Excludes class actions and actions under the Construction Lien Act.)
  • Rule 76.04 - prohibits examinations for discovery (oral and written), cross-examination on affidavits and examinations of witnesses on a pending motion.
  • Rule 76.03(1) - Requires all documents to be served within 10 days after the close of pleadings
  • Rule 76.03(2) - Requires a form to be filed containing a list of names and addresses of all potential witnesses within 10 days after the close of pleadings.
  • Rule 76.03(3) - a witness cannot be called if their name has not already been disclosed in the affidavits.

The Civil Justice Reform Project's 2007 report made several recommendations regarding expert evidence, including (82-84):

  • Joint experts should not be mandatory, but the option should be considered by parties to reduce costs.
  • Amend the Rules of Civil Procedure to require judges at pre-trials, settlement conferences and trial management conferences to consider and make orders regarding the number, if any, of experts that may be called, considering how many are reasonably required for for the fair and just resolution of the proceeding and whether the proposed number of experts is proportional to the amount at stake.
  • Explicitly clarify that the duty of an expert is to assist the court on matters within his or her expertise, overriding obligation to the client.
  • Permit judges to order opposing experts to meet to identify, clarify, and resolve disagreements.
  • cost of justice
  • delay
  • expert evidence
  • Ontario Superior Court of Justice
Date Event
2007 Yukon Family Law Case Conferences (Practice Direction 40)

Yukon

Supreme Court of Yukon

Practice directive mandating judicial case conferences providing information to family law litigants on available alternative dispute resolution procedures and allowing parties to discuss the appropriate procedure for their case.

This practice direction applies to all family law proceedings including a divorce petition or any proceeding where a claim for custody, access, child support or property division is made. It requires a family law case conference to be held with a judge within 60 days of the date of service of the proceeding, except in those cases that are exempt. Failure to hold a family case conference within 60 days may result in an application being struck or adjourned by the presiding judge (Practice Direction at 1).

An exemption from the requirement that a family law case conference be held can be granted by a judge (either upon an application, or without it):

  • where each party is represented by a lawyer and the lawyers agree that a conference is not required;
  • where there is a lawyer representing the claimant/applicant and the other party does not file an appearance
  • where there has been a history of violence or abuse and a party requests that there be no conference, or that each party have a separate conference;
  • where there is urgency or convenience.

The purpose of the family law case conference is to:

  • consider alternative procedures of private mediation, collaborative practice, judicial mediation, settlement and arbitration
  • consider some of the well-established principles of custody, child support, spousal support and property division
  • identify and narrow the issues
  • set timelines where appropriate.

Following the case conference, the judge may make any order that could be made under Rule 35 for pre-trial conferences. The judge may also:

  • appoint a single expert to report on financial and property issues;
  • order substituted service, interim interim or interim custody and child support, financial disclosure, preservation of property and other orders that may be appropriate based upon affidavit evidence, where matters are unopposed or uncontested;
  • recommend that a custody and access report be prepared or that a Child Advocate be appointed.

Practice Direction No. 40, governing family law case conferences, came into effect on May 1, 2007.

"[T]to ensure that all parties are aware of the alternative dispute resolution procedures that are available and to discuss the appropriate procedure for the particular case" (Practice Direction at 1).

Permanent Implementation

  • alternative dispute resolution
  • case conferences
  • family law
  • litigants
  • mandatory programs
  • practice directives
  • Supreme Court of Yukon
May 1, 2007 Practice Direction 40 took effect

 

2007 Yukon Family Law Information Centre

Yukon

Yukon Department of Justice

Yukon Department of Justice's courthouse centre offering legal information to self-represented litigants with family law issues.

The FLIC is accessible to all self-represented litigants in family law matters, and provides information about "filing for divorce and child support guidelines as well as referral information about other family law matters including adoption, adult guardianship, family violence, Maintenance Enforcement Program (MEP), and family law court procedures." (Website) It does not provide legal advice or representation.

Resources include the website, a resource centre in the Whitehorse Law Courts Building, and a Yukon-wide toll free helpline.

Services offered:

  • information on family law
  • various publications on family law matters, including self-help guides
  • calculation of child support, spousal support and the standard of living test
  • some help with completing court forms
  • computers for public use to research family law matters and to access and prepare court forms
  • notarization of court forms
  • referrals to other organizations and agencies
  • lending library of books and videos on family law issues

The FLIC was opened on November 30, 2007 by the Yukon Department of Justice, after conducting a feasibility study in 2004 and 2005.

To facilitate Yukoners' ability to access justice by providing information about family law procedures and allow matters to be resolved faster.

Permanent implementation

  • courthouse resources
  • family law
  • legal information centres
  • public legal education and information
  • self-represented litigants
  • Yukon Department of Justice

 

November 2007 FLIC opened

 

2007 Yukon Judicial Settlement Conference (Rule 37)

Yukon

Supreme Court of Yukon

Judicial settlement conference process in Supreme Court.

 
A judge may order attendance at a settlement conference upon request of a party or on his or her own motion.
 

Priority will generally be given to family law matters, as they are usually more urgent. It is anticipated that in personal injury matters, a private mediation will be attempted before a judge will be called upon, except for those cases with a contested legal issue.

Counsel may jointly request a particular judge whose background and experience will be conducive to reaching a settlement. The senior judge will assign the settlement conference judge.

In advance of the settlement conference, the judge [may] have a phone conference with counsel to discuss the case. This will include the issues to be dealt with and their order, whether it will be a mediation, one judge's opinion or arbitration, and the timeline for filing settlement briefs. Counsel will be asked to disclose the settlement discussions to date including offers. The discussion should determine who will start first and the level of participation of counsel and parties.

The settlement conference will be conducted in a respectful way and the conduct of counsel and parties must be respectful at all times.

The settlement conference will be without prejudice, which means that nothing that is said or done can be raised at trial. All documents produced will be returned to counsel or the parties.

The settlement conference will be recorded by the judge. The recording is for the use of the judge only and will be stored in a sealed envelope in a separate file.

The settlement conference judge will not be the trial judge, unless all parties request and consent to that judge hearing the trial.

Generally, the attendance of counsel and the instructing party is required. In personal injury cases, the adjuster with settlement authority must attend. Videoconferencing may be arranged (Practice Direction at 1).

Practice Direction No. 41, Judicial Settlement Conferences, was issued on May 23, 2007 and Rule 37, Judicial Settlement Conference, came into force on September 15, 2008 as part of the reform of the Rules of Court for the Supreme Court of Yukon.

To assist parties to resolve their cases at an early stage, to alleviate expense and to expedite the final resolution of the dispute.

Permanent Implementation

  • rules of court
  • settlement conferences
  • Supreme Court of Yukon
May 23, 2007 Practice Direction No. 41 issued
Sept. 18, 2008 Rule 37 came into force
2008 Enduring Powers of Attorney

Manitoba

A power of attorney is an instrument under which a person (the donor) confers upon 
another person the power to manage the donor's property and financial affairs. An enduring 
power of attorney (EPA) continues in effect during, or comes into effect on, the subsequent 
mental incompetence of the donor. The WCLRA report makes several recommendations for 
legislative reform in the four western provinces to increase consistency in respect of EPAs and 
to facilitate the recognition of EPAs among the provinces.

Ongoing

  • Power of Attorney 
Date Event
2008 Federal Court Rules - Expert Witnesses

Federal 

  • Federal Court of Canada
  • Federal Court of Appeal

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.

After studying provincial and international approaches regarding the concerns raised by the use of expert witnesses, the Rules Committee has developed a number of amendments to give judges the tools they require to ensure that expert evidence is adduced in the most efficient, least costly and fairest manner.

The proposed amendments include rules governing the presentation of concurrent expert evidence ("hot-tubbing") and expert conferences, the appointment of joint expert witnesses, and processes to streamline the qualification of experts, and provide for a code of conduct clarifying the duties and responsibilities of the expert witness in relation to the Courts.

The following provides an overview of the areas in which amendments are proposed.
 

(1) Recognizing the duty of expert witnesses

To ensure that expert witnesses understand their independent advisory role to the Court, it is proposed to include a Code of Conduct as a Schedule to the Federal Courts Rules.

Proposed new rule 52.2, applicable to both applications and actions, requires counsel to provide an expert witness with a copy of the Code of Conduct and to file a certificate signed by the expert acknowledging that the expert agrees to be bound by the Code of Conduct.
 

(2) Streamlining the process of qualifying expert witnesses

To assist in streamlining the qualification process and to identify situations where there are disputes as to whether a witness is qualified to testify as an expert, it is proposed that rule 52.2 require that the expert witness's proposed area of expertise be identified in the report, and that a copy of the expert's curriculum vitae accompany the report.

Requiring parties to challenge the qualifications of experts at an earlier point in the proceeding will further streamline the qualification process. This goal is to be achieved by requiring parties, other than the requisitioning party, to include any objections they may have to the requisitioning party's proposed experts in their responding pre-trial conference memoranda. The requisitioning party will be required to make any objections it may have to the responding party's proposed experts at the pre-trial conference. This is reflected in the amendments to paragraph 263(c).
 

(3) Requiring expert witnesses to confer in advance of the trial

The proposed amendments give the Court the discretion to require that experts confer amongst themselves. Discussions in an expert conference and documents prepared for such a conference are confidential and are not to be disclosed to the Court. Counsel will be present as of right, except where both parties consent to have the experts meet in their absence.
 

(4) Single joint experts

The proposed addition to rule 52.1 would allow parties to nominate a single joint expert. Such a nomination could only be made with the consent of all parties.
 

(5) Application of the rules governing expert witnesses to actions and applications

Expert witnesses regularly provide evidence to the Federal Court in both actions and applications. A number of the rules governing expert witnesses are currently found in Part 4, which is limited to actions. The proposed Rules move some of the provisions governing expert evidence to Part 3, "Rules applicable to all proceedings."
 

(6) Status of treating physicians

The Federal Courts Rules Committee is proposing to amend the Rules to exclude treating medical professionals from the application of the rules governing expert evidence.
 

(7) The need for cross-examination

On occasion, parties agree that there is little to be gained from requiring an expert to testify. The proposed amendments to rule 280 would ensure that the Court has an overriding discretion to order an expert witness to testify before the Court where the judge deems it necessary. This discretion would be exercisable even where both parties have consented to the evidence being read into the record or otherwise introduced.
 

(8) Concurrent expert evidence "hot-tubbing"

Proposed rules 282.1 and 282.2 would allow the Court to require that some or all of the experts testify as a panel. Experts will only be allowed to pose questions to each other with leave of the Court to ensure the orderly presentation of evidence. The rules governing cross-examination and re-examination will continue to apply to experts testifying concurrently.
 

(9) Limiting the number of experts

Section 7 of the Canada Evidence Act limits the number of expert witnesses that may be called by a party in a proceeding to five absent leave of the Court. Proposed rule 52.4 recognizes this limit and enumerates some of the factors that are relevant to the Court's exercise of its discretion to allow a party to call more than five expert witnesses.
 

(10) Cost consequences

The proposed amendments also include an addition to subsection 400(3) which will provide cost consequences for the unnecessary tendering of expert evidence at trial.

 

On March 7, 2008, a committee established by the Federal Court, presented a report on expert witnesses to the Federal Courts Rules Committee which requested a further study of the issues raised. The Discussion Paper was circulated in May 2008 seeking the input of the profession and parties on ten specific issues

The subcommittee met on October 31, 2008 and November 28, 2008 to discuss the comments received and to re-evaluate the proposed amendments. The Federal Courts Rules Committee approved the amendments in principle and drafting instructions were prepared and sent to the legislative drafting section of the Department of Justice in January 2009. While the drafting instructions were not available to the public, the subcommittee did provide an update on the progress of the draft rules regarding expert witnesses in March 2009. 

The proposed amendments were pre-published in Canada Gazette Part I on October 17, 2009. Any comments received on the content of those amendments will be considered prior to finalization of the rules.

A number of jurisdictions, including the Federal Court, have identified potential concerns with respect to the current approach to expert testimony before the Courts, in particular with respect to the independence of experts. The misapprehension of the role of expert witnesses in the trial process can result in experts advocating on behalf of a party. Such an approach diminishes the reliability and usefulness of the expert's evidence to the Court.

Another issue of concern that was considered is the impact of expert evidence on the length of trials and the corresponding increase in the cost of litigation to the parties. This increase in cost raises concerns about the accessibility of the court system to litigants who have limited financial resources.

The proposed Rules streamline the qualification of experts and provide a code of conduct clarifying the duties and responsibilities of the expert witness in relation to the Courts. The proposed amendments also clarify the status of treating medical professionals and make the rules governing expert witnesses applicable to applications where appropriate. Finally, the proposed amendments provide greater flexibility to the parties, and to the Court, thereby enhancing access to justice and ensuring that the principle of proportionality is respected.

Proposed

May 2008 Discussion Paper circulated by the Rules Committee
March 2009 Update on the status of the proposed amendments released
Event
2008 Manitoba First Choice Dispute Resolution Pilot Project

Manitoba

Family Conciliation, Manitoba Department of Family Services and Housing

A Government of Manitoba pilot project offering mediation and information services to families experiencing separation and divorce.

First Choice has been developed to help parents understand the likely outcome of a traditional court-ordered assessment. The Family Court can refer parents and other family members, (hereinafter called "parent") who are having trouble reaching agreement on custody, access and private guardianship issues. First Choice can also provide follow-up assistance to the families it served, to address subsequent issues and concerns.

The First Choice pilot project involves two distinct phases:

 

1. Assessment Phase:

As soon as possible after the referral is made to Family Conciliation, both parents and possibly their lawyers, meet with a First Choice team. Each team has a male and female counsellor, experienced in evaluation and mediation. Both parents have the opportunity to describe their view of the family situation and state what they are hoping for from the court.

After the team has heard both parents and asked questions, there is a break while the team meets to discuss the case. The team then presents their opinion about what a court-ordered assessment would likely recommend, based on the parties' particular circumstances. Both parents have an opportunity to review the information with their lawyers. If a party's lawyer is not present at the assessment, the party can call their lawyer. This is arranged by the counselling team.
 

2. Mediation Phase:

If not all concerns are resolved after phase one, additional meetings can be held to mediate them. These meetings include both parents and may or may not include lawyers. The children may also be interviewed. All information brought up during the mediation is confidential and cannot be used in court.

The feedback presented to the parents by the First Choice team in phase one is given, in writing, to the Family Court judge. The team also provides a notification that a parenting agreement has been reached, or the team's recommendations and options for resolving the conflict.

The pilot project's goal is to have the assessment and mediation completed within three to four sessions. The first session typically takes up to three hours, but subsequent sessions may average 60-90 minutes depending on individual circumstances with the full process completed within 30 - 35 working days from the first session.

First Choice can also provide follow-up mediation assistance to help families resolve issues that subsequently arise.

First Choice was launched in Winnipeg as a pilot project in August 2008 to offer mediation and information services to families experiencing separation and divorce.

Ongoing pilot project

  • assessment
  • evaluation
  • family law
  • government
  • mediation
  • pilot projects
Date Event
2008 Manitoba First Choice Dispute Resolution Pilot Project

Manitoba

Family Conciliation, Manitoba Department of Family Services and Housing

A Government of Manitoba pilot project offering mediation and information services to families experiencing separation and divorce.

First Choice has been developed to help parents understand the likely outcome of a traditional court-ordered assessment. The Family Court can refer parents and other family members, (hereinafter called "parent") who are having trouble reaching agreement on custody, access and private guardianship issues. First Choice can also provide follow-up assistance to the families it served, to address subsequent issues and concerns.

The First Choice pilot project involves two distinct phases:

 

1. Assessment Phase:

As soon as possible after the referral is made to Family Conciliation, both parents and possibly their lawyers, meet with a First Choice team. Each team has a male and female counsellor, experienced in evaluation and mediation. Both parents have the opportunity to describe their view of the family situation and state what they are hoping for from the court.

After the team has heard both parents and asked questions, there is a break while the team meets to discuss the case. The team then presents their opinion about what a court-ordered assessment would likely recommend, based on the parties' particular circumstances. Both parents have an opportunity to review the information with their lawyers. If a party's lawyer is not present at the assessment, the party can call their lawyer. This is arranged by the counselling team.
 

2. Mediation Phase:

If not all concerns are resolved after phase one, additional meetings can be held to mediate them. These meetings include both parents and may or may not include lawyers. The children may also be interviewed. All information brought up during the mediation is confidential and cannot be used in court.

The feedback presented to the parents by the First Choice team in phase one is given, in writing, to the Family Court judge. The team also provides a notification that a parenting agreement has been reached, or the team's recommendations and options for resolving the conflict.

The pilot project's goal is to have the assessment and mediation completed within three to four sessions. The first session typically takes up to three hours, but subsequent sessions may average 60-90 minutes depending on individual circumstances with the full process completed within 30 - 35 working days from the first session.

First Choice can also provide follow-up mediation assistance to help families resolve issues that subsequently arise.

First Choice was launched in Winnipeg as a pilot project in August 2008 to offer mediation and information services to families experiencing separation and divorce.

Ongoing pilot project

  • assessment
  • evaluation
  • family law
  • government
  • mediation
  • pilot projects
Date Event
2009 BC Distance Mediation Project

British Columbia

B.C. Mediator Roster Society

BC Mediator Roster Society project to provide communication technology for family mediation with non-urban individuals.

In this Project, mediations are held using current information and communication technologies. Experienced family mediators use these technologies to bring families together for the mediation, rather than meeting in-person. There are many technologies families can choose from, including telephone, e-mail, videoconferencing and webconferencing. 

To be eligible for the Project's free mediation services, at least one of the participating family members must live in a non-urban community of British Columbia with a population less than 10,000. The issue(s) to be resolved must relate to separation or divorce in British Columbia. These include issues relating to parenting, financial support, and small or large family property matters. Everyone participating must agree to use technology for the mediation...

Up to six hours of mediation services are available to eligible families at no charge, provided the issues to be resolved are appropriate to mediate using information and communication technologies.

The Distance Mediation Project, was run by the B.C. Mediator Roster Society and funded by the Law Foundation of British Columbia, it offered free family mediation services to eligible families living in non-urban areas of British Columbia. The project ran between May 1, 2011 – May 15, 2012.

The project's goal was to find out how technology can best be used to provide high quality mediation services to families - especially families living in non-urban areas.   It also assisted family mediators by allowing them to  gain new knowledge about how they can use different technologies to help families work out their disagreements.

Completed

  • family law
  • information and communication technologies
  • mediation
  • alternative dispute resolution
May 15, 2012 Mediation services ended
May 1, 2011 Mediation services were offered
May 31, 2009 Pilot Project launched
2009 Clicklaw

British Columbia

Over twenty partner organizations with coordination by Courthouse Libraries BC and funding from the BC Law Foundation

Website guide to public legal education and information resources and legal services in BC

The Clicklaw site includes public legal information and education resources contributed directly to the site by 24 contributor organizations. Various ways of accessing these resources are provided:

  • The "Solve Problems" contains resources designed to inform people of their rights and how to resolve specific problems. Guides for common questions are included as results for some searches.
  • The "Learn and Teach" section includes education resources on the law and legal system.
  • The "Reform and Research" section includes law reform resources.

HelpMap provides a searchable map of legal services in the province. 

Clicklaw is a community-driven project sponsored by the Public Legal Education and Information Working Group and funded by the Law Foundation of BC. The PLEI Working Group is an informal body of seven organizations in BC that provide or support public legal education and information. An additional 17 organizations are formally participating in Clicklaw, linking the content on their websites together through Clicklaw. Courthouse Libraries BC is leading the development of Clicklaw.
The development of the project included extensive user testing and revision to develop an interface that could be easily accessed by a diverse public. A public-focused PLEI Taxonomy was developed to classify materials in plain language terms.(Civil Legal Needs at 36).
The PLEI Network undertook a mapping of legal services which has been incorporated into the site as a "HelpMap".

People are increasingly turning online to access information, and there is a rapidly growing body of legal information on the Internet. But the experience for a member of the public trying to find legal information or legal help online is often challenging:

  • the accuracy and reliability of information on the Internet varies widely
  • the information is spread across many websites, each with their own structure, search & so on
  • the public don't generally have a legal vocabulary to effectively search with

By offering a unified point of entry online into legal information, education and help for British Columbians, Clicklaw will represent a trustworthy gateway to quality legal information and services

 

Active

 

  • public legal education and information
  • websites
April 2009 Clicklaw website launched
December 2009 HelpMap portion of the site goes on-line
2009 Contaminated Sites in Nova Scotia

Nova Scotia 

Spills and chemical releases can occur over time undetected. They can also occur as a result of immediate events such as oil tank leaks aboveground. When this happens, soil, water and air can become contaminated.

Contamination normally refers to concentrations of chemicals in the soil, water and air that have been determined to exceed acceptable standards for the particular land use.

 

A contaminated site is land with soil or water which contains unsafe levels of hazardous substances. The presence of those substances is often the result of longstanding industrial activity. Many contaminated sites can be safely cleaned up and put back into productive use.

The Environment Act is legislation which governs contaminated sites in Nova Scotia. Possessing a contaminated site is not unlawful in itself, and the Act imposes no requirement in general to investigate or report suspected contamination. When, however, contamination has caused, is causing, or may cause an “adverse effect,” as defined under the Act, a landowner or other persons responsible will have obligationstosatisfyunderthelegislation. Thescopeofpersonspotentiallyresponsiblefortheclean-up of a contaminated site is quite broad.

The Minister’s powers under the Act are wide-ranging. Among others, he or she may order a specified activity to stop and may require the clean-up of a site. The Minister may also designate a site as contaminated. Until 2006, the designation power (which has never been used) was the only means of identifying a contaminated site under the legislation. As a result of recent changes to the Act, it now provides for contamination in fact, in accordance with whatever standards have been adopted by the Minister.

A number of the Minister’s powers have implications for liability (responsibility at law). For example, where multiple persons are responsible for the creation of contaminated sites, the Minister may determine and allocate clean-up costs among them. The Minister’s authority to assign and apportion liability is subject to generalized factors which provide limited guidance and uncertain protection against disproportionate liability.

The legislation does not include compulsory and detailed guidelines with which to manage a contaminated site or deal with liability issues. In 1996, the Department adopted the Guidelines for Management of Contaminated Sites. The Guidelines include requirements about such subjects as notification of site contamination and the steps to be taken in site clean-up. The Guidelines do not take the form oflegislation and as such, have no binding status in law. They enable contaminated sites to be managed in a voluntary fashion.

A landowner cleaning up a contaminated site will likely employ a site professional, a person who performs a variety of roles related to the identification, management, and remediation of contaminated land. Upon completion of a clean-up, a site professional, on behalf of the landowner, will typically present to the Department a certificate setting out the nature and extent of clean-up which has been completed. At the moment, the Department does not approve these certificates, and provides no indication of their effect in terms of fulfilling regulatory liabilities.

Fears of uncertain liability discourage landowners and developers from cleaning up contaminated sites. The lack of contaminated site clean-up means a risk of significant adverse consequences to human health and quality of life, as well as to environmental well-being. This also has economic costs, as potentially useful land lies underused or not used at all.

In January 2008, the Attorney General of Nova Scotia requested that the Law Reform Commission examine a number of issues pertaining to contaminated sites in Nova Scotia. TheDepartment’s request was made in the furtherance of s.4(2)(m) of the Environmental Goals and Sustainable Prosperity Act, S.N.S. 2007, c.7, which commits the Province to develop regulatory tools to stimulate redevelopment of contaminated land and contribute to economic development while protecting the environment, by the year 2010. A Discussion Paper was published in April of 2009, and written submissions received from a number of parties. This Final Report sets out the Commission’s recommendations for the improvement of the current legislative regime, to promote the clean-up of contaminated sites while at the same time protecting human health and the environment. 

 

 

Final Report

Date Event
2009 Contracts for the Sale and Purchase of Land: Purchasers' Remedies

Canada
 

Alberta Law Reform Institute

This report addresses the current state of the law (as of the time of publication) concerning situations where a purchaser of land has fulfilled his or her obligations under the purchase contract, but the vendor has not transferred the land. In Semelhago v. Paramadevan, [1996] 2 SCR 415, the Supreme Court of Canada determined that in most such cases, the purchaser will be entitled to damages, but not specific performance (i.e., receipt of the land in question), unless the parcel of land can be proven to be "unique." The report contends that provision of damages to the purchaser in this type of case is not always in the interests of justice, and suggests that statutory changes be made with the effect of moving the presumptive remedy in these cases back to specific performance.

The principal opinion advanced in this report is that the availability of specific performance should not be determined by a rule adopted for purely historical reasons without examination of the basis for the rule. The question should not be whether damages is an adequate remedy for a vendor’s breach of a contract for the sale and purchase of land, but, rather, which remedy is better: damages or specific performance? The report concludes that specific performance is fairer as between the vendor and the purchaser; that it is more efficient in the sense that it avoids litigation for the assessment of damages; and that it is more effective than damages because it puts the purchaser in the precise position they would have been in if the contract had been performed, and because damages is not an effective remedy at all if the vendor is judgment-proof due to insolvency. This conclusion leads to the further conclusion that specific performance should generally be available to a purchaser under a contract for the sale and purchase of land.

A second opinion advanced in the report is that a contract for sale and purchase of land should generally confer on the purchaser an interest in the land, with the consequent right to file a caveat against the certificate of title to the land where a certificate of title exists. It should do so because such a contract grants the purchaser a right to obtain ownership of the land on payment of the purchase price and the purchaser has paid part of the price and contracted to pay the balance. If the purchaser cannot file a caveat to protect their interest under the contract, the vendor may convey the land to another party, or the vendor’s creditors may attach the property, thus defeating the purchaser’s claim. 

 

The report makes three recommendations:

(1) That, for the purpose of determining whether a purchaser under a contract for the sale of land is entitled to specific performance of the contract, theland that is the subject of the contract be conclusively deemed to be unique at all material times, and legislation should be enacted to that effect.
(2)  That a contract for the sale and purchase of land should confer on the purchaser an interest in the land and, where the land is covered by a certificate of title, a right to file a caveat protecting that interest. The legislation we have recommended will have that effect, as it will restore the pre-Semelhago law under which the purchaser had an interest in land and a right to file a caveat.
(3)  That our recommendations apply to the following, all of which we include in the term “contract for the sale and purchase of land”: (a) a contract providing for payment of the purchase price over time; (b) a contract entered into for closing at a future time; (c) an option for the purchase of land where the option has been exercised; (d) an offer in writing for the purchase of land which has been accepted in writing by the owner of the land; and (e) an agreement to grant a lease 

 

Completed

  • Real estate law
  • Contract
  • Property
  • Ownership
  • Land

 

2009 Evaluation of the Nova Scotia Small Claims Court

Nova Scotia

Small Claims Court

This is a final report on a research program focusing on the Nova Scotia Small Claims Court. The purpose of the present study was to examine the effectiveness of the Nova Scotia Small Claims Court at meeting its basic objective of providing quick, informal, and affordable access to justice. This research was conducted by a Saint Mary’s University research team working in collaboration with the Law Reform Commission of Nova Scotia. The intended audience for this report is the Nova Scotia Law Reform Commission, though we understand that others may be interested in the report and we have attempted to write for as broad an audience as possible.

Phase I of the research consisted of interviews with key stakeholders from within the Nova Scotia Small Claims Court. Between August and November, 2006, we interviewed a total of 17 individuals who work in some capacity in the Nova Scotia Small Claims Court: six experienced Nova Scotia Small Claims Court adjudicators, five clerks, and six lawyers who have represented clients in Nova Scotia Small Claims Court cases.

Phase II of the research was a survey of litigants in the Nova Scotia Small Claims Court. Approximately 2,500 surveys were mailed to individuals who had been involved in a small claims matter between 2005 and 2007. Responses were received from 254 litigants, yielding a response rate of about 10%. The report includes both quantitative and qualitative data from the survey respondents.

The data illustrate the strengths and weaknesses of the Nova Scotia Small Claims Court. The court is performing remarkably well at achieving its legislative objectives. Enforcement of judgments emerges as a clear area of concern, both among interviewees and litigants. We make several recommendations for possible reform. We recommend careful planning and reform of data collection in the Nova Scotia Small Claims Court, with an eye toward future research.

 

The system is working quite well at meeting its legislative objective of providing rapid, informal, inexpensive access to justice. The data suggest a number of areas for future consideration and possible reform. There does seem to be one clear weakness in the current operation of the Nova Scotia Small Claims Court: enforcement of judgments. We recommend that lawmakers consider 1) careful evaluation and policy change toward improving enforcement of Nova Scotia Small Claims judgments, 2) careful evaluation and revision of the Nova Scotia Small Claims Court forms, 3) recording some of the more complex hearings, and 4) developing and implementing a comprehensive data collection plan regarding the Nova Scotia Small Claims Court.

Future research should evaluate the impact of recent legislative changes, particularly the shift to a $25,000 ceiling on allowable claims and the increase in allowable claims for general damages from $100 to $2,500. The Nova Scotia Supreme Court is in a state of transition and these changes must be carefully monitored. There is a distinct risk that these changes will strain the system to the point that rapid access to justice is no longer feasible. The Nova Scotia Small Claims Court now has one of the highest caps on small claims in all of North America. We urge caution, and careful empirical evaluation of the system as the full impact of these changes unfolds. 

Final Report

  • Small Claims Court
Date Event
2009 Federal Court Rules - Summary Judgement and Summary Trial (Rules 213 to 219)

Federal 

Rules Committee of the Federal Court of Appeal and the Federal Court

  • Federal Court of Canada
  • Federal Court of Appeal

Federal Court rules governing summary judgments and summary trial procedures.

Final Rules Description and Rationale

The Rules Committee of the Federal Court of Appeal and the Federal Court (the "Committee") has determined that the administration of justice would be better served by the incorporation of a summary trial procedure, similar to that found in rule 18A of the British Columbia Rules of Court, into the Federal Courts Rules. Such an amendment allows the Court to dispose summarily of actions in a greater range of circumstances than is permitted under current rule 216(3). These amendments also serve to give the parties greater control over the pace of their litigation.

The rules governing summary judgment are therefore amended to establish a summary trial proceeding in addition to motions for summary judgment. These amendments enable the Court to determine an issue or action by way of summary trial even though there is conflicting evidence or issues of credibility which, prior to these amendments, would have required a full trial.

The amendments also permit a party to bring a motion for summary trial where, in the party's opinion, there are genuine issues that could be determined without a full trial.

These amendments expand the number of instances in which an action may be disposed of summarily providing greater flexibility to the parties and to the Court and enhancing access to justice.

The amendments also clarify the evidentiary burden on a party responding to a summary judgment motion to make it consistent with recent jurisprudence.

Final Rules

Final Rules Technical Description

The following amendments were made:

  • Rule 50(1)(c) is amended to clarify that a prothonotary does not have jurisdiction to hear and determine a motion for summary trial.
  • Rule 81(1) is amended to clarify that the exception which allows affidavits on information and belief to be filed in support of motions is not applicable to motions for summary judgment or summary trial.
  • Rule 213(1) is amended to allow a party to bring a motion for summary judgment or summary trial prior to the time, date and location of the trial having been fixed. The Committee notes that the Court continues to have an overriding power to dispense with compliance with any of the Rules in special circumstances pursuant to rule 55.
  • Rule 213(2) is replaced by a provision which limits a party to bringing one motion for summary judgment or summary trial. Subsequent motions pursuant to rule 213(1) may only be brought with leave of the Court.
  • A new rule 213(3) requires the moving party to serve and file its motion record at least 20 days prior to the date set for the hearing of the motion. New rule 213(4) provides for a deadline of 10 days before the hearing date for any responding materials to be served and filed.
  • New rule 214 clarifies the evidentiary burden on the responding party to a motion for summary judgment to render it consistent with recent jurisprudence.
  • Rule 215(3) replaces former rule 216(3). Rule 215(3)(a) gives the Court the power to proceed to determine an action or issue by way of a summary trial even where it is satisfied that there is a genuine issue of fact and law for trial. The Court may make any order necessary for the conduct of the summary trial.
  • Rule 215(3)(b) empowers the Court to dismiss a motion for summary judgment in whole or in part and order that the matter proceed to trial and be specially managed thereby allowing the matter to move forward as quickly as possible.
  • Rule 216 is added to provide a summary trial mechanism. It sets out the type of evidence which may be adduced [216(1)]; delineates the scope of rebuttal evidence by the moving party [216(2)]; empowers the Court to make any order necessary for the conduct of the summary trial including an order requiring a witness to attend for cross-examination viva voce before the Court [216(3)]; permits the Court to draw an adverse inference where a party fails to cross-examine or file responding or rebuttal evidence [216(4)]; sets out the circumstances in which the Court may dismiss the motion for summary trial [216(5)]; empowers the Court to grant judgment if satisfied that there is sufficient evidence for adjudication [216(6)]; gives the Court the power to make any order necessary for the disposition of the action [216(7)]; and, if the motion for summary trial is dismissed, gives the Court the power to order that the matter proceed to trial and be specially managed [216(8)].
  • Rules 217 to 219 are amended to include judgments under new rule 216 (summary trials).
  • Rule 218(c) of the French version is amended to better reflect the wording of the English version.
  • Rule 297 is amended to preclude motions for summary trial being brought in simplified actions (as is set out in rule 292 regarding actions in which each claim is exclusively for monetary relief in an amount not exceeding $50,000 or, on motion, the Court orders that the action be conducted as a simplified action).
  • Rule 366 is amended to include motions for summary trial.
    Final Rules

Concerns Expressed in Relation to the Draft Rules and Response Thereto

Rule 81: A concern was raised about the inadmissibility of hearsay evidence in summary judgment and summary trial motions. More particularly, IPIC questioned whether this amendment would increase cost and reduce the flexibility of the Court process by limiting the type of evidence available to a party. However, the Committee noted that evidence adduced in a summary judgment motion may be filed in a subsequent summary trial motion. It would be inappropriate to conduct a summary trial on the basis of hearsay evidence; allowing hearsay on a summary trial motion would also lead to possible motions contesting the admissibility of that evidence thereby result in further delay and expense.

Rule 213(1): A concern was raised about the amendments which appear to limit the flexibility of a party to bring a motion for summary judgment or trial at certain times in a proceeding. The committee reviewed the comment and concluded that in view of the rules governing case management, as well as Rule 55 which allows the court to vary or dispense with compliance in special circumstances, no change to the proposed amendment was necessary.

Rule 215(3): A comment was made about the possibility that a motion for summary trial would be scheduled immediately after being converted from a motion for summary judgment. The Committee noted that any issue in relation to the timing of a subsequent motion for summary trial could be addressed by the parties at the outset of a summary judgment motion. As well, the Committee noted that the amendment provides the Court with a wide discretion to make orders or directions in relation to the conduct of a summary trial. Finally, the Court is bound to interpret the Rules in accordance with the principle of fairness set out in Rule 3 which would require that parties be given sufficient time to present their position.

Rule 216(1): The CBA-IP section recommended that the deadlines for filing memoranda of fact and law in summary judgment motions be modified to allow for written representations to be filed after the motion records. The Committee noted that similar timelines for summary judgment motions have been in existence since the coming into force of the Federal Courts Rules in 1998. Moreover, the majority of actions in the Federal Court are case managed which, pursuant to Rule 385, creates an inherently flexible framework for the management of such procedural issues.

Rule 216(3) [now rule 216(5)]: IPIC noted that the proposed rule permitted the Court to dismiss a motion for summary judgment on its own motion. IPIC raised a concern that such a discretion may permit the Court to dismiss a motion for summary trial without hearing submissions from the parties to the motion. The Committee noted that in light of the fairness principle set out in Rule 3 of the Federal Courts Rules a party would always be entitled to make submissions before the Court dismissed a motion of its own initiative.

Another comment made in relation to rule 216(5) [now Rule 216(3)] recommended that the permissive term "may" found in the proposed rule be replaced by the mandatory word "shall". The Committee agreed with this suggestion as it would be inappropriate to continue the hearing of a motion for summary trial where a party has established that the motion falls within the scope of rule 216(3) [now 216(5)].

Rule 216(4) [now Rule 216(3)]: It was recommended that the proposed rule should specify when orders in relation to the cross-examination of witnesses will be made to facilitate the preparation for hearings. The Committee concluded that this concern was likely the result of the wording "on or before" which may have led to the belief that the Court would ask parties to present witnesses at the hearing without notice. The wording "on or before" has been removed to address this concern. Additionally, all of the rules in the Federal Courts Rules are to be interpreted in light of the fairness principle set out in Rule 3 which would require that a party be given sufficient time to properly present a witness.

Responding to concerns that the current summary judgment Rule 216 contained in the Federal Court Rules is too restrictive in scope, the Federal Courts Rules Committee circulated the Discussion Paper on October 13, 2006 to discuss possible alternatives. A subcommittee received and considered comments from judges of the Federal Court of Appeal and the Federal Court, as well as from members of the Bar. The majority of the comments supported the proposal.

The proposed rule amendments were then drafted, modifying the current rules governing motions for summary judgment and introducing a summary trial procedure. The proposed changes were premised on Rule 18A of the BC Rules of Civil Procedure. These were further discussed within the subcommittee, as well as at a meeting of the Federal Courts Rules Committee. The draft amendments were also discussed in 2007 and 2008 at the Bench and Bar Liaison Committee meetings. The majority of the members were in agreement with the proposal.

Following a pre-publishing in January of 2009 and consultation, the Rules came into force on December 10, 2009.

[The Rules] modify the existing rules on summary judgment found in Rules 213 through 219 by among other things, adding a summary trial procedure...

Motions for summary judgment may be granted by the Court where there is no genuine issue for trial. Such motions are based solely on the evidence adduced by the parties in their motion records (e.g. affidavits or other documents). The availability of summary judgment allows for the efficient disposition of actions, in whole or in part, where a trial to hear a full range of evidence is unnecessary.

The current judicial interpretation of the summary judgment rules limits the instances in which summary judgment will be granted. The jurisprudence requires that a motion for summary judgment be dismissed where an issue of credibility arises or where there is conflicting evidence and the outcome of the motion turns on the drawing of inferences. Thus, the existing provisions for summary judgment in the Federal Court do not provide the flexibility needed to manage the Court's caseload efficiently by the expeditious disposition of cases that do not require a full trial.

These amendments also clarify the evidentiary burden that must be met by a party to a summary judgment motion in accordance with the existing jurisprudence...

Permanent Implementation 

  • Federal Court of Appeal
  • Federal Court of Canada
  • proposed reforms
  • rules of court
  • summary judgments
  • summary trials
 

October 2006 Discussion Paper circulated by the Rules Committee
January 2009 Proposed Rules published in Canada Gazette
December 2009 Rules came into force
Event
2009 Improving Administrative Justice in Manitoba: Starting with the Appointments Process

Manitoba

This report discusses the difficult issue of what role, if any, partisanship (in the sense of 
appointees’ known sympathies with the government’s political leanings) should play in the 
appointments process. This report outlines the formal mechanisms for making board 
appointments in Canadian common law jurisdictions and outlines the issues that arise with the 
less formal mechanisms. It examines how concerns with appointments have emerged in 
Canadian jurisdictions and how governments have changed their appointments processes in 
response to those concerns. This report describes publicly available information on the current 
appointments process in Manitoba, and reviews developments and reforms in appointments 
policies in Canada and other jurisdictions. The final part of this report examines more closely the 
elements of appointments policies and makes recommendations on a new appointments policy 
for Manitoba

  • Administrative Justice 
  • Administrative Law 
Date Event
2009 Improving Administrative Justice in Manitoba: Starting with the Appointments Process

Manitoba

Manitoba Law Reform Comission

 
Manitoba has about 160 administrative agencies, boards and commissions (often referred to as “ABCs”) that operate outside the line departments of government. The government relies on administrative boards to regulate and adjudicate, to give advice, to administer substantial financial and other assets and to provide goods and services. Other administrative boards are appointed to take on roles that emerge as governments assume regulatory functions. In the last decade most Canadian provinces and the federal government have reviewed their board appointments processes and most have implemented changes to ensure that the processes are more open, transparent and accountable and less partisan and more merit-based. Manitoba is one of the few provinces not to have made some change to its appointments process. The first step towards ensuring quality performance of administrative boards in Manitoba is to examine the quality of the appointments process. 

This report discusses the difficult issue of what role, if any, partisanship (in the sense of appointees’ known sympathies with the government’s political leanings) should play in the appointments process. This report outlines the formal mechanisms for making board appointments in Canadian common law jurisdictions and outlines the issues that arise with the less formal mechanisms. It examines how concerns with appointments have emerged in Canadian jurisdictions and how governments have changed their appointments processes in response to those concerns. This report describes publicly available information on the current appointments process in Manitoba, and reviews developments and reforms in appointments policies in Canada and other jurisdictions. The final part of this report examines more closely the elements of appointments policies and makes recommendations on a new appointments policy for Manitoba. 

 
The Commission observes that most Canadian appointment regimes contain weak accountability mechanisms for individual appointments and, more generally, on the workings of appointments processes. The Commission recommends that to ensure that progress on the implementation and maintenance of a new appointments policy be monitored, the Government of Manitoba should publish the names of successful candidates, along with a short biographical sketch on the websites of the central appointments secretariat and the individual administrative board. The Commission also recommends that administrative boards and the central appointment secretariat report annually on the progress of appointment reform, such as appointments process improvements and diversification of board membership. 

  • artisan
  • appointments
  • board
  • tribuna  process
  • mechanisms
  • administrative justice
  • elements
  • policy
2009 Manitoba Family Law Access Centre (FLAC)

Manitoba

Law Society of Manitoba

Law Society of Manitoba pilot project that will provide reduced-cost representation to litigants who do not qualify for legal aid to assist them with their family law cases.

The LSM will act as a brokerage house in family law matters by buying legal services at a discount from private bar lawyers and then making them available to those in the middle of the socio-economic spectrum, provided they meet certain financial criteria. The LSM will also handle client billing and will guarantee payment to participating lawyers, eliminating a major administrative headache...

Before would-be clients can avail themselves of the lawyers participating in FLAC, they will be subject to a full financial assessment, including an examination of their income, debts, assets, tax returns, family size and number of dependents. If they land in the appointed range, they'll be accepted into the program. If they fall below, they'll be referred to legal aid and if they make too much money, they'll be asked to hire a lawyer on their own.

 

Lawyers Weekly

 

The Law Society of Manitoba has approved the creation of The Family Law Access Centre (FLAC), which is expected to be up and running early in 2010. The budget for the pilot project has been set at $250,000. FLAC will service the middle class - those who do not qualify for legal aid, but cannot easily afford legal services to assist them with their family law cases, such as divorce, child custody and spousal support.

To improve the accessibility of legal services in family law cases to the middle class.

Pilot Project

  • family law
  • law societies
  • litigants
  • low-income persons
  • pilot projects
  • representation
2009 New Brunswick Family Court Pilot Project

New Brunswick

Court of Queen's Bench, Family Division

Pilot of an alternative model for Queen's Bench Family Division to increase efficiency, promote alternatives to court, and expedite high-conflict parties.

 

 

As part of the pilot, "all cases entering the judicial system would first appear before a quasi-judicial official appointed under the Judicature Act. This official, referred to in the Ottawa model as a family case management master, would then determine the appropriate services and immediate remedies required. (News Release'')

Recommendations of the Task Force for the Family Court Pilot Project include:
 

Masters

Masters (appointed individuals with at least 10 years of practical family law experience) would play a key role in the project and be responsible for the efficient flow of cases through the judicial system.
 

Stage 1

The Court system will be accessed by parties through:

  • a private lawyer,
  • Domestic Legal Aid, or
  • self-representation.
If they are self-represented, they will visit the Family Law Information Centre (FLIC) located in the courthouse. The Centre will be fully automated. The client will use a talking touch screen to access what they require. They will print the forms needed from a dispensing machine for a printing fee. The same forms will be available online.

Report at 47

Stage 2

The party will file an originating process and an application for triage together with a copy of their last year's income tax return. They will be assigned a date for the triage process and will serve the opposing party with this document. The respondent will complete their response and file and serve it. The documents will be an information page. There will be no affidavit evidence at this stage.

Report at 47

Stage 3

Both parties will attend at the triage session. If they have a lawyer, the lawyer will also attend. This session will be presented with 15-20 cases at the same time and is scheduled for one-half day. The opening presenter will provide information on:

  • The effects of separation and conflict on children. A short video similar to For the Sake of the Children will be shown. Clients will be advised that any of them who intend to file for motions or a trial involving children will be required to complete the For the Sake of the Children course prior to receiving a court date.
  • The basic principles of support and division of property.
  • The various methods of dispute resolution - mediation, collaboration, arbitration, negotiation and litigation.
    Report at 48

Stage 4

After the 30-minute presentation, clients will be asked to self-identify:

  • Resolved: Those couples who have resolved their issues will meet with a master to finalize their order and sign it with the Master.
  • Mediation: Those couples who believe they can make progress in mediation will be moved to another area and wait to see a mediator. They will each spend 15-20 minutes with the mediator to ensure that they can continue in this process and then will book their sessions with the mediator. Mediation will be paid for on a sliding scale dependent upon their annual income.
  • Case conference: Those remaining couples will have a case conference with a master or a judge who will attempt to assist them in reaching a settlement. If one is reached, they will wait until the order is prepared and they will sign it. If not reached, the master will give them further direction on a method of dispute resolution that the master feels is suitable for their case. The master will identify high-conflict cases at this stage.
    Report at 48

Stage 5

Clients who are not successful in resolution at Stage 4 will continue through the system in two streams: mediation and case conferencing.

Mediation: Will be voluntary. Clients will continue in it to completion or switch into the court stream if it fails.

Court stream: In this stream, clients will have access to justice in two distinct ways:

  • Motions: Clients have the opportunity to file a motion and be heard as needed on substantive issues, such as interim relief.
  • Case conferences: Procedural issues will be handled by case conferences upon the request of either party. The judge or master who heard their triage meeting will continue to assist them by way of case conference. Case conferences are informal meetings. They are mostly for procedural issues and have the responsibility to ensure that the file is court-ready. A judge or master may order costs against any party who does not follow the procedural rules. Substantive issues such as immediate changes to access and enforcement of access may also be resolved at this stage.
    Report at 48-49

Stage 6

Clients who are in the court stream will have a settlement conference before their trial dates are set.

At the settlement conference stage, the parties may choose one of two routes:

  • Classic settlement conference: The same as is currently in place under Rule 50, with two modifications: a. Settlement conferences will occur early in the life of a court file - within two or three months of the initial filing of the originating process; b. The applicant's settlement brief will be due 30 days prior to the settlement conference and provided to the respondent, with the respondent's brief due 10 days later (20 days before the conference).
  • Binding settlement conference with a judge of their mutual choice. The decision of this judge is final and is not open to appeal.
    Report at 49

Stage 7

For those files that continue to be unresolved, a trial will be held. The trial will not be in front of the judge used in the case conference or settlement conference.

Report at 49

Access to Family Justice Task Force, led by Justice Raymond Guerette of Campbellton, was appointed in February 2008 and mandated to make recommendations that would lead to:

  • more timely access to justice in resolving family law disputes
  • expanded use of alternatives to family courts to resolve family law issues
  • increased access to legal information and legal assistance in family law matters, especially for the poor, single parents and First Nations people.
    Report at 2

Following a release of the Task Force's Report, an implementation committee was formed to implement the recommendations contained in the Report. 

One such recommendation is the implementation of an alternative model for the Court of Queen's Bench, Family Division, based on the Ottawa Family Court pilot project, which is planned to be piloted in the Fall of 2009.

 

  • To increase the efficiencies of all Court matters that touch the lives of children, especially those in child protection.
  • To identify those families who would benefit from professionals who could assist them to settle their issues.
  • To identify high-conflict parties early and move them to trial expeditiously, while giving them access to justice through case conferencing while they wait for their court date.
    Report at 47
  • Pilot Project
Date Event
2009 New Brunswick Family Court Pilot Project

New Brunswick

Court of Queen's Bench, Family Division

Pilot of an alternative model for Queen's Bench Family Division to increase efficiency, promote alternatives to court, and expedite high-conflict parties.

As part of the pilot, "all cases entering the judicial system would first appear before a quasi-judicial official appointed under the Judicature Act. This official, referred to in the Ottawa model as a family case management master, would then determine the appropriate services and immediate remedies required. (News Release'')

Recommendations of the Task Force for the Family Court Pilot Project include:

Masters

Masters (appointed individuals with at least 10 years of practical family law experience) would play a key role in the project and be responsible for the efficient flow of cases through the judicial system.

Stage 1
The Court system will be accessed by parties through:

  • a private lawyer,
  • Domestic Legal Aid, or
  • self-representation.
If they are self-represented, they will visit the Family Law Information Centre (FLIC) located in the courthouse. The Centre will be fully automated. The client will use a talking touch screen to access what they require. They will print the forms needed from a dispensing machine for a printing fee. The same forms will be available online.

Report at 47

Stage 2

The party will file an originating process and an application for triage together with a copy of their last year's income tax return. They will be assigned a date for the triage process and will serve the opposing party with this document. The respondent will complete their response and file and serve it. The documents will be an information page. There will be no affidavit evidence at this stage.

Report at 47

Stage 3

Both parties will attend at the triage session. If they have a lawyer, the lawyer will also attend. This session will be presented with 15-20 cases at the same time and is scheduled for one-half day. The opening presenter will provide information on:

  • The effects of separation and conflict on children. A short video similar to For the Sake of the Children will be shown. Clients will be advised that any of them who intend to file for motions or a trial involving children will be required to complete the For the Sake of the Children course prior to receiving a court date.
  • The basic principles of support and division of property.
  • The various methods of dispute resolution - mediation, collaboration, arbitration, negotiation and litigation.
    Report at 48

Stage 4

After the 30-minute presentation, clients will be asked to self-identify:

  • Resolved: Those couples who have resolved their issues will meet with a master to finalize their order and sign it with the Master.
  • Mediation: Those couples who believe they can make progress in mediation will be moved to another area and wait to see a mediator. They will each spend 15-20 minutes with the mediator to ensure that they can continue in this process and then will book their sessions with the mediator. Mediation will be paid for on a sliding scale dependent upon their annual income.
  • Case conference: Those remaining couples will have a case conference with a master or a judge who will attempt to assist them in reaching a settlement. If one is reached, they will wait until the order is prepared and they will sign it. If not reached, the master will give them further direction on a method of dispute resolution that the master feels is suitable for their case. The master will identify high-conflict cases at this stage.
    Report at 48

Stage 5

Clients who are not successful in resolution at Stage 4 will continue through the system in two streams: mediation and case conferencing.

Mediation: Will be voluntary. Clients will continue in it to completion or switch into the court stream if it fails.

Court stream: In this stream, clients will have access to justice in two distinct ways:

  • Motions: Clients have the opportunity to file a motion and be heard as needed on substantive issues, such as interim relief.
  • Case conferences: Procedural issues will be handled by case conferences upon the request of either party. The judge or master who heard their triage meeting will continue to assist them by way of case conference. Case conferences are informal meetings. They are mostly for procedural issues and have the responsibility to ensure that the file is court-ready. A judge or master may order costs against any party who does not follow the procedural rules. Substantive issues such as immediate changes to access and enforcement of access may also be resolved at this stage.
    Report at 48-49

Stage 6

Clients who are in the court stream will have a settlement conference before their trial dates are set.

At the settlement conference stage, the parties may choose one of two routes:

  • Classic settlement conference: The same as is currently in place under Rule 50, with two modifications: a. Settlement conferences will occur early in the life of a court file - within two or three months of the initial filing of the originating process; b. The applicant's settlement brief will be due 30 days prior to the settlement conference and provided to the respondent, with the respondent's brief due 10 days later (20 days before the conference).
  • Binding settlement conference with a judge of their mutual choice. The decision of this judge is final and is not open to appeal.
    Report at 49

Stage 7

For those files that continue to be unresolved, a trial will be held. The trial will not be in front of the judge used in the case conference or settlement conference.

Report at 49

Access to Family Justice Task Force, led by Justice Raymond Guerette of Campbellton, was appointed in February 2008 and mandated to make recommendations that would lead to:

  • more timely access to justice in resolving family law disputes
  • expanded use of alternatives to family courts to resolve family law issues
  • increased access to legal information and legal assistance in family law matters, especially for the poor, single parents and First Nations people.
    Report at publications (2)

Following a release of the Task Force's Report, an implementation committee was formed to implement the recommendations contained in the Report. 

One such recommendation is the implementation of an alternative model for the Court of Queen's Bench, Family Division, based on the Ottawa Family Court pilot project, which is planned to be piloted in the Fall of 2009.

  • To increase the efficiencies of all Court matters that touch the lives of children, especially those in child protection.
  • To identify those families who would benefit from professionals who could assist them to settle their issues.
  • To identify high-conflict parties early and move them to trial expeditiously, while giving them access to justice through case conferencing while they wait for their court date.
    Report at 47

Piolt Project

  • alternative dispute resolution
  • Court of Queen's Bench of New Brunswick
  • delay
  • family courts
February 2008 Task Force appointed
January 2009 Report of the Task Force presented
February 2010 Pilot project details released
2009 New Brunswick Family Law Information Centre (FLIC)

New Brunswick

Court of Queen's Bench, Family Division

Access to Family Justice Task Force recommendation for a legal education and information centre for self-represented litigants with family law issues.

For the purpose of assisting self-represented parties accessing the Court system (as part of Stage 1), the Task Force recommended a creation of a FLIC, to be located in the courthouse.

Need for a Family Law Information Centre (FLIC)

The self-represented litigant needs our assistance, as does the judge, in the area of the gathering and presentation of the required information. To this end, Family Law Information Centres (FLIC) in the courthouse will benefit everyone in the system.

Ontario has a FLIC in most of the courthouses where family law courts sit. We would do well to imitate them rather than attempting to redesign the wheel. In most family law court facilities, there is a room which could be easily adapted into a technological information centre that includes a step-by-step touch screen to provide an information video on court procedures and required forms, a frequently-asked-questions icon, examples of forms, and simple rules of procedure court etiquette. As well, there should be a vending machine to produce a set of forms which are user-friendly. (Suggested cost per set of forms: $20.) The Ontario forms work very well as they are - for the most part - tick boxes and short answers. The forms, which commence the proceeding, do not require affidavits or specific statute citation. These forms are all that are required to get the self-represented litigant before a judge or other judicial officer in a timely manner.

The rooms would not require personnel for monitoring as they would be located next to the commissionaire or sheriff stations. The content would come from a central computer. Currently, the counter staff in most Family Court offices are not only shorthanded but spend an inordinate part of the day answering questions or having to explain forms to self-represented litigants.

Report at 49-50

Access to Family Justice Task Force, led by Justice Raymond Guerette of Campbellton, was appointed in February 2008 and mandated to make recommendations that would lead to:

  • more timely access to justice in resolving family law disputes
  • expanded use of alternatives to family courts to resolve family law issues
  • increased access to legal information and legal assistance in family law matters, especially for the poor, single parents and First Nations people.
    Report at publications (2)

Following a release of the Task Force's Report, an implementation committee was formed to implement the recommendations contained in the Report. 

One such recommendation is the creation of Family Law Information Centre (FLIC) as part of the alternative model for the Court of Queen's Bench, Family Division, based on the Ottawa Family Court pilot project, which is planned to be piloted in the Fall of 2009.

  • alternative dispute resolution
  • Court of Queen's Bench of New Brunswick
  • delay
  • family courts
February 2008 Task Force appointed
January 2009 Report of the Task Force presented
Fall 2009 Proposed date for pilot
2009 Nova Scotia Action for Claim Valued Under $100,000 (Rule 58)

Nova Scotia

Supreme Court of Nova Scotia

Supreme Court of Nova Scotia rule allowing parties to opt in to Rule 57 expedited procedure on agreement or motion.

Rule 58 - Action for Claim Valued Under $100,000 offers the prospect of using R.57 economical procedures in cases where R.57 would not otherwise apply. Rule 58 expands to include causes of action not mentioned in R.57, and actions seeking remedies other than damages.

Unlike R.57, which is mandatory if the criteria apply, R.58 can be invoked by any party and applied on agreement or motion. The moving party must satisfy a three part test under R.58.02(2):

  • a) The claim can be estimated in money and there is no significant intangible interest at stake;
  • b) The fair estimated value of the plaintiff's claim is under $100,000 and there is no counterclaim, crossclaim or third party claim with a fair estimated value in excess of $100,000;
  • c) The expense of taking the action to its conclusion will be disproportionate to the interests at stake, unless R.57 is applied, or similar directions are given.

Once satisfied, the court can apply R.57, or give customized directions for disclosure, limit discovery, require witness lists and will-says, limit time for trial or examinations, or any other directions that will make the cost proportionate to the interests at stake. Rule 58 offers considerably more flexibility than R.57. Rule 58.01(2) appears to allow parties to agree to economical limits notwithstanding that the value of the claim exceeds $100,000.

Applicability where remedy sought includes a declaration affecting ongoing payments - Contract claims involving the cessation of ongoing payments (e.g. disability insurance) do not fit within R.57, as part of the relief claimed typically includes a declaration dealing with future entitlement. Remedies are not limited under R.58, but the applicability of the Rule will depend on whether the "fair estimated value" of the plaintiff's claim includes future amounts exceeding $100,000 that are dealt with by declaration.

Training Materials, Module 2 at 16-17

Rule 58, governing actions for claims under $100,000, went into effect on January 1, 2009.

The Rule was developed as part of the Nova Scotia Rules Revision Project. Unlike Rule 57, which is mandatory simplified procedure for certain claims under $100,000, Rule 58 can be invoked by any party and applied on agreement or motion.

Rule 58 allows the parties to select simplified procedure which limits pre-trial and trial procedures.

Permanent Implementation

  • expedited litigation
  • rules of court
  • Supreme Court of Nova Scotia
February 2008 Draft Rules received tentative approval
June 2008 Rules formally approved
January 2009 Rules went into effect
 

 

 

2009 Nova Scotia Action for Claim Valued Under $100,000 (Rule 58)

Nova Scotia

Supreme Court of Nova Scotia

Supreme Court of Nova Scotia rule allowing parties to opt in to Rule 57 expedited procedure on agreement or motion.

Rule 58 - Action for Claim Valued Under $100,000 offers the prospect of using R.57 economical procedures in cases where R.57 would not otherwise apply. Rule 58 expands to include causes of action not mentioned in R.57, and actions seeking remedies other than damages.

Unlike R.57, which is mandatory if the criteria apply, R.58 can be invoked by any party and applied on agreement or motion. The moving party must satisfy a three part test under R.58.02(2):

  • a) The claim can be estimated in money and there is no significant intangible interest at stake;
  • b) The fair estimated value of the plaintiff's claim is under $100,000 and there is no counterclaim, crossclaim or third party claim with a fair estimated value in excess of $100,000;
  • c) The expense of taking the action to its conclusion will be disproportionate to the interests at stake, unless R.57 is applied, or similar directions are given.

Once satisfied, the court can apply R.57, or give customized directions for disclosure, limit discovery, require witness lists and will-says, limit time for trial or examinations, or any other directions that will make the cost proportionate to the interests at stake. Rule 58 offers considerably more flexibility than R.57. Rule 58.01(2) appears to allow parties to agree to economical limits notwithstanding that the value of the claim exceeds $100,000.

Applicability where remedy sought includes a declaration affecting ongoing payments - Contract claims involving the cessation of ongoing payments (e.g. disability insurance) do not fit within R.57, as part of the relief claimed typically includes a declaration dealing with future entitlement. Remedies are not limited under R.58, but the applicability of the Rule will depend on whether the "fair estimated value" of the plaintiff's claim includes future amounts exceeding $100,000 that are dealt with by declaration.

Training Materials, Module 2 at 16-17

Rule 58, governing actions for claims under $100,000, went into effect on January 1, 2009.

The Rule was developed as part of the Nova Scotia Rules Revision Project. Unlike Rule 57, which is mandatory simplified procedure for certain claims under $100,000, Rule 58 can be invoked by any party and applied on agreement or motion.

Rule 58 allows the parties to select simplified procedure which limits pre-trial and trial procedures.

Permanent Implementation

  • expedited litigation
  • rules of court
  • Supreme Court of Nova Scotia
February 2008 Draft Rules received tentative approval
June 2008 Rules formally approved
January 2009 Rules went into effect
 

 

 

2009 Report on Proposals for a New Commercial Tenancy Act

British Columbia 

The Commercial Tenancy Act Reform Project began in the summer of 2007, with a
mandate to study British Columbia’s major commercial leasing statute and to make
recommendations for its reform. Work on the first phase of the project progressed
throughout the fall of 2007 and the winter and spring of 2008, concentrating on ex‐
amining the deficiencies of the current legislation and studying leading models for
reform. This phase of the project culminated in the publication in September 2008 of
the Consultation Paper on Proposals for a New Commercial Tenancy Act. The consul‐
tation paper asked for public comment on fifty‐eight tentative proposals for reform.
After a six‐month consultation period ended in March 2009, the second phase of the
project began. This phase focussed on considering the responses to the consultation
paper, settling the project’s final recommendations, and implementing those regula‐
tions in draft legislation. The Report on Proposals for a New Commercial Tenancy Act
is the culmination of all this work on the project.

Completed 

  • landlord
  • tenant 
Date Event
2009 Report on Proposals for a New Commercial Tenancy Act

British Columbia

British Columbia Law Institute

 

The
 Commercial
 Tenancy
 Act
 Reform
 Project
 began
 in
 the
 summer
 of
 2007,
 with
 a
 mandate
 to
 study
 British
 Columbia’s
 major
 commercial
 leasing
 statute
 and
 to
 make
 recommendations
 for
 its
 reform.
 Work
 on
 the
 first
 phase
 of
 the
 project
 progressed
 throughout
 the
 fall
 of
 2007
 and
 the
 winter
 and
 spring
 of
 2008,
 concentrating
 on
 examining
 the
 deficiencies
 of
 the
 current
 legislation
 and
 studying
 leading
 models
 for
 reform.
This
phase
of
the
project
culminated
in
the
publication
in
September
2008
of
 the
 Consultation
 Paper
 on
 Proposals
 for
 a
 New
 Commercial
 Tenancy
 Act.
 The
 consultation
 paper
 asked
 for
 public
 comment
 on
 fifty‐eight
 tentative
 proposals
 for
 reform.
 After
a 
six month
 consultation 
period 
ended 
in 
March
2009,
 the 
second 
phase 
of 
the
 project 
began.
This 
phase 
focussed 
on 
considering 
the
responses 
to 
the 
consultation
 paper,
settling
 the
project’s 
final 
recommendations, 
and
implementing
 those 
regulations
 in 
draft
legislation.
The
 Report
 on
 Proposals 
for 
a
 New
Commercial
 Tenancy
 Act
 is 
the 
culmination
 of
all 
this 
work 
on 
the
 project.


The
 Commercial 
Tenancy 
Act 
Reform
 Project
was 
made 
possible 
by 
funding 
from
 the
 Real
Estate
 Foundation
 of
 British 
Columbia 
and
 the
Notary 
Foundation
 of
 British 
Columbia.


The
 Commercial 
Tenancy 
Act 
Reform
 Project
 is 
focused
 on 
the 
Commercial 
Tenancy
 Act
 and
 allied
 legislation,
 such
 as
 selected
 provisions
 of
 the
 Property
 Law
 Act,
 the
 Law
 and
 Equity
 Act,
 the
 Land
 Title
 Act,
 and
 the
 Land
 Transfer
 Form
 Act.
 This
 project
 does
 not
 address
 residential
 leases—that
 is,
 leases
 for
 living
 accommodations.
 In
 this
 way,
 it
 follows
 a
 division
 that
 has
 been
 present
 in
 British
 Columbia
 leasing
 law
 since
the
1970s,
which
 has 
separate 
statutes 
for 
commercial
 and 
residential 
leases.
 

The
 current 
Commercial 
Tenancy
 Act 
has 
outlived 
its 
utility 
as
 a 
legal 
framework 
for
 commercial
 leasing 
in
 British 
Columbia. 
The
Report 
on 
Proposals 
for 
a 
New
 Commercial
 Tenancy
 Act
 provides
 a
 practical
 model
 for
 a
 new
 legal
 framework
 that
 is
 more
 responsive
 to
 the
 needs
 of
 commercial
 leasing
 in
 twenty‐first
 century
 British
 Columbia.
 

Completed

  • Landlord and tenant
  • Commercial Tenancy Act
  • Rent Distress Act

 

2009 Waivers of Liability for Sporting and Recreational Injuries

Manitoba

Manitoba Law Reform Commission 

This report deals with the use of written contractual waivers of liability by providers of sporting and recreational activities. Contractual waivers are usually required for consumers to participate in a wide variety of activities. This report recommends that there be limitations on the use of waivers of liability for personal injuries or death resulting from negligence in sporting and recreational activities. 

Civil liability for providers of sporting and recreational activities for the personal injuries or death of consumers may arise under three regimes of legal responsibility: The Occupiers’ Liability Act, the tort of negligence or the law of contract. Usually, waivers are designed to negate the civil liability of providers of sporting and recreational activities for the personal injuries or death of consumers. This report reviews the potential bases of liability and the principles controlling the validity and scope of waivers of liability.
The Business Practices Act and The Consumer Protection Act contain sections that relate to the provision of commercial services including the providers of sporting and recreational activities and generally are aimed at protecting consumers from the consequences of unequal bargaining power and unfair business transactions.
This report reviews Canadian case law on personal injury and fatality claims made against providers of sporting and recreational activities that have been defended in full or in part by the use of a contractual waiver of liability. Providers and consumers are faced with a very uncertain regime of responsibility and the outcome depends upon the technicalities of waiver validity and interpretation and judicial discretion.
Critics of waivers of liability argue that there is much disparity of information, knowledge and understanding of the function of waivers, that waivers negate the accident prevention function of negligence law designed to encourage cost effective steps to protect the safety of persons and that waivers allocate the cost of negligent conduct not solely to the consumer but also to society at large through the provision of health care and disability services. Proponents of waivers of liability assert the freedom to contract, that there are sufficient consumer protection principles in contract law and legislation and that the unburdening of tort losses enables providers to offer sporting and recreational activities at a lower cost. 

The Commission makes recommendations regarding the enactment of new legislation and suggests that in conjunction with the implementation of new legislation, public awareness initiatives be conducted respecting the rights and remedies of consumers. 

Completed

  • legal liability
  • risk management
  • recreation
  •  sport
  • negligence
2010 Consultation Paper: Civil Rights in Saskatchewan Long-term Care Facilities

Saskatchewan 

Law Reform Commission of Saskatchewan

There is little doubt that abuse is a potential problem in long-term care facilities. Studies across Canada have shown that abuse occurs, and that active measures are necessary to control it. Saskatchewan long-term care facilities are aware of abuse issues. Almost all have protocols to deal with abuse, and most have educational programs to familiarize staff with the problem of abuse. It is not the purpose of this paper to review these efforts in detail. The focus is, rather, on violations of the rights of residents, particularly when they do not involve physical abuse, and particularly when they may not be effectively addressed by existing protocols designed to deal with more blatant forms of abuse.

The purpose of this paper is to encourage discussion, and to solicit input from members of the community. The Commission hopes that respondents will assist it in clarifying civil rights concerns in long-term care, and help it to articulate appropriate steps which should be taken to ensure protection of civil rights of residents.

The issues and question raised in this paper are difficult. They are also important enough to warrant our collective attention. We should, through the long-term care system we create, provide the highest quality of life that we can for residents. Compassionate and caring long-term care homes and their staff, as well as residents and their families, are well served when we provide appropriate structures for enunciating and safeguarding the civil rights of residents in long-term care.

This consultation paper is intended to provide background for a discussion about ways to protect the rights of residents in long-term care. The questions for consideration set out below are intended to help focus the discussion, but are hardly exhaustive of the issues raised here.
1. Are protections for the civil rights of residents in long-term care (special care and personal care homes) adequate at present?
2. Should a residents’ bill of rights be required for all long-term care homes? If so, should it be legislated, or should each facility be required to adopt its own bill of rights?
3. Should investigation of complaints of abuse (including violations of civil rights) be mandatory? If so, should an independent investigative agency be designated to investigate, recommend, and direct remedies for abuse?
4. Should an independent advocate to represent residents and their interests be created? 

 

Completed

  • Long term care facilities 
  • Elder abuse
  • Older persons
  • Personal care homes

 

2010 Limitations

Manitoba

The Manitoba Law Reform Commission has been aware for some time of initiatives under way in other Canadian jurisdictions to make major reforms to the legislation governing the limitation of actions. In the last several years, the initiatives have moved from the recommendations of law reform bodies to the legislative chambers of four Canadian provinces, and have resulted in some dramatic changes to their legislative regimes.

Manitoba reformed its limitations legislation in a significant way in the 1960s, but no other province has followed a similar path, so that Manitoba's limitations legislation has always been unique in its treatment of some important issues. Now those issues have been addressed by other provinces in a significantly different and, in the Commission's opinion, more satisfactory way for current times. It is time for Manitoba to do the same. 

This report concerns itself with a review and discussion of The Limitation of Actions Act. While this Act is not the sole source of statutory limitation provisions in Manitoba, it is the single most important one. The Commission has not undertaken a review of specific limitations provisions in other statutes, but it makes a recommendation regarding such a review in order to ensure that Manitoba's entire limitations regime is as consistent and coherent as possible. 

The most important proposal is for the abolition of the various categories of claims set out in the current Act, and their replacement with a single, basic two year limitation applicable to all claims unless they are otherwise dealt with. This two year limitation would begin running when the existence of a claim was discovered or discoverable, instead of when the cause of action arose. There would be exceptions in areas such as claims arising out of sexual assaults or assaults in intimate or dependent relationships, claims of aboriginal title, proceedings for a declaration of existing rights if no consequential relief is sought, and proceedings to recover fines or taxes owing to the Crown.

Completed

  • Litigation
  • Law commission
  • Manitoba government 
2010 Report on New Probate Rules

British Columbia

The British Columbia Law Institute

Probate Rules concerns reform of the rules of court relating to probate and administration of estates in British Columbia. It is a necessary sequel to the Succession Law Reform Project which BCLI completed in 2006. It s intended in part to implement procedural recommendations made in the Final Report for that project. The Probate Rules Revision Project is funded by the Ministry of Attorney General of British Columbia.

This report results from the Probate Rules Reform Project undertaken by the British Columbia Law Institute (BCLI) with the support of the Ministry of Attorney General.Two major legal developments led to the Probate Rules Reform Project. The first was the enactment of the Wills, Estates and Succession Act (WESA) in 2009. Changes to the rules of court dealing with probate business are needed before the WESA can be brought into force. The second development was the general reform of the rules of the Supreme Court of British Columbia that culminated in the Supreme Court Civil Rules (Civil Rules). The former Rules 61 and 62 could not be given a high priority for revision in that process and appear largely unchanged as Rules 21-­5 and 21­‐4, respectively, in the Civil Rules. Comprehensive revision of Rules 21-­4 and 21-­5 was needed to accommodate the WESA and modernize the probate process in keeping with the spirit of the Civil Rules. 
The Project Committee’s approach to reform of the probate rules was fourfold. First, there would be an attempt to design an optimal procedure instead of simply improving on the existing one. Second, aspects of probate procedure that have outlived their usefulness would no longer be retained simply for historical reasons. Third, in recognition of the fact that unrepresented persons initiate much probate business, procedures would be simplified where possible. The revised probate rules would provide more explicit guidance than Rules 61 and 62 now do. Fourth, differences between procedures in probate matters and general civil procedure as remodeled under the new Civil Rules would be harmonized to the extent possible.
Part One of the report explains the background to the procedural reforms that the new probate rules intended to replace Rules 21‐4 and 21‐5 would introduce. Part Two contains the recommended new probate rules and commentary on them. Following the general format of the Civil Rules, the new probate rules take the form of subrules grouped under one principal rule. The numbering of that principal rule is left to the decision of the Supreme Court Rules Revision Committee. As the new rules abandon the present contentious / non‐contentious classification of probate business, division of the subrules between two principal rules of court was not seen as necessary.
The new probate rules in Part Two are intended to accommodate a system in which a single court file for the estate would be opened when the first filing (typically an application for a common form grant) is made. Subsequent proceedings that currently must be pursued in separate actions with different court files and file numbers, such as probate in solemn form and revocation, would be initiated instead by interlocutory application within the same estate file. The relatively rare cases in which a proceeding for probate in solemn form is begun before any other step has been taken in the estate, such as an application for a common form grant, would be exceptions. In those cases, the proceeding would commence by petition. The procedure in contested matters would be only as elaborate as necessary to resolve the particular matter, ranging from an ordinary chambers argument to summary trial on affidavits to a regular civil trial with oral evidence. This is seen as serving the principle of proportionality embraced by the Civil Rules. 

Among the other significant changes to probate procedure proposed in this consultation paper are the following: 

  • a 21 day notice period that must elapse between the notice of an intended application for a grant of probate or administration and the filing of the application;
  • a single application form for a grant or resealing, comprising the information now found in the applicant’s affidavit and the disclosure document concerning the deceased, the last will if any, and the deceased’s estate;
  • abolition of the need to “clear off” potential administrators having equal or prior right to a grant;
  • provision for an application to remove a caveat;
  • provision for new procedures at the probate stage contemplated by the Wills, Estates and Succession Act, such as curative orders to admit wills to probate despite formal defects, rectification of wills and upholding of gifts to attesting witnesses in some circumstances;
  • deletion of the schedule of proposed distribution from an application for a grant or resealing;
  • disclosure of debts in an application for a grant or resealing would be limited to debts encumbering specific assets;
  • discontinuance, consent dismissal, and settlement without leave of the court would be permitted in contested probate proceedings as in other civil matters, and default judgment would be possible except in proceedings for revocation;

BCLI believes the new probate rules set out in this report will modernize and simplify probate procedure in keeping with the objects of the new Civil Rule. 

Completed

  • wills, estates & life planning
  • rules of Court
  • probate Rules
  • courts & tribunals
  • administration of estates
  • property law

 

2010 The Matrimonial Property Act: A Case Law Review

Alberta

Alberta Law Reform Institute 

 

  • This summary was created on 2012-07-11
  • It was last reviewed to ensure accuracy on 2012-07-11

The Alberta Law Reform Institute proposed the legislation that became the Matrimonial Property Act (MPA) more than 30 years ago and there has been no substantive amendment to the MPA since then. ALRI has received suggestions that the legislation is in need of revision but there was little consensus as to which areas were in need of review. In order to advance the research, ALRI financed the work of Annie Voss-Altman, a student at the Faculty of Law, University of Calgary, under the supervision of Professor Jonnette Watson Hamilton. It was hoped that their 10 year review of judicial decisions would identify any areas where reform would clarify policy or resolve problematic issues. ALRI’s Director reviewed the initial sample cases and the categories contained in the database.

The purpose of this case law review was to identify the most frequently raised and the most troublesome issues that the courts dealt with in order to determine whether revisions to the MPA might be necessary. In addition, we identified rules and presumptions that have been used by the courts to supplement the MPA as their existence might point to gaps in the legislation. 

"We have prioritized what we see as the six major issues, but we also mention seven other issues. Issues are classified as “major” when they arise frequently, have multiple sub-issues, and have no obvious or easy solutions. We put the other issues in a separate category when their resolution appears to be easier, or a matter for the federal government, or already under investigation by a law reform organization, or fewer people appear to be affected. "

Completed

Family law

2010 The Rule Against Perpetuities

Nova Scotia

In September of 2008 the Attorney General for the Province of Nova Scotia requested the Commission’s advice and recommendations concerning the rule against perpetuities (“the Rule”). This followed a request from the Nova Scotia Barristers’ Society to the Nova Scotia government, that the province develop legislation to abolish the Rule. This Discussion Paper sets out the Commission’s preliminary proposals for reform, and invites comments as to those proposals and related matters. 

The rule against perpetuities limits the duration of certain restrictions on the use and transfer of property. The Rule is to the effect that no legal interest in property is valid unless it is certain, at the time when the disposition (e.g., a trust) takes effect, that the interest must vest within a life or lives in being plus twenty-one years.1 In other words, property may not be tied up in trust, subject to restricted use, or otherwise held subject to any contingency, for longer than twenty-one years after the death of a person who is alive at the time of the disposition and whose life is relevant to the validity of the disposition. The Rule applies to all sorts of property interests - e.g., options to purchase, conditional easements, remainder estates, etc. - but today arises most commonly in connection with trusts.

The Rule is generally understood to serve the purpose of balancing the rights of property owners to impose conditions on the use and exchange of their property against the importance of having property under the control of living persons, so that it may be put to its best contemporary use.

The common complaint is that the Rule is simply too complex and abstract in its application, resulting in a substantial risk that beneficiaries or grantees will be deprived of their interests through inadvertent errors in drafting. In the estate planning context, a great number of vesting conditions may offend the Rule, most often unintentionally, and often only hypothetically in any event. The consequence of a breach is very real, however; the intended gift or transfer will generally be entirely invalid.

In practice, the difficulty arises largely from the Rule’s preoccupation with remote hypotheticals. The question of whether a disposition offends the rule is decided at the time that the disposition takes effect (e.g., in the case of a will, upon the death of the testator). At that point, it must be certain that there is no possible contingency upon which the legal interest in the property may not vest within the perpetuity period. Even if it can be anticipated that later events will likely foreclose the possibility of the interest failing to vest, the gift will nonetheless be invalid at the outset. In order to be certain, at the time when the disposition is effective, that the interests it creates are valid, all contingencies possible as of that time must be canvassed. If one of them results in an interest vesting beyond the perpetuity period, or not at all, the disposition is void at the outset.
The complexity of the Rule is compounded by the concept of identifying a ‘life or lives in being’, and the not always clear distinction between vested and contingent property interests. The Rule is also marked by a series of exceptions that depend in many cases on very subtle distinctions in language; e.g., the distinction between conditions subsequent (bound by the Rule) and determinable fees (not bound). All of this compexity leads to a series of traps for the drafter of a postponed, restricted or conditional property transfer. Only with a complete grasp of the Rule, including all of its exceptions and partial exceptions, and a thorough canvasing of all remote and unlikely possibilities of lifespan and life events of all possible ‘lives in being’ and their offspring, can the drafter have confidence that perpetuities problems have been avoided.

Given these difficulties, the Rule has been subject to significant reform in most jurisdictions other than Nova Scotia. The most common sort of reform - referred to generally as ‘wait and see’ - maintains the substance of the Rule, but allows the disposition to run its course for the perpetuity period, rather than declaring it to be invalid at the outset. An unlikely, but possible contingency which under the common law Rule would invalidate the transfer at the outset may be foreclosed within the perpetuity period. If so, under ‘wait-and-see’ the transfer will be saved. Wait and see reforms are often accompanied by further saving provisions, in case the gift remains invalid even after the perpetuity period has run its course. These rules authorize the court to modify the terms of the transfer only so much as is necessary to save it from invalidity under the Rule.

We recommend abolition. We are not persuaded that there is anything necessarily objectionable about all long-term trusts and other sorts of conditional property interests. Certainly in some cases they will present inconvenience or hardship, but in those cases we see the value of a court power to modify or terminate the interest, with due consideration for the benefit of the holder where appropriate. The experience of the courts under variation of trusts legislation strengthens our impression that a case- specific approach to the problem of unvested, contingent property interests is preferable to a categorical rule which deems all such interests void after a certain period of time. Along with our proposal for the abolition of the rule against perpetuities, we propose the expansion of the courts’ power to vary trusts. In particular, we would not require the consent of all adult, capacitated beneficiaries, as the Variation of Trusts Act now effectively does. The requirement for consensus puts too much power in the hands of a recalcitrantbeneficiary, with no recourse to have a dispute about a proposed variation of the terms of the trust to account for changing circumstances properly adjudicated.

We further propose a new variation power in respect of non-trust unvested property interests, along the lines of the variation of trusts legislation. These interests may present inconvenience or hardship to the present-day holders of property, and we think the court ought to be able to deal with them in such cases. We propose certain limits on the exercise of the power - in particular that notice be given to the holder of such interest if at all possible, that the intentions of the transferor, if objectively ascertainable, be respected, and the requirement for compensation in some cases to be paid or held in trust for any ascertained or ascertainable interest holder. We would not impose any requirement that a certain period of time must pass before the power may be exercised.

Finally, we propose that the abolition of the Rule be made retrospective, so as to apply to any interest which might be held invalid under the Rule, regardless of when the transferring instrument (e.g., will or deed) was effective. The proposed retrospectively would be subject to any interest which has vested, as well as prior judicial decisions and acts taken in reliance on the Rule (e.g., a property purchase on the basis of a solicitor’s opinion that a remote interest in the property was void under the Rule), prior to the effective date of the abolishing legislation. 

Completed

Date Event
2010 Transition to the New Rules of Court

Alberta

Alberta Law Reform Institute

Court of Appeal

The Alberta Rules of Court came into force on November 1st, 2010. This paper outlines the transition provisions and how the new rules will affect existing proceedings. The general principle is that the new rules will apply to all existing proceedings from November 1st.

This paper reviews where specific new rules will not apply to certain proceedings and where specific former rules will continue in force, as well as the availability of Court assistance to resolve doubt or difficulties concerning the transition. The paper then reviews the standardized system of time periods under the new rules. Under this standardized system, most time periods are slightly longer although a few are shorter. There are specific transition provisions for dealing with these changes to time periods. Except as expressly noted, this paper does not address the family law rules contained in Part 12 of the new rules. 

Completed

  • Rule
  • Court services
  • Validity
  • Appeal
  • Substantive
  • Limitation

 

2010 Vancouver Justice Access Centre Self-help and Information Services (previously BC Supreme Court Self-Help Information Centre)

British Columbia

Collaboration between government and non-governmental bodies

BC Supreme Court, Civil and Family divisions

Evaluation objectives flowing from project objectives can be itemized as follows:

  • To determine the degree to which the centre assists users to access information, education and referrals services.
  • To determine the effectiveness of the centre service delivery model including the collaborative and consultative structure to which government and community partners contribute.
  • To identify effective practices and/or any barriers in the implementation of the project that can inform future program implementation.
  • To determine the degree to which the Centre, by increasing unrepresented litigant's access to justice, also facilities efficiencies in the court system.
  • Qualitative information was gathered in 116 interviews carried out during the project, including 35 interviews with SHC users (Final Evaluation at 13, 8).

Self-help centre for unrepresented litigants offering advice, information, and education about procedures in the Supreme Court of British Columbia.
The Supreme Court Self-Help Information Centre is now part of the Vancouver Justice Access Centre, where self-help and information services are provided. This has led to a wider range of civil law information and self-help topics, as well as references to services that are available through the Vancouver Justice Access Centre.

Over the past five to ten years, unrepresented litigants have emerged as an identifiable target group for services. In response to the increasing number of unrepresented litigants, justice system partners began the Developing Models for Coordinated Services for Self-Representing Litigants project in the spring of 2004.

Government and non-government agencies collaborated in designing the Centre and determining the services that would help unrepresented litigants.... The pilot project received funding from the Law Foundation of BC, the Vancouver Foundation, and the Ministry of Attorney General. It also received extensive contributions of technical expertise, staff resources, and products from all the participating agencies, both government and non-government (Final Evaluation at 12-13).

The purpose of the pilot project was to design a self-help centre (SHC) for unrepresented litigants that would facilitate access to justice by offering advice, information, and education about procedures in the Supreme Court of British Columbia. SHC services comprise of a range of resources developed by partnering organizations as well as the in-person service delivered by the two staff who work at the physical location. The office is open for walk-in service and there is no financial eligibility test for accessing services and resources. Although the Centre's purpose is to provide services to unrepresented litigants in its Vancouver location, services are offered to all walk-ins, regardless of where their Supreme Court case originates (Final Evaluation at 6).

Interview data shows that the centre was providing a unique set of self-help services and was forming part of a larger context of emerging services for unrepresented litigants.

Users reported the centre as largely effective in satisfying their needs and in helping them prepare for court. In addition, the centre was seen as effective in connecting users to appropriate services through referrals. Through these actions, the centre was also seen to yield efficiencies at the level of court proceedings and the operation of the registry (Final Evaluation at 8).

Ongoing collaboration

  • court assistance
  • legal information centres
  • public legal education and information
  • self-represented litigants
  • Supreme Court of British Columbia
  • family law
  • alternative dispute resolution
April 2005 Pilot project commenced
April 2006

Program funded for 2006-2007

June 2010

The Supreme Court Self-help Information Centre is now called Self-help and Information Services and is part of the Vancouver Justice Access Centre.

 

2010 Vancouver Justice Access Centre Self-help and Information Services (previously BC Supreme Court Self-Help Information Centre)

British Columbia

Collaboration between government and non-governmental bodies

BC Supreme Court, Civil and Family divisions

Evaluation objectives flowing from project objectives can be itemized as follows:

  • To determine the degree to which the centre assists users to access information, education and referrals services.
  • To determine the effectiveness of the centre service delivery model including the collaborative and consultative structure to which government and community partners contribute.
  • To identify effective practices and/or any barriers in the implementation of the project that can inform future program implementation.
  • To determine the degree to which the Centre, by increasing unrepresented litigant's access to justice, also facilities efficiencies in the court system.
  • Qualitative information was gathered in 116 interviews carried out during the project, including 35 interviews with SHC users (Final Evaluation at 13, 8).

Self-help centre for unrepresented litigants offering advice, information, and education about procedures in the Supreme Court of British Columbia.
The Supreme Court Self-Help Information Centre is now part of the Vancouver Justice Access Centre, where self-help and information services are provided. This has led to a wider range of civil law information and self-help topics, as well as references to services that are available through the Vancouver Justice Access Centre.

Over the past five to ten years, unrepresented litigants have emerged as an identifiable target group for services. In response to the increasing number of unrepresented litigants, justice system partners began the Developing Models for Coordinated Services for Self-Representing Litigants project in the spring of 2004.

Government and non-government agencies collaborated in designing the Centre and determining the services that would help unrepresented litigants.... The pilot project received funding from the Law Foundation of BC, the Vancouver Foundation, and the Ministry of Attorney General. It also received extensive contributions of technical expertise, staff resources, and products from all the participating agencies, both government and non-government (Final Evaluation at 12-13).

The purpose of the pilot project was to design a self-help centre (SHC) for unrepresented litigants that would facilitate access to justice by offering advice, information, and education about procedures in the Supreme Court of British Columbia. SHC services comprise of a range of resources developed by partnering organizations as well as the in-person service delivered by the two staff who work at the physical location. The office is open for walk-in service and there is no financial eligibility test for accessing services and resources. Although the Centre's purpose is to provide services to unrepresented litigants in its Vancouver location, services are offered to all walk-ins, regardless of where their Supreme Court case originates (Final Evaluation at 6).

Interview data shows that the centre was providing a unique set of self-help services and was forming part of a larger context of emerging services for unrepresented litigants.

Users reported the centre as largely effective in satisfying their needs and in helping them prepare for court. In addition, the centre was seen as effective in connecting users to appropriate services through referrals. Through these actions, the centre was also seen to yield efficiencies at the level of court proceedings and the operation of the registry (Final Evaluation at 8).

Ongoing collaboration

  • court assistance
  • legal information centres
  • public legal education and information
  • self-represented litigants
  • Supreme Court of British Columbia
  • family law
  • alternative dispute resolution
April 2005 Pilot project commenced
April 2006

Program funded for 2006-2007

June 2010

The Supreme Court Self-help Information Centre is now called Self-help and Information Services and is part of the Vancouver Justice Access Centre.

 

2010 Wills and the Legal Effects of Changed Circumstances

Alberta

Alberta Law Reform Institute

In its Final Report on Wills, the Alberta Law Reform Institute (ALRI) makes a number of recommendations for reform of the Wills Act. The main recommendations are in the following areas:  Changes that Alter or Revoke a Will,  Revocation by Law,  Reviving a Revoked Will,  Admission of Extrinsic Evidence,  Rectification,  Failed Gifts,  Beneficiary Issues,  Ademption by Conversion,  Legal Discrimination Against Children Born Outside Marriage.

The report examines case law as well as statutes in other jurisdictions such as other Canadian provinces, England, Australia, New Zealand, Ireland and Scotland.

Completed

  • Wills and estate law
  • Comparative and foreign law 

 
 

2010 Workplace Dispute Resolution Project

British Columbia

British Columbia Law Institute 

In 2010, at the request of the provincial Ministry of Labour, the British Columbia Law Institute (BCLI) undertook a brief study of the merits of establishing a Workplace Tribunal for British Columbia. The Ministry provided the BCLI with a specific model for consideration. This proposed model left elements of the existing BC framework, such as the grievance arbitration system, unchanged, and required the creation of a new Workplace Services Branch with responsibilities including investigation, alternative dispute resolution and first line decision-making powers over employment standards complaints and human rights complaints originating in non-unionized workplaces. The model was centered around a new tribunal with jurisdiction over all employment-related disputes now adjudicated by the Labour Relations Board and the Employment Standards Tribunal, appeals from determinations by the Workplace Services Branch with respect to employment standards and human rights matters, as well as limited power to reconsider its own decisions on specified grounds. In effect, the new model would eliminate the Human Rights Tribunal’s jurisdiction over workplace-related complaints – about 60% of its current caseload.

The BCLI research project involved international comparative research into existing workplace dispute resolution systems, and a targeted consultation of BC stakeholders selected jointly by the Ministry and the BCLI. The 59-page final report of the BCLI contains: (1) an outline of the proposed model; (2) a brief overview of the existing workplace dispute resolution framework in BC; (3) a summary of comparative research (UK, Australia, New Zealand); (4) a summary of the consultation session feedback; and (5) a discussion of findings and conclusions including an assessment of the strengths and weaknesses of the proposed model.

This report summarizes the results of the BCLI’s research and consultation, and addresses the following questions that were put to the BCLI in the Ministry’s reference:

  1. What are the merits of establishing a unified Workplace Tribunal as proposed?
  2. What legal and other issues are raised by the proposal to replace the current system with the Workplace Tribunal?
  3. What is the experience in other jurisdictions where a comparable approach has been implemented?
  4. Does the experience in those jurisdictions suggest other and better ways to achieve some or all of the objectives?
  5. What findings and conclusions can be made from the research, analysis and consultation?

The findings section of this study paper is lengthy and this executive summary is not able to