Inventory of Reforms

The original concept draft of the new rules focused on upfront planning and agreement by the parties on pre-trial procedures. It required that each case have a case plan order before taking steps in the litigation process. The case plan order was to address dispute resolution options, dates for the exchange of documents, an electronic document protocol, the parameters of oral examinations for discovery, and basic information about the planned use of experts. If the parties were unable to agree on a case plan order, the order would have to be made through a case planning conference (CPC) before the parties could take steps in litigation.

Concern was expressed in the consultation that the proposal to require case plan orders before steps could be taken in the litigation might result in the holding of unnecessary CPCs and therefore the creation of unnecessary costs. To address those concerns, the new rules do not automatically require a case plan order and therefore do not include any provisions for consent case plan orders. Instead, the new rules use a party driven model, similar to the Notice to Mediate process. The party driven model does not require a CPC, but makes it available if one party to the litigation requests that a CPC be held, absent court order to the contrary. At the CPC, the judge or master will set the parameters of the litigation, guided by proportionality principles, and the results of the conference will be set out in a case plan order. The consultation produced additional objections about the requirement that clients be personally present at CPCs. This provision was therefore dropped so that clients who are represented by counsel are not required to attend the CPC.