News and Views Issue 5: Fall 2002
Managing Litigation in Canada
Doris I. Wilson, QC, Special Counsel to the Alberta Law Reform Institute's Rules of Court Project*
In the Canadian civil justice system, litigants or their counsel have traditionally controlled the pace of litigation, only involving the court when they perceive a problem with the progress of their case. From the time a Statement of Claim is filed in the justice system, litigants work through the steps of the litigation process - from pleadings, to disclosure, to examination for discovery, through to the trial itself - at their own pace. While all cases make use of some of the court's services and resources, there is no attempt by the justice system to manage the progress of cases. [ 1 ] That has begun to change over the last twenty years, and in 1996 when the CBA Systems of Civil Justice Task Force studied the systemic problems of cost, delay and complexity the issue was considered at the national level. The Report of the Canadian Bar Association Task Force on Systems of Civil Justice ("CBA Report") [ 2 ] made a series of recommendations for "Court Supervision of the Progress of Cases [ 3 ] that have strongly influenced the exploration of case management options in Canadian jurisdictions.
The traditional approach provides flexibility to the litigants. However, the traditional system is also subject to criticisms, including several set out below.
- All cases are treated as if they are going to trial. The courts, in effect,
"reserve" the use of resources that may never be needed.
- There is no identification of cases that would benefit from early judicial
attention and no incentive to pursue early disposition.
- Counsel determine when activities, events and disposition will occur and
the court only obtains information on case status when a case is ready to be set
for trial. In some jurisdictions, there is no concluding document filed unless
the matter goes to judgment and thus the courts cannot confirm whether a matter
is concluded.
- There is no systematic control or record of the stage reached by each individual
case within that system and thus no information about what resources may be required
by each case or when. Most traditional systems do require that the court be notified
when the matter is ready to be heard, and then there is often a substantial waiting
period until the matter can be heard.
In response to such criticisms, some jurisdictions have moved away from the traditional model in which the pace of litigation is controlled by litigants and their lawyers, toward one in which that control rests with the court. These changes may be seen to occur along a continuum. Different jurisdictions will operate at different places along such a continuum, with the traditional approach at one end, the implementation of a variety of case management tools falling in between, and full caseflow management systems at the other end.
| Traditional Approach > | Case Management tools > | Caseflow Management System |
| (Controlled by litigants) | (Controlled by Courts) |
In his Report of the Ontario Courts Inquiry [ 5 ] Justice Zuber used the term "case management" in reference to a focus on managing the pace of litigation by an individual judge in an individual case, as distinct from "caseflow management" which referred to systemic management processes. The terms are used in a similar manner here. It must be noted however, that the distinction is often blurred both in the literature and in practice. In practice the two terms are closely linked and are sometimes used interchangeably [ 6 ].
Case Management
Many of the "tools" of case management have been incorporated into traditional
models over the last 20 years. Thus, lawyers continue to have the primary control
over the progress of cases, but they do so within a model that provides both litigants
and courts with tools to better manage cases through the litigation process. It
is often difficult to distinguish between processes that use tools to provide
some court management and processes that are systemic and thus manage cases from
beginning to end. Some of the tools that are indicative of some measure of court
control include:
- case management conferences (pretrial, settlement and duration conferences);
- applications to court;
- deadlines for exchange of documents;
- time limits for completion of other steps;
- dismissal or other sanctions for delay;
- status review;
- pretrial hearings;
- dispute resolution mechanisms and minitrials;
- trial booking procedures, including certificates of readiness; and
- "tracks" or "streams" for different types of litigation (which may indicate a systemic approach).
All Canadian jurisdictions use some of these mechanisms, although they may
be used somewhat differently in each jurisdiction [ 7 ].
Caseflow Management
Under a caseflow management system where there is a systemic approach to managing
cases, the court monitors progress throughout the process and deadlines are imposed
for completion of procedures, such as motions, discoveries and settlement conferences.
There are two key features of a caseflow management system - time standards and
status review. Time standards are applicable throughout the process of a case,
and status review involves a continuous review of the age and status of pending
caseload by the courts, with those cases that are not moving forward being subject
to dismissal. The CBA Report recommended that [ 8 ]
:
...every court set timelines for the overall determination of civil cases and develop suitable means by which to enforce such timelines. [and]
...every jurisdiction provide by its rules of procedure for the automatic dismissal of cases where they have not been determined within a specified period, subject to the discretion of the court to order otherwise in compelling circumstances.
Further, the Report recommended that model time guidelines be adopted for Canadian courts and the legal profession, being [ 9 ]:
...90 per cent of all cases should be settled, tried or otherwise concluded within 6 months of filing of readiness and within 12 months of the date of the case filing; 98 per cent within 9 months of filing of readiness and within 18 months of such filing; and the remainder within 12 months of filing of readiness and within 24 months of case filing; [with an allowance for] ... exceptional circumstances... [and] ...summary hearing procedures ... should be concluded within 90 days of filing.
In some jurisdictions, overall case completion dates have been adopted, indicating
that cases are to be disposed of within a specified time limit [ 10 ].
The court, through a judge or judicial officer, monitors compliance and imposes
sanctions for failure to meet deadlines. As the court knows what stage each case
has reached, court dates can be booked well in advance.
There are benefits attributed to caseflow management, applicable regardless of
the way in which the system is designed. For instance, caseflow management demands
early court and counsel attention to each case, the belief being that early triage
ensures the most appropriate treatment. One option that can then be selected is
early mediation, a common feature available in many caseflow management systems,
which is thought to make expeditious and interest based resolution much more accessible.
There are of course, also concerns, for instance the concerns expressed by legal
counsel related to their loss of control over the progress of cases.
Approaches to Caseflow Management
Caseflow management ("CFM") focuses on the movement of cases through the legal
system. Notably CFM uses key tools in a manner that provides a complete system
for controlling the pace of litigation. Flexibility in the system, such as extension
of timelines, is generally at the discretion of the court and not of litigants.
Different jurisdictions can, and do, develop unique systems to suit their needs.
Commentators have described CFM systems in varied ways, [ 11 ]
usually as appropriate to the system in operation in their jurisdiction. For the
purposes of the general discussion here, it is useful to identify three distinct
approaches, or methods, for implementing a CFM system. However, in practice there
is a great deal of overlap and blending of these approaches and no pure system
exists. All of the approaches described here have aspects that may be incorporated
into the others, and the benefits and concerns often coincide. The first approach
described here - Differentiated "tracks", or Differential Caseflow Management
("DCM") - is essentially a method for determining what time standards should be
applied to different types of cases. The second - Individual Case Management ("ICM")
- and third - Master List, or Administrative Monitoring - are descriptions of
approaches to status review, or methods that are used to monitor compliance with
time standards.
1. Differentiated "tracks" or Differential Caseflow Management (DCM)
DCM is a way of implementing specific time lines. It uses pre-established deadlines
for different types of cases, that are designed to move cases of varying complexity
through the court process within time frames appropriate to their complexity.
Deadlines are set for major case events, and there is close court supervision
(sometimes by court staff) until disposition. Jurisdictions that follow this approach
attempt to define the specific features of cases that distinguish the level of
case management required. Most DCM systems have a minimum of three tracks: complex,
simple and standard. Some jurisdictions add a category for "holding" cases, which
are not moving forward due to events such as settlement negotiations. There may
also be separate tracks for specialized matters, such as family law or commercial
litigation.
The benefits of DCM include that: event and time standards for tracks are created
to fit case requirements; tailoring of the court system to the particular case
or kind of case is more appropriate than treating all cases as if they were the
same; judicial intervention can occur as needed, reserving judicial supervision
for the more complex cases; dispute resolution is encouraged at the earliest possible
time; and, the number of interlocutory motions is usually reduced, allowing trial
dates to be more certain.
Concerns about DCM include questions about how cases should be assigned to a track;
whether it is necessary to have specific deadlines for each type of case; and
how much judicial involvement is necessary at the early stage. Some DCM systems
have been criticized for being "lockstep" and inflexible [ 12 ]
.
2. Individual Case Management (ICM)
The ICM approach is known by various names: "Judicial Monitoring", "Individual
List", "Single Judge", "Single Docket" or "Individual Docket". ICM involves continuous
control by a judge, who personally monitors each case on an ad hoc basis
and ensures that the case moves at an appropriate pace. Support for this approach
is found in research that indicates that early judicial involvement in a case
will increase the likelihood of settlement.
Positive features of this approach to caseflow management include familiarity
of the assigned judge with individual cases, earlier settlements, and less delay
overall. Commentators have followed the results of the introduction of caseflow
management in jurisdictions such as Australia and found the ICM approach to have
significant benefits including [ 13 ]:
- saving of time, money and courtroom space;
- earlier resolution of disputes;
- producing just results promptly in a memory-dependant system;
- increasing accessibility to the court system;
- producing reliable and certain trial dates, with few adjournments; and
- more effective use of judicial resources.
Concerns include whether or not there are adequate judicial resources to carry
out the monitoring (for instance, because ICM is expensive it should be reserved
for complex cases) and how to ensure the availability of the assigned judge when
the case needs attention.
ICM is the dominant American approach to caseflow management, and has been extensively
reviewed in that context. Some of the observations and criticisms of Judith Resnik,
a noted American scholar, include the following [ 14 ]:
- to be effective, caseflow management must be compulsory;
- judicial case management is a reorientation of the judicial role, and the skill of judges in the management role has been questioned by some;
- pretrial conferences as a venue for settlement, without sworn evidence, are criticized by some;
- judicial promotion of settlement at pretrial conferences is controversial (particularly where the pretrial judge may also be the trial judge);
- "big" (protracted, complex) cases have produced the necessity for management and set the agenda for the entire universe of cases, including control by the judiciary, definition of issues, time-tabling, forecasting trial time, and use of expert evidence;
- individual judges' experiences and preferences have made their way into custom, rules and statutes;
- the informality of the proceedings (closed-door, in many instances) leave some lawyers or litigants out of the process;
- responsibility for raising settlement moves from lawyers to judges; and
- judicial case management saves court time but at the expense of extra lawyer work hours (and thus increased cost to the client).
3. Master List, or Administrative Monitoring (usually called Master List)
With Master List, deadlines are monitored by court staff and a file is referred
to a judge only if a problem arises. Master List tends to require fewer judicial
resources, as a judge only becomes involved if a case does not meet established
timelines. Monitoring is achieved by requiring the parties to report to the court
(often a Master or Registrar) at fixed milestones, enabling the court to exercise
routine and structured control over timelines. All cases are controlled by the
court registry and are assigned to different judges or judicial officers at different
times for different purposes. When an event relating to a case has been dealt
with, it is returned to the pool of cases to await the next event and to be assigned
again, not usually to the same judge or judicial officer.
The advantages of Master List are that judicial resources are reserved to judicial
functions, with court staff carrying out monitoring functions. The litigants and
lawyers maintain a great deal of responsibility for the progress of cases, while
the justice system has an "overall picture" of what is in the system and what
cases are likely to require court resources in the near future. Positive comments
by practising lawyers include that this approach allows qualified and committed
court staff or Masters to become familiar with particular cases, and that it leads
from commencement to trial expeditiously and inexpensively [ 15 ].
Other advantages include fixed trial dates, case conferences, and the ability
to set timetables for all steps in the proceeding.
Concerns about Master List include the availability of court resources for monitoring,
unfamiliarity of different judges with steps previously taken on the file, delay
due to lack of judicial resources when a case needs attention, and the complexity
of administering the system. Some legal practitioners have argued that: it would
be more useful to have one judge familiar with an action from beginning to end;
judges are converted from adjudicators into referees; the onus is put on the system
instead of on lawyers to manage their practices; cases are dealt with piecemeal
and only in reaction to foul-ups or contentious matters; and, judges have too
many cases and not enough case responsibility [ 16 ].
The Canadian Landscape
Several Canadian court systems have reviewed options for managing the flow of
cases through the justice system; some have implemented caseflow systems, and
most continue to study the issue. Ontario studied case and caseflow management
in detail [ 17 ]. The Civil
Justice Review, First Report recommended that the "modern civil justice system
should operate under the rubric of an overall caseflow management system [ 18 ].
Several key concepts emerged from the Ontario Report:
- caseflow management (CFM) entails a significant shift in the cultural mind set of judges, lawyers, and court staff;
- the traditional method of proceeding with a lawsuit has become ineffective in delivering civil justice, given rising costs and unacceptable delays;
- CFM involves the transfer of principal responsibility for the management of the pace of litigation to the courts; and
- CFM involves the establishment of reasonable, but firm, time limits and the adherence to them.
Similarly, the CBA Report was a major impetus for reform in Canada. The
purpose of the Task Force was to enquire into the state of the civil justice systems
across Canada and to develop strategies and mechanisms to meet the major concerns
about lack of accessibility to the legal system, perceived by "many Canadians
[who] feel that they cannot exercise their rights effectively because using the
civil justice s ystem takes too long, is too expensive, or is too difficult to
understand. [ 19 ]" The CBA
Report recommended that all Canadian courts
... have a caseflow management system to provide for early court intervention in the definition of issues and for the supervision of the progress of cases. [... that each court design its own system, and]
... at a minimum, systems should provide for (a) early court intervention by designated and trained individuals in all cases; (b) the establishment, monitoring and enforcement of timelines; (c) the screening of cases for appropriate use of non-binding dispute resolution processes; and (d) reliable and realistic fixed trial dates [ 20 ].
Three jurisdictions have adopted formal caseflow management systems: Ontario,
Nova Scotia and the Federal Court of Canada. Ontario has continued to modify its
systems as results from pilot projects become available. Nova Scotia has retreated
from the broad-based system that was implemented in their pilot project but has
retained several aspects of CFM. Quebec has introduced reforms, coming into force
in January 2003, that will implement a caseflow management system. All other Canadian
jurisdictions use several of the case management tools outlined above, but have
not adopted full caseflow management systems. Please refer to the table that follows
for more detail.
Considerations in Choosing a Case Management Approach
What is obvious in looking at the rules across Canada, is that each jurisdiction
will fashion mechanisms or approaches to fit its unique needs, and will no doubt
continue to explore options for managing litigation. The collection of empirical
data that assesses the impact of various options will go a long way in making
this exploration more fruitful. Guidance can also be obtained from a seminal paper
delivered by The Honourable N. Douglas Coo, now Justice Supernumerary, Superior
Court of Justice in Ontario, a pioneering expert in the application of CFM principles.
The seven factors to consider, as set out below, are based on that article [ 21 ]
:
- A jurisdiction should first gather statistical information to assess whether
or not there is a problem with delay or access to justice. Each jurisdiction must
review its own system to decide whether CFM would be beneficial, or whether additional
case management "tools" can or should be introduced into an existing system.
- Both the judiciary and the Bar should be involved in considering the proposed
changes and indicate support for the type of case management chosen before it
will be effective. CFM does entail a change of culture, and cannot be imposed
without Bench and Bar leadership. Changes or additions to existing case management
techniques and tools should also be introduced through local bar associations
and in continuing legal education programs for lawyers and judges.
- Administrative support must be available in order to support the case management
system chosen.
- Government participation is necessary to ensure that judicial resources and
other resources, including technology, are made available.
- Each case management system must be designed for a particular jurisdiction,
taking into account local needs. Research and materials should be reviewed to
help assess which type of case management will be effective in that jurisdiction.
- Once a system is settled on, there is a need to consult widely within the
jurisdiction to be sure that the solution will work. Most jurisdictions use pilot
projects in limited areas as testing grounds before introducing system-wide changes.
- The final step is implementation of the changes, including necessary amendments
to Rules, practice directions and forms.
Comparison of Caseflow Management Systems and Case Management Rules in Canadian Jurisdictions [ 22 ]
| JURISDICTION | CASE FLOW MANAGEMENT | ||
| Federal Court* | Pre-Trial Conference | -requisition may be served by either party when ready for trial | R 258-268 |
| Status Review | -mandatory status review for all cases | R 380-382 | |
| Specially Managed Proceedings | -may appoint case management judge for specially managed cases | R 383-385 | |
| Simplified Action | -by agreement, order of the court, or for a claim not exceeding $50,000 | R 292-299 | |
| Dispute Resolution | -the court may refer any issue or proceeding to dispute resolution | R 386-391 | |
| Trial Management Conference | -may be held before or during a trial by the trial judge or prothonotary | R 270 |
| Ontario* | Case Management | -applies to proceedings in Ottawa and Toronto (also in Windsor as of 12/30/02) | R 77 |
| -the plaintiff shall choose either the fast or standard track unless the court orders otherwise | |||
| - Case Conference | -may be initiated by either party or the court at any time in the case | ||
| - Trial Management Conference | -may be initiated by either party or the court, in any proceeding | ||
| - Settlement Conference | -mandatory, scheduled by registrar on 45 days' notice - to be held 150 days after first defence for fast track; 240 days after first defence for standard track | ||
| Pre-Trial Conference | -for cases not subject to R 77; may be initiated by either party or the court, in any proceeding | R 50 | |
| Simplified Procedure | -mandatory in actions not exceeding $50,000; does not apply to R 77 cases, class proceedings or construction lien cases | R 76 | |
| -at the plaintiff's option in all other cases, provided defendant does not object | |||
| Mediation | -mandatory for R 77 case managed actions (not applications) in Ottawa and Toronto (also in Windsor as of (12/30/02), and for R 76 cases in Ottawa | R 24.1 | |
| Family Court Case Management | -applies to proceedings governed by the Family Law Rules | R 39-40 (Family Court Rules) | |
| -also in Toronto and Windsor under specialized rules | Toronto/Essex Case Management Rules |
| Nova Scotia* | Halifax Case Management | -applies to proceedings commenced on or after 04/01/00 | R 68 / Practice Memorandum 27 |
| - Fast Process | -may be selected by the plaintiff with approval of the court on appearance day | ||
| - Complex Cases | -the court may order complex proceedings to management by a judge | ||
| - Settlement Conference | -may be offered if requested by a party and other parties consent | ||
| Notice to Proceed / General List | -an action on the General List for more than 3 years will be dismissed unless the parties indicate an intention to proceed | R 28 | |
| Pre-Trial Conference | -may be initiated by either party or the court, in any proceeding | R 26 |
| Quebec* | Case Management | - the parties must negotiate an agreement as to the conduct of the proceeding | Art. 151.1 - 151.3 (An Act to reform the Code of civil procedure, R.S.Q. 2002, c. 7 - [ARCCP] ) |
| - the agreement is binding on the parties and may be modified insofar as it does not contravene the 180-day peremptory time limit for inscription of a case for proof and hearing | |||
| Special Case Management | - the chief justice or judge may order special case management in complex proceedings or where the 180-day peremptory time limit is extended | Art. 151.11 - 151.13 (ARCCP) | |
| Case Management - district of Quebec | - a judge becomes responsible for all lengthy cases (5 or more days) | R 10, 13 & 14 (Superior Court Rules - district of Quebec) | |
| -if a case is inactive for a long time, a judge may confer with the parties | |||
| Settlement Conference | - may be initiated by either party or the court, in any proceeding | Art. 151.14 - 151.23 (ARCCP) | |
| Pre-Trial Conference | - a judge will determine which cases require a pre-trial conference | R 20 (Superior Court Rules) | |
| - a judge may transform a settlement conference into a pre-trial conference | Art. 151.23 (ARCCP) | ||
| - may be initiated by either party or a judge | Art. 279 (Code of Civil Procedure)Art. 151.13 (ARCCP) | ||
| Accelerated Procedure | - either party to the action may apply to the court for accelerated procedure | R 27a. (Court of Appeal Rules) | |
| Practice Division | - the chief justice will distribute cases within the sections of the Practice Division | R 15 (Superior Court Rules - district of Montreal) / R 36 (Court of Quebec Rules) | |
| Mediation | - the court may recommend mediation | Art. 151.6 (ARCCP) | |
| - in actions involving small claims less than $7000, the clerk will inform the parties that they may submit their dispute to mediation | Art. 973 (ARCCP) | ||
| - the parties in dispute regarding certain interests of their children must attend a mediation information session before their application is heard by the court | Art. 814.2 - 813-14 (Code of Civil Procedure) |
| JURISDICTION | CASE MANAGEMENT TOOLS | APPLICATION | RULE |
| Tax Court | Pre-Hearing Conference | -may be initiated by either party or the court, in any appeal set down for hearing | R 126 |
| British Columbia | Case Management | -mandatory for civil trials 20 days or more (if less than 20 days, only available for actions showing a need for case management) | Practice Direction - 11/20/98 |
| Pre-Trial Conference | -mandatory for civil trials 4-19 days or jury/priority trial less than 20 days | R 35 | |
| - Mini-trial / Settlement Conference | -by order of judge or master | R 35(5) / R 35(6) | |
| Fast Track Litigation | -complete trial in 2 days | R 66 | |
| Pre-Hearing Conference | -may be used in any action in the Court of Appeal | B.C.C.A. - R 66 | |
| Mediation | -once the Notice to Mediate process is initiated by a party, a mediation session is mandatory in most civil non-family actions in the Supreme Court | B.C. Reg. 152/99 B.C. Reg. 127/98 |
|
| -a court mediation program operates in four small claims registries | Small Claims Practice Directions | ||
| Judicial Case Conference | -to be held before any notice of motion or affidavit in support of interlocutory action is delivered for all family matters in the Supreme Court | R 60E | |
| Settlement Conference | -mandatory for all cases in Small Claims Court | R 7 (Small Claims Rules) | |
| Case Conference | -a judge may order a family case conference | R 7 (Family Court Rules) | |
| Trial Preparation Conference | -may be held if a trial is necessary; set by judge | R 8 (Family Court Rules) |
| Alberta | Case Management | -shall be used for a very long trial (25 or more days) | Practice Note 1 / R 219.1 |
| -may be used in any action if it would promote efficient resolution | |||
| - Scheduling / Duration Conference | -shall be convened by the case management judge in a very long trial action | Practice Note 1 (s.41) | |
| - Judicial Dispute Resolution | -the case management judge may encourage a mini-trial in any action | Practice Note 1 (s.13) | |
| Pre-Trial Conference | -may be used in any action | Practice Note 3 / R 219.1 | |
| Mediation | -the parties may request, or the court or a mediation co-ordinator may refer, to mediation | Mediation Rules | |
| Streamlined Procedure | -by agreement or order of the court for a claim not exceeding $75,000 | R 659-673 |
| Saskatchewan | Pre-Trial Conference | -mandatory before setting a proceeding down for trial | R 191-192/Practice Directive 4 |
| -in a trial of one day or less it is not ordered unless the registrar feels there is a strong likelihood of settlement or that there is some other special reason | |||
| Simplified Procedure | -mandatory in actions not exceeding $50,000 | R 477-489/Practice Directive 8 | |
| -at the plaintiff's option in all other cases | |||
| Mediation | -mandatory after the close of pleadings in all non family law civil proceedings | s. 42-44 (Queen's Bench Act) | |
| -s. 42 only applies in Prince Albert, Regina, Saskatoon and Swift Current | s. 1,2 &5-7 (Queen's Bench Reg.) |
| Manitoba | Pre-Trial Conference | -will be required in all cases, unless otherwise ordered by a judge | R 48.01, 50 |
| -in family proceedings it may be initiated at any time by either party or the court | R 70.17 | ||
| Expedited Trial | -where summary judgment is dismissed, or on motion of either party, a judge may order an expedited trial | R 20 | |
| Expedited Action | -mandatory for actions not exceeding $20,000, also by agreement or court order | R 20A | |
| Judicially Assisted Dispute Resolution | -judicially assisted dispute resolution may be held upon request of all parties | Notice to Profession - 01/98 | |
| Case Management | -mandatory for Court of Appeal hearings of more than one day | Man.C.A. - R 36 |
| New Brunswick | Pre-Trial Conference | -may be initiated by either party or the court, in any action ready for trial | R 50 |
| - Settlement Conference | -may be held at any time |
| Prince Edward Island | Case Management | -a one track system has appeared to work well in Prince Edward Island | Practice Note 4-5 |
| Pre-Trial Conference | -may be initiated by either party or the court, in any proceeding | R 50 | |
| Simplified Procedure | -mandatory in actions under $25,000, at the plaintiff's option in other cases | R 75 | |
| Mediation | -the court may appoint a mediator in any matter under the Family Law Act | s. 3 (Family Law Act) | |
| Streamlining - Commercial Dockets | -counsel are encouraged to streamline cases, wherever possible | Practice Note 32 |
| Newfoundland | Pre-Trial/Pre-Hearing Conference | -may be initiated by either party or the court at any time | R 39 |
| - Mini-trial / Settlement Conference | -may be ordered in the pre-trial conference | ||
| Expedited Trial | -either party to the action may apply to the court for an expedited trial in a claim not exceeding $15,000 or where it would not cause injustice to the other party | R 17A | |
| Mediation | -the court may appoint a mediator in any matter under the Family Law Act | s. 4 (Family Law Act) |
| Nunavut | (Refer to NWT Rules of Court pending implementation of Nunavut rules, expected in 2002-2003 ) | ||
| Pre-Trial Conference | -will be required in all cases, once trial date is set & Counsel has been assigned | Practice Directive #6 - 12/13/01 | |
| Settlement Conference | -counsel can initiate this if they feel it would be useful in resolving the case | ||
| Northwest Territories | Case Management Conferences | -may be initiated by either party or the court, in any proceeding | R 281-292 |
| - Mini-trial | -may be directed by the case management judge |
| Yukon | (Refer to British Columbia Rules of Court) |
* Doris I. Wilson, QC, has practised law in Alberta for 22 years, and is currently Special Counsel to the Alberta Law Reform Institute’s (ALRI) Rules of Court Project. She would like to thank: Jason Golbey, a student with ALRI, for his assistance with background research for this paper; Natalie Salvalaggio, a student with the Canadian Forum on Civil Justice, for her research and development of the accompanying table; and the editors of this Newsletter for their guidance and contributions to the development of this discussion.
The Alberta Law Reform Institute’s (“ALRI”) Rules of Court Project has been considering methods of managing litigation. As part of a consultative process, it has heard from lawyers, judges and members of the public about their experiences and concerns. ALRI invites comments about litigation management in your jurisdiction at: http://www.law.ualberta.ca/alri/feedback/pubcnslt_abrules.html
Endnotes
- This paper is limited to a discussion of civil cases, and
does not apply to criminal law. Return to Article
- Report of the Canadian Bar Association Task Force on
Systems of Civil Justice (Ottawa: The Canadian Bar Association, 1996) [hereinafter
CBA Report]. The CBA Report was the first national survey of
case management in Canada. It built on the work done in The Ontario Joint Committee
on Court Reform's Case Management and Case Flow (Ontario) (Toronto: The
Ontario Joint Committee on Court Reform, 1989), and the Ontario Civil Justice
Review, First Report, infra note 18. Return to Article
- CBA Report, ibid. recommendations 4-12 at 34-40.
Return to Article
- See G. Pohlkamp, Caseflow Management: A Delay Reduction
Tool: An Issue Paper Prepared for the CBA National Systems of Civil Justice Task
Force (Ottawa: Canadian Bar Association, 1996) at 2 [hereinafter Caseflow
Management]. Return to Article
- Ontario, Ministry of the Attorney General, Report of the
Ontario Courts Inquiry. Commissioner: The Honourable Thomas G. Zuber (Toronto:
Queen's Printer for Ontario, 1987). Return to Article
- In Canada different jurisdictions use different terminology
to refer to these concepts. This is especially true in French, which makes translation
awkward. "Case management" may also be translated to "gestion de l'instance",
"gestion judiciaire de l'instance" or even "gestion des dossiers judiciaires"
(in use in NWT); and "caseflow management" may be translated to "gestion administrative
des dossiers". Return to Article
- For a review of the use of traditional case management
procedures, see Civil Justice Project: The Use of Time Limits and Notification
in Civil Case Management (Ottawa: Canadian Centre for Justice Statistics,
1999). Return to Article
- CBA Report, supra note 2 recommendations 9-10
at 39. Return to Article
- Ibid., para. 3.4.2. Return
to Article
- For example, many jurisdictions in the United States have
set such time lines. The Federal Court of Australia has a goal of disposing of
98% of cases within 18 months; See Managing Justice: A Review of the Federal
Civil Justice System: Report 89 (Sydney: The Australian Law Reform Commission,
2000) online:
(last modified: 2000) [hereinafter Managing Justice]. Return to Article
- See H. Balke, & M. Solomon, "Case Differentiation: an
approach to individualized case management" (1989) 73 Judicature 17 [hereinafter
"Case Differentiation"]; Caseflow Management, supra note 4; Managing
Justice, ibid. Return to Article
- In the Alberta Law Reform Institute's Rules of Court Project
legal consultation process there has been some criticism levelled at the Federal
Court system for its "lockstep" nature and inflexibility, while other lawyers
have referred to the Federal Court system as providing a useful structure. Please
see the ALRI website at
for additional detail. Return to Article
- See CBA Report, supra note 2 at 6-7; Managing
Justice, supra note 10 at para. 6.16: "Practitioners appearing in the Federal
Court were emphatic that the advantage of IDS [Individual Docket System] was the
continuing, informed oversight of the judge who was to determine the case. This
was seen as a way to 'cut to the issues' and reduce inappropriate tactical play." Return
to Article
- J. Resnik, "Changing Practices, Changing Rules: Judicial
and Congressional Rulemaking on Civil Juries, Civil Justice, and Civil Judging"
(1997) 49 Ala. L. Rev. 133, online: Alabama Law Review website
(last modified: 2001) Return to Article
- See K. R. Aalto, "Case Management: The Way of the Future"
(1999) 10:7 The Advocates' Brief 1; R. G. Slaght, "Case Management?" (1998) 10:3
The Advocate's Brief 1; S. Stanton & S. Wilson, "You Might Like to Know
..." (1997) 8:8 The Advocates' Brief 5; R. G. Slaght, "Comment on the
Case Management System Proposal" (1996) 7:7 The Advocates' Brief 7; (The
Advocates' Brief is a publication of The Advocates' Society of Ontario).
See also B. Garland, "Changes and Challenges in the Case Management System" in
Civil Litigation (Ottawa: County of Carleton Law Association, 1998);
"Case Differentiation", supra note 11; Managing Justice, supra
note 10. Return to Article
- Ibid. Return to Article
- See generally Ontario, Ministry of the Attorney General,
Fact Sheet: Civil Case Management: Rule 77 (Toronto: Queen's Printer
for Ontario, 2001) online: Attorney General of Ontario website
(last modified: 2 February 2001). Return to Article
- Ontario, Civil Justice Review, First Report (Toronto:
Ontario Civil Justice Review, 1995) c.13 at 169. Return
to Article
- CBA Report, supra note 2, at 11. Return
to Article
- CBA Report, supra note 2, recommendations 4-5
at 36. Return to Article
- The Hon. N. D. Coo, "Practicalities of the Introduction
of Case Management" in Access to Justice: Questions of Access; Questions of
Cost (Toronto: Canadian Bar Association Convention, August 1994) [unpublished,
archived at ALRI]. Return to Article
- What is reported here is an account of the Rules in each
jurisdiction. It may be the case that the way things work in practice or have
developed by custom, may not be exactly as described in the Rules of Court or
Practice Directions. Return to Article