Inventory of Reforms

Toronto Case Management (Rule 78)

Year:
2005

Description:
Rule 78 was developed to mitigate the difficulties arising from the application of the case management Rule 77 in Toronto.

Status:
Pilot project (January 2005 – May 2008) extended to December 31, 2010

Jurisdiction:
Ontario

Court:
Superior Court of Justice (Toronto)

Body Responsible:
Civil Rules Committee

Timeline:
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

Publications:
Ontario Civil Rules Procedure
Regional Senior Justice Warren Winkler
Ontario Superior Court of Justice, 2005
Civil Rules Committee (Court of Appeal for Ontario, October 2008)
Civil Case Management under Rule 78 – Ministry of the Attorney General
Evaluation of Civil Case Management in the Toronto Region 2008

Development:
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.

Purpose:
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.

Description of Reforms:
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)].

Criteria and Methods of Evaluation:
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)

Results:
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

Revision History:
This summary was last reviewed in Apr 09, 2013