canadian judicial council, access to justice: report on selected reform initiatives in canada (june...

Canadian Judicial Council, Access to Justice: Report on Selected Reform Initiatives in Canada (June 2008)

About the Canadian Judicial CouncilThe Canadian Judicial Council is a federal body created

under the Judges Act with the mandate to promote efficiency, uniformity, and accountability, and to improve the quality of judicial service in the superior courts of Canada.

The Council is also mandated to review any complaint or allegation against a superior court judge.

The Council is chaired by the Chief Justice of Canada, currently the Right Honourable Beverley McLachlin. There are 38 other Council members, who are the chief justices and associate chief justices of Canada’s superior courts, the senior judges of the territorial courts, and the Chief Justice of the Court Martial Appeal Court of Canada.

About the ReportThe Sub-committee on Access to Justice Committee

was concerned with access to justice, and in particular with mounting costs in the justice system.

They set about to develop a focused inventory of reforms which are designed to promote effective and affordable justice.

The committee requested that the Canadian Forum on Civil Justice (the Forum) conduct research to develop an inventory of Canadian civil justice reform initiatives in the following five agreed upon categories:

1. Proportionality

In terms of the research, the scope of the subject was defined as procedural rules which: a) explicitly impose an obligation on the parties or the judge that proceedings be restricted to what is proportional to the monetary amount being claimed or the importance of a non-monetary claim, (eg. Québec art. 4.2) or b) mandate expedited litigation procedures based on the amount of money at issue (eg. BC’s Rule 68).

Trends Relating to Proportionality While rules of civil procedure often state

an intention of providing for cost effective proceedings, recent amendments have begun to more clearly delineate the requirement that procedure be closely tied to the importance and complexity of the issue.

Noted ExamplesBC Justice Review Task Force Civil Justice

Reform Working Group Draft from 2007Ontario Civil Justice Reform Project report mechanisms to ensure proportionality -

automatic expedited tracks for cases under a monetary thresholds

Time based expedited tracksRecent proposed rules to move away from

dollar –based triggers

2. Expertsa) Imposing an obligation on judges to play a more

active role in assisting parties to limit the costs and delay associated with the use of experts.

b) Limiting the number of experts which can be called. c) Requiring agreement on a shared expert.d) Mandating full disclosure of expert reports within a

reasonable time-frame and imposing a continuous obligation to disclose reports that become available at a later time.

e) Removing any requirements for an expert to attend trial if a full report is submitted.

f) Imposing costs on a party that requires the other party’s expert to testify at trial unnecessarily, or unreasonably refuses to accept certain experts.

Recent Trendsintroduction of an expedited litigation track changes to the standard litigation track stipulation of time limits for the submission of

expert reports limitation on the number of experts Allowance of court appointed experts or joint

experts Provisions allowing the court to order

conflicting experts to meet and attempt to reconcile their differences

3. Point of Entry Assistance The research into point of entry assistance identified programs with a physical presence in or near a courthouse which are designed for and available to persons entering the civil justice system. These programs offer: a) information about dispute resolution options in a multi-option justice system, such as community mediation and court-annexed mediation, and b) referrals to available resources for obtaining legal advice and information, taken from a well-developed inventory of resources. (These resources could include public legal education and information programs, legal aid, duty counsel, legal clinics, pro bono services, and the private Bar.)

Recent TrendsAssisting unrepresented family litigants –

creation of Family Law Information Centres creation of Law Information Centres creation of an information and referral resource -

single point of entry for the family justice system plans exist to broaden the mandate of justice

service centres to cover all civil matters - providing parties with legal information, helping parties in deciding whether or not to commence a legal action and to access non-legal community resources

An exampleThe Ontario Civil Justice Reform Project recommended the establishment of self-help centres:

• Clear-language information and instruction on various Superior Court procedures. • Referral information to existing programs and services. • Assistance with completion of forms through the use of lawyer volunteers, online document assembly software or a combination of both. • Summary advice and duty counsel services by volunteer lawyers, focusing on identification of legal issues and assessment of legal merits. • Representation at hearings and settlement conferences by volunteer lawyers

4. Discovery The purpose is to reduce cost and delay by means such as: a) Limiting the time frame in which discovery takes place. b) Narrowing the scope and standard of relevance in both oral and document discovery. c) Capping the number of discovery events that can be undertaken by the parties. d) Expediting the scheduling of discovery. e) Eliminating oral discovery in expedited or simplified procedure rules. f) Penalizing duplicative or cumulative discovery. g) Introducing a mandatory discovery conference between counsel and/or before a judge. h) Creating a more effective process for resolving conflicts as they arise in the discovery process, through case management and other civil procedural rule reform.

Recent Trendsrules which place time limits on discovery and even

prohibit discovery outright for simplified procedure cases. statement of a principle encouraging judges to intervene

with discovery if it appears to be “abusive, vexatious or futile.”

A requirement for the exchange of witness lists has been implemented in several expedited litigation procedures

Ontario: prior to hearing motions relating to unanswered undertakings and refusals, a form must be completed by both parties setting out the basis of the refusal and why the information is relevant to the issues in the action

Limiting interrogatories (posing of questions)Narrowing the scope of discovery and standard of

document disclosure

5. Case-flow ManagementThere is confusion over terminology but for purposes of the Inventory Reforms, case-flow management refers to all practices relating to the management of cases, regardless of where they fall along the continuum of case and case-flow management practices.

With respect to the study, case-flow management refers to the systematic management process by which a court supervises the progress of its cases from beginning to end. This may include early court intervention in the definition of issues, fixing deadlines and assessing the complexity and value of a case.

Types of case-flow management systems include:Differential Case-flow Management Individual Case Management Master List

Recent TrendsNova Scotia’s Halifax Caseflow Management

Project Québec’s 2002 Code of Civil Procedure revisions Ontario’s Rule 77 and 78The BC Civil Justice Reform Working Group

suggested that proposed Case Planning Conferences: amendments to Rule 68

Conclusion of IntroductionThe primary goal of civil justice reform is the

just resolution of disputes through a fair but swift process at a reasonable expense and the categories of reform outlined in the CJC database take this into consideration.

September 2004 – Federal Court Rules Committee released a discussion paper which proposed the amendments to the Federal Court Rules, 1998 (The Rules) with regard to expert evidence. These amendments would make the admissibility of the evidence of expert witnesses conditional upon the service of affidavits, setting out the proposed evidence of the experts prior to the pre-trial conference.

To ensure that the parties are ready for trial. Such readiness facilitate the setting of earlier trial dates and reduce the delay associated with expert evidence.

To give the parties sufficient time before the trial to examine and respond to expert evidence.

Full and candid settlement discussion is only possible at the pre-trial conference stage if all expert reports are available.

The expense inherent in obtaining expert reports may assist in drawing to the attention of litigants the benefits of settlement at an earlier stage in the process.

There is no requirement to prepare the affidavits of expert witnesses for the pre-trial conference R. 279(b) &281.

However, any affidavits in existence at the time of the pre-trial conference should be made available to the Court and to other parties R. 258 (4).

Admissibility of expert evidence conditional upon service at some stated time before trial, e.g. The BC Supreme Court Rules, Alberta Rules of Court, and Nova Scotia Civil procedure Rules

Admissibility of expert evidence conditional upon service at some stated time before trial- Expert reports existing at pre-trial conference to be available, e.g. Ontario, New Brunswick, Newfoundland and Prince Edward Island.

Admissibility of expert evidence conditional upon service of that expert witness’s report before pre trial conference, e.g. Manitoba, Saskatchewan and Quebec

Rule 258 (4) & (5)- Requires expert’s Affidavit or statement before pre- trial conference.

Rule 262- The party should file a pre-trial conference memoranda within 30 days after being served with the requisition.

Rule 265- Service of expert’s affidavit or statement

Rule 279(b) & 281- Admissibility of expert’s evidence at the trial

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.

Recognizing the duty of expert witnesses Streamlining the process of qualifying expert

witnesses The content of expert reports Requiring expert witnesses to confer in advance

of the trial Single joint experts Application of the Rules governing expert

witnesses to applications Status of treating physicians The need for cross-examination Concurrent expert evidence Limiting the number of experts

1999 Ontario Mandatory Mediation(Rule 24.1 & 75.1)

Tina Motavalli

What is mediation?

Mediation is a way for people to settle disputes or lawsuits outside of court. In mediation, a neutral third party - the mediator - helps the disputing parties look for a solution that works for them.

Mediators do not decide cases or impose settlements. The mediator's role is to help the people involved in a dispute to communicate and negotiate with each other in a constructive manner, to gain a better understanding of the interests of all parties, and to find a resolution based on common understanding and mutual agreement.

The purpose of mediation is not to determine who wins and who loses, but to develop creative solutions to disputes in a way that is not possible at a trial.

What is the Mandatory Mediation Program?

The Mandatory Mediation Program is a program designed to help parties involved in civil litigation and estates matters settle their cases early in the litigation process to save time and money.

The Mandatory Mediation Program applies in Toronto, Ottawa and Windsor to certain civil actions under rule 24.1 of the Rules of Civil Procedure and to contested estates, trusts and substitute decision matters under rule 75.1 of the Rules of Civil Procedure.

Rule 24.1- Rule 75.1

• 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 pre-trial 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.

FeesRule 24.1 & Rule 75.1:The mediator’s fees for the mandatory mediation session cover the following

services: 1. One-half hour of preparation time for each party ( Rule 24.1: 2 plaintiff

and 2 defendants, Rule 75.1: one estate trustee) 2. Up to three hours of actual mediation.

Number of Parties Minimum Fees

2 $600 plus GST

3 $675 plus GST

4 $750 plus GST

5 or more $825 plus GST

How does Rule 24.1 work?

• 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.

How does Rule 75.1 work?• 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.

Evaluation of the OMMP(Rule 24.1) Robert G. Hann and Carl Baar

The evaluation addresses a wide range of issues of interest to the Civil Rules Committee, to the judiciary, to governmental policy makers, to the general public --and to lawyers, mediators, court administrators, litigants and other stakeholders involved in the day to day operation of the court and litigation processes.

However, the 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?

Key Findings• 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.

Key Recommendations

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.

Question

Why do you think other provinces in Canada has not adapted this mediation culture?

Family Mediation Practicum Project (FMPP)

• Pilot project: January 2004 in New Westminster, British Columbia

• Purpose: to enable inexperienced family mediators to gain hands-on experience and to provide quality mediation services to family clients in a safe environment

Four Objectives• 1)To give mediators practical experience in mediating family

disputes by providing a practicum in which trained, but inexperienced, mediators practice under the supervision of senior mediators.

• 2) To give practicum mediators the experience necessary to determine appropriate mediation processes, and employ skills and strategies to address the unique dynamics that characterize separation and divorce.

• 3) To ensure that the parties opting for services through the practicum project receive high quality mediation services in a safe environment.

• 4) To promote collaboration with other family justice practitioners in the pilot community in providing mediation as one of a range of dispute resolution options for families.

Evaluation from 5 Angles Showed How Objectives Were Met

1) Case and administrative files2) Survey of mediation clients3) Telephone interviews with practicum

graduates4) Focus group meeting with mentors5) Interviews with key respondents and subject

matter experts

Objectives Met• The enrollment rate for mediators was met at 12 mediators.• In 2004, there were 213 potential clients, and 33 cases initiated.• Practicum mediators reported exceptionally high satisfaction ratings with the

project, and their mentors were pleased that the practicum mediators were using appropriate strategies and skills to manage a variety of complicated cases.

• Clients who completed the mediation process expressed high satisfaction rates.

• Collaboration had been achieved through outreach, advertisement, meetings and consultations with Legal Services Society, Family Justice Centers, individual judges, and justices of the Provincial Family and Supreme Courts.

• The sources of referral was 61% from the Legal Services Society,10% from Family Justice Centres, 3% by court registries or judges of the Supreme or Family Court, and a small percentage from referrals by former clients of the project. There was another 8% of participants who individually approached the program through publications and advertisements.

3 Policy Changes

1) Fast track

2) Three-session limit

3) Draft Memorandum of Understanding

3 Policy Changes

Recommendations

1) The expectations for the mediators need to be formally communicated with the mentors at the beginning of the program.

2) More in-depth cost analysis is needed. For example, one potential project is to show the comparison between the FMPP and other services such as court, and other mediation services.

3) Relocation of site to or near a courthouse.

Discussion

• Recommendation #3 is to relocate the site to or near a courthouse. Do you think this recommendation is useful to provide point-of-entry assistance and attract more clients to use the service?

Point of Entry Assistance

Point of entry assistance identified programs with a physical presence in or near a courthouse which are designed for and available to persons entering the civil justice system.

These programs offer: Information about dispute resolution options in a multi-

option justice system, such as community mediation and court-annexed mediation

Referrals to available resources for obtaining legal

advice and information. (These resources could include public legal education and information programs, legal aid, duty counsel, legal clinics, pro bono services, and the private Bar.)

Trends Relating to Point of Entry Assistance

Assisting unrepresented family litigants has been a common concern for several years, with several provinces providing counselling through intake services.

Family Law Information Centres (FLICs) have been created to provide information, mediation services and referrals to people involved in family law matters.

Recently, work has been done to expand the scope and availability of these sorts of services, and extend them to both civil and family matters.

Point of Entry Assistance In 2003, British Columbia launched a mapping

study to determine “services, gaps, issues and needs” for self represented litigants in the province. Based on this needs assessment, a Self Help Information Centre was opened as a pilot project in the Vancouver Court House in 2005.

A mapping project modelled on the BC study was undertaken in Alberta, and used as the foundation for the creation of Law Information Centres located in three locations to serve “as a centralized place for information that can coordinate referrals to existing services which are currently 'disconnected and fragmented.’”

Civil Justice Reform Resources

The functions of this resource will be to: Coordinate and promote existing legal-related

services Provide legal information and appropriate

referrals to other services Establish a multidisciplinary assessment/triage

service to diagnose the problem and provide referrals to appropriate services

Provide access to legal advice and representation if needed through a clinic model

The Ontario Civil Justice Reform Project recommendations

This model relies on pro bono services to provide:

Clear-language information and instruction on various Superior Court procedures.

Referral information to existing programs and services.

Assistance with completion of forms through the use of lawyer volunteers.

Representation at hearings and settlement conferences by volunteer lawyers.

Newfoundland Unified Family Court Services — Intake 2007

The purpose of intake is to: Identify the issues involved Make sure the required information is

exchanged between parties Consider appropriate options to

resolving the issues Recommend other steps, including a

hearing before a judge

What is Intake?

Intake is part of the court process and is mandatory. Intake begins when you start an application in the Family Court. Court officer, usually called an intake officer, who will help you identify the issues and make sure that you have provided all information and documentation required by the Family Court.

What does the intake officer do?

The intake officer may:

Suggest that you seek legal advice and counselling services

Suggest that you consider mediation Refer the parties to the Parent Information Program Schedule a court date before a judge Recommend to a judge that a pre-trial settlement

conference be scheduled Direct that the parties provide proper financial and

other information to each other

The intake officer does not:

Take sides in a case Force the parties to reach a settlement

outside of court Make final decisions about a case The intake officer cannot give legal

advice. The intake process does not replace negotiation between lawyers.

Law Help Ontario - 2007

Law Help Ontario, a self-help centre for low income, unrepresented litigants appearing before Superior Court, was launched in December 2007 by Pro Bono Law Ontario (PBLO)

The Project is "designed for litigants that cannot qualify for legal aid or afford to hire a lawyer"

Philosophy of the Project

The underlying philosophy of the project is that self-represented litigants have a fundamental right to access the justice system even if they cannot afford to retain a lawyer for full representation privately, or qualify for pro bono or Legal Aid.

The Law Help Ontario walk-in centre

Located on the 393 University Avenue in Toronto - the building that houses Toronto's main Superior Court of Justice branch. Hours of Operation are Monday to Friday from 9:30 a.m. to 4:00 p.m.

The centre is staffed by at least one intake coordinator every day, two volunteer lawyers (different each day) and pro bono law students.

Law Help operates as a walk-in centre, on a first-come, first-served basis.

Litigants who request or require more than 15 minutes of assistance from the intake coordinator or pro bono lawyers are asked to complete a detailed intake form.

Qualifying for pro bono assistance

Litigants must meet financial eligibility criteria. Litigants must present with a civil (non-family)

issue and may only act as individuals. Companies, corporations and businesses do

not qualify for services. In limited circumstances, business owners are

assisted, on a case-by-case basis, if they meet Law Help's financial eligibility criteria.

Law Help provides various of legal services Information on rules and procedures Help filling out court forms Help assembling pleadings, such as motion

records Summary legal advice Legal representation Referrals Legal resource materials Legal Seminars Instructional videos

Alberta Law Information Centres -2007

The objectives of the Law Information Centres are to:

Improve access to justice for individuals acting on their own behalf.

Increase SRL's access to appropriate information that will assist them prior to, during and after their day in court.

Reduce the amount of time needed to deal with SRL cases in court

Encourage ongoing, collaborative, and consultative relationships to form among justice service providers/resources.

The Service Vision of the Law Information Centres

Be client-focused Have the capacity to determine what a SRL

currently needs and what next step is required. Offer objective services by knowledgeable and

respectful staff. Facilitate networks with the justice community

and associated service providers for the purpose of sharing legal information and practice knowledge.

Be based on collaboration of stakeholders and service providers to ensure greater continuity of service to SRLs with less risk of duplication

Law Information CentresTheir services include:

Referring SRLs to legal and other resources in the community

Providing information about legal advice options Providing information about alternatives to court Providing legal information Explaining court procedures Explaining the steps to take in making legal

applications Helping litigants locate and fill out court forms

Cost for Operation of LlnC The annual cost of the LInC program is

$700,000, with the Edmonton location serving an estimated 130 people per day. (Edmonton Journal)

The Calgary LInC opened in January 2009 and, since opening, has nearly tripled the number of clients it serves on a monthly basis, from 1,062 in January to 2,656 in March, 2009.

Summary of Recommendations

Development and implementation of a comprehensive set of management policies would provide the LInC manager and courthouse manager with clear guidelines on their individual responsibilities should be considered.

Taking steps to ensure that staffs are not providing legal advice should be considered.

Recommendations Cont. Development and implementation of an ongoing

strategy to promote its service to the public should be considered.

The LInC's data collection process should be evaluated and refined.

A means of obtaining regular follow-up feedback from other Alberta Justice staff over the next few years to assist in assessing the impact of the LInC on the court

The LInC should work with organizations to determine if there are certain populations that are not accessing the LInC and to assess the barriers to access and potential solutions for overcoming these barriers (e.g. satellite or mobile LInCs).

SEDONA CANADA PRINCIPLES

Addressing Electronic Discovery

“Electronic discovery” refers to the discovery of electronically stored information, including e-mail, web pages, word processing files, computer databases, and virtually any information that is stored on a computer or other electronic device. Technically, information is “electronic” if it exists in a medium that can be read through the use of computers or other digital devices. Such media include random access memory, magnetic disks (such as computer hard drives or floppy disks), optical disks (such as DVDs or CDs), and magnetic tapes. Electronic discovery can be distinguished from “paper discovery,” which refers to the discovery of writings on paper that can be read without the aid of electronic devices.

Principles

• Principle 1: Electronically stored information is discoverable.

• Principle 2: In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court’s adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information

• Principle 3: As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information.

• Principle 4: Counsel and parties should meet and confer as soon as practicable, and on an ongoing basis, regarding the identification, preservation, collection, review and production of electronically stored information.

• Principle 5: The parties should be prepared to produce relevant electronically stored information that is reasonably accessible in terms of cost and burden.

• Principle 6: A party should not be required, absent agreement or a court order based on demonstrated need and relevance, to search for or collect deleted or residual electronically stored information

• Principle 7: A party may satisfy its obligation to preserve, collect, review and produce electronically stored information in good faith by using electronic tools and processes such as data sampling, searching or by using selection criteria to collect potentially relevant electronically stored information.

• Principle 8: Parties should agree as early as possible in the litigation process on the format in which electronically stored information will be produced. Parties should also agree on the format, content and organization of information to be exchanged in any required list of documents as part of the discovery process.

• Principle 9: During the discovery process parties should agree to or, if necessary, seek judicial direction on measures to protect privileges, privacy, trade secrets and other confidential information relating to the production of electronic documents and data.

• Principle 10: During the discovery process, parties should anticipate and respect the rules of the forum in which the litigation takes place, while appreciating the impact any decisions may have in related actions in other forums.

• Principle 11: Sanctions should be considered by the court where a party will be materially prejudiced by another party’s failure to meet any obligation to preserve, collect, review or produce electronically stored information. The party in default may avoid sanctions if it demonstrates the failure was not intentional or reckless.

• Principle 12: The reasonable costs of preserving, collecting and reviewing electronically stored information will generally be borne by the party producing it. In limited circumstances, it may be appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either agreement or court order.

COURT ORGANIZATION AND MANAGEMENT

Proportionality and Ontario Court

Corporate Law (Proportionality)• Joint and Several Liabilities under the Ontario Business

Corporations Act (Law Commission of Ontario) www.lco-cdo.org/js/joint-several-liability-final-report.pdf (Ref: http://cfcj-fcjc.org/inventory/)

Case Proceedings (Ontario Court)• Regional Jurisdiction of Ontario Court of Justice (Ontario Court

of Justice) Statistical Data for Criminal Proceedings: Provincial Overview, By Region, By Court Location July 2010 to June 2011

76Ahmed, S.March 15, 2012

http://www.lco-cdo.org/js/joint-several-liability-final-report.pdf

Ontario Business Corporations Act: Joint and Several Liabilities

Ahmed, S.March 15, 2012

JOINT AND SEVERAL LIABILITY

Purpose is to analyze the provision of Joint and Several Liability to support the claims justifying the proportionate liability appeared in Ontario in 2011- on the basis of Ontario Business Corporations Act

Provides for a plaintiff suffering loss- to recover the entire claim from defendants chiefly on proportionality basis

Refers the remedy as indicated in section 1, extent of liability and remedy over, of the Ontario “Negligence Act” (Ref: R.S.O. 1990, CHAPTER N.1; www.e-laws.gov.on.ca/)

For example, if the plaintiff’s lost is found to have caused by three different defendants (say D1, D2, and D3), the plaintiff is entitle to claim full payment from any one of the dependants

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Ontario Business Corporations Act: Joint and Several Liabilities (Cont.)


GROUND FOR PROPORTIONALITY

Scope: In general, proportionality is somewhat problematic. However, the scope had been defined as procedural rules covering two major notions: proceedings being restricted to be based on proportion of monetary amount; and litigation procedure based on the amount of money at issue (such as BC Rule 68, Joint and Several Liabilities Under the Ontario Business Corporations Act, etc.)

Trends Relating to Proportionality: Recent amendment delineates the requirement where both importance and complexity of rules in civil procedure are questionable with, in particular for cost-effectiveness in proceedings.

Reforms Relating to Proportionality: This enclaves many other jurisdictions in reforms; for example, ALRT Draft Rules on Managing Litigation, 2007; Ontario Simplified Procedures (Rule 76), 1996; and recent development of Reform- Joint and Several Liability Under the Ontario Business Corporations Act, 2011

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MODELS FOR REFORM, SOME INSTANCES

Proportionate Liability is framed out by six circumstances (will be illustrated in the next slide with example)

Legislative Cap on Liability- damages are relevant to economic loss while the ‘caps’ can be operated in three ways: (a) single monetary amount; (b) percent or multiplier of the fee charged by the professionals; and (c) a percent of damages awarded

Hybrid- a system with proportionate liability and caps on damage where co-defendants are liable for the proportion of the damages, maximum total amount payable by each co-defendant is caped to certain statutory limit

Contractual Limitations on Liability, there would be a cap on damages to the amount of the fees paid depending on the nature parties by private and public category.

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PROPORTIONATE LIABILITY OPTIONS

Fundamentals: Full Proportionate Liability

Option-1, Plaintiff’s Sole: Proportionate Liability is applicable because of Plaintiff’s Contributory Negligent.

Option-2, Burden Sharing: Proportionate Liability with Plaintiff Contributory Negligent of an Insolvent, Financially Limited or Unavailable Defendant's Share

Option-3, Arbitrary Threshold: Proportionate Liability with Peripheral Wrongdoer

Option-4, Fraud or Violated: Proportionate Liability with a Reallocation of some or all of an Insolvent or Unavailable Defendant's Share

Option-5, Court Discretion: as decided by courts in absence or in consideration of relevant grounds



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PROPORTIONATE LIABILITY OPTION

Plaintiff Plaintiff

D1 D2 D3 P D1 D2 D3 P

FUNDAMENTALS 70% 20% 10% 20%

(Full Proportionate)

OPTION 1: Plaintiff's Sole Liability

50% 20% 10% 20% 20% 20% (+60%) on default Plaintiff is responsible for 60%

OPTION 2: Burden Sharing

15% 30% 15% 30%+10% equally-apportioned liability applicable

OPTION 3: Arbitrary Threshold

25% 25% 25% 25% 70% 20% 10% subject to threshold amount of liability

OPTION 4: Fraud or Violated

70% 20% 10% 0% joint and several liability is retianed

OPTION 5: Court Discretion

if the co-defendants' fault is minor

say, total amount of judgment is $100,000

REFORM MODELS / OPTIONS

RESPONSIBILITY LIABILITY / RECOVERABLE

REMARKSDefendant Defendant


LEGISLATIVE DEVELOPMENT TRENDS

Canadian Statutory Reform that Refers Two Acts

• Canada Business Corporations Act- where proportionate liability regime provides some conditional grounds.

• Ontario Securities Act- measures the damages in three ways.

Joint and Several Liability in Canada- Earlier State

• Recent Canadian history experiences with the rejection of ‘Reform to Proportionate Liability’ many times .

• In 1979, Alberta Law Reform Commission (ALRC) recommended retention of joint and several liability, while British Columbia Low Commission in 1986 and Ontario Law Commission in 1988 provided the same conclusion provided by the ALRC suggested framework.

• Slater’s Report (1986), however, concerned about the possibility of Liability Crisis and lack of data to support ‘claims of a crisis’.


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TRENDS OF REFORMS IN OTHER COUNTRIES United States: Proportionate capped liability, a modified form of

proportionate liability, was adopted at the federal level in USA through the “Private Reform Litigation Reform Act” 1995.

United Kingdom: The UK Companies Act 2006 allows the auditors to limit their liability by contract with their company clients-- depending to the shareholders’ approval (to address tort liability)-- subject to the term “such amount is fair and reasonable in all the circumstances”

POLICY CONSIDERATIONS IN CANADA Bearing the Efficient Distribution of the Risk of Loss Compensation and Deterrence- as the primary policy goal of public

enforcement and the criminal law while private law focusses on compensation

Fairness- pertinent to both the plaintiff and the defendants and consistent with the type of regime preferable to the reform

Access to Justice and Cost to Litigation- depending on different liability regimes


83


CONSTRAINTS OR SHORTCOMINGS

Different Discussion: Public discourses on joint and several liability are variant in Ontario although several other jurisdictions have taken steps to address this issue.

Other Jurisdictions: Trends toward proportionate liability reforms in other countries, such as USA and UK, does not necessarily justify the ground for the respective reform in Canada as those countries have more or different litigious situation.

Provision of Status-Quo: Beyond the arguments for reform to proportionate liability and statutory caps on damages such as fairness, rising cost of litigation, provision of services, and/or contractual limitation on liability– this provision allows to retain “Joint and Several Liability” on the some grounds of which Fairness and Compensation, Common Law Protection, Deterrence and Risk, and Statutory Caps are Inappropriate are some critical instances.


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Ontario Court of Justice: Regional Jurisdiction


2000 2005 2010

Toronto 6 20,559 22,957 22,207

Southwestern (West) 12 6,947 7,785 8,334

North West 4 5,170 4,791 5,811

North East 11 3,328 3,607 4,201

Eastern (East) 10 6,035 7,707 8,078

Central (East & West) 17 10,344 11,480 11,843

Ontario Average 60 8,337 9,371 9,747

RegionNumber of Courts

Year

AVERAGE NUMBER OF CHARGES RECEIVED PER COURT

Ontario Court of Justice: Regional Jurisdiction (Cont.)


Ontario Court of Justice: Regional Jurisdiction (Cont.)

BC Parenting After Separation Project

• Pilot Project• Started out as voluntary options at 4 locations in British

Columbia in 1994• Mandatory form in the provincial courts in Burnaby and New

Westminster in 1998• Between 1999 and 2000, the program expanded to other

locations

Purpose

• Assist parents in making informed decisions through the separation process

• Education for both the emotional and legal side of separation

• Three-hour workshop• Encourage alternative means

of settlement other than the court

Final Evaluation Report 2000

• Impact of this mandatory reform on litigation rates at pilot jurisdictions compared to that at sites offering the reform on a voluntary basis

• Methodology involved establishing a comparison location at North Vancouver, as this site was shown to have similar litigation patterns as the pilot site at Burnaby and New Westminster

• Three different angles: case file review, pilot site court staff interview, client follow-up interview

• New provincial court rule

Case File Review

• Prior new rule

Case File Review

• After new rule

• Court staff interview – case flow improved• Client follow-up interview – reasoning behind

clients’ choice

Discussion• The Mandatory Parenting After Separation workshop is held before the

first proceeding. Thus, the reduction of potential court cases to first appearance could be easily linked to the effects of the workshop. However, why did the trend for reduction at the second and third appearances also occur at the pilot sites?

Caseflow Management

BC Expedited Litigation Project (Rule 68) (2005)

Backgroundobtaining a resolution in a British Columbia Supreme

Court civil action was found to be prohibitively expensive, taking far too long, and overly complex as stated by the Justice Review Task Force in BC.

In the Task Force’s Green Paper it was outlined that cost, delay and complexity constitute grave problems in the administration of justice.

Using the general rules of proporionality, it was decided to balance the interest of justice with cost-effectiveness in order to increase access to justice.

It was under this principle that the court must only allot the case a share of the court’s resources proportionate to the magnitude of the case, while taking into account the need to allot resources to other cases that the BC Expedited Litigation Project (Rule 68) came to be.

Reform Specifics In September 2005, Rule 68, Expedited Litigation Project Rule,

was introduced to facilitate the efficient conduct of Supreme Court cases where the dollar-value of the claim is $100,000 or less, exclusive of interest and costs. It was introduced as a two year pilot project in the Vancouver, Victoria, Prince George and Nelson registries.

The goal was to make the amount of pre-trial process and, therefore, the cost to the parties, proportionate to the value of the amount in dispute and therefore make the justice system more efficient.

Family proceedings and class actions are excluded. Where both parties agree, the Rule can apply to cases where the amount claimed is over $100, 000. Parties may also apply to be excluded from the rule, and the court can also remove cases it deems inappropriate for expedited litigation.

Continued…Key features of Rule 68 include:

limits on pre-trial procedures such as examination for discovery; with few exceptions, contested interlocutory applications are not allowed before a case

management conference or a trial management has been held; pre-trial document disclosure is simplified and expedited; jury trials are not allowed; parties are required to engage in an early and more comprehensive exchange of

information; trial management conferences conducted by a judge are held between 15 and 30 days

before trial; at least seven days prior to a trial management conference, parties are required to

exchange comprehensive trial briefs, which among other things summarize the issues and their positions on the issues, provide a list of witnesses that they intend to call at trial and summarize the evidence that they expect each of their witnesses will give; and

at a trial management conference, a judge may impose time limits on the direct and cross-examination of witnesses, as well as on opening statements and final submissions.

The aim of Rule 68 was to limit both pre-trial procedures and the evidence that can be called at trial, in effect, making the justice system more streamlined by allotting less court time and resources to simple civil matters.

Legacy of Rule 68 The two year pilot project (Rule 68) was extended in 2008 province-wide, further

amendments were made with respect to:

- Case planning conferences: to limit costs further- New fast track litigation: which combines Rule 66 and 68

Among other amendments with respect to proportionality, experts, Supreme Court Family rules etc.

As of 2010, BC is still in the phase of implementing the new Rules, in effect, replacing Rule 68.

Since the primary goal of civil justice reform is the just resolution of disputes through a fair but swift process at a reasonable expense, Rule 68 was formulated in order to ensure that the extent of the procedure is proportional to the magnitude of the dispute.

Link to Guide on Rule 68 produced by the Law Courts Education Society of BChttp://www.justiceeducation.ca/themes/framework/documents/BCSCSHIC_Expedited.pdf

http://www.justiceeducation.ca/themes/framework/documents/BCSCSHIC_Expedited.pdf

Andreia Cabral

Civil Rights in Saskatchewan Long-Term Care Facilities

& Nunavut Court of Justice 2001 Report

Civil Rights in Saskatchewan Long-Term Care Facilities 2010 - Questionnaire Results

1. Right to Vote• All claimed elderly entitled to vote in fed./prov. elections, while 8 left municipal

elections blank; 8 indicated they would not provide assistance if necessary2. Staff Education on Rights• 9/27 homes indicated seminars focus on civil rights; those who responded no, reported

lack of resources and unwillingness of staff to attend3. Resident Tobacco / Alcohol Use• All but one indicated smoking is permitted, but restrictions may be appropriate i.e.

smoking off property. All respondents indicated residents were permitted to drink alcohol

4. Residents’ Council• 19 respondents indicated that they have an active Council; 4/6 who indicated no, were

those who indicated that they had staff seminars concerning civil rights of residents5. Residents Bill of Rights• 18 indicated that they have one and are proactive in making sure families and residents

are aware of it • Lack of recognition by others is correlated to a lack of civil rights6. Privacy• 21/27 respondents seem satisfied that they have measures in place

Interview ResultsThemes of Incidents: 1. Respect: • Interviews suggest lack of respect is widespread, but a result of ‘institutional culture’• Language used by staff dehumanizing , i.e. “feeder”, “wanders”, treating them like children,

meals are unpleasant, over or under medicated, concerns of abuse, i.e. physical, problem with incontinent products

• Lack of respect as early on as the placement process• Many believe workers schedule works to convenience staff and not residents2. Staff/Bed Shortages:• Indirectly civil rights are affected with an over worked and stressed staff, which is less able to

find time to respect individuals needs• Staff shortages, and failure to replace absentee staff commonplace, so families took on staff

responsibilities, i.e. feedings, etc...3. Workplace – Home Conflict:• While it is a workplace for some, it is a home for others, i.e. issues such as workplace gossip

have a negative affect on residents, smoking, etc...

Need for Reform

1. Improving Education:• Training is currently uneven in abuse awareness, and not enough emphasis on protection

of civil rights and communication• Development of workshops or presentations, including handbooks and training programs

are needed moving forward2. Law Protecting Rights:• Protections and laws are scattered throughout statutes, common law rules, and

regulations, there is a need for clarity and organization in the law• Legislating Bill of Rights into legislation would offer official status to rights, enumerated

rights, can provide for enforcement, and make sure it is displayed for all to see 3. Reporting Abuse and Complaints Process: • Suggest a formal complaint procedure and mandatory reporting of abuse, which would

help make the system more transparent and publically accessible4. Access to Advocacy and Investigations:• Access to knowledge, independent advocates and investigators committed to assisting

residents to assert their rights

Nunavut Court of Justice 2001 Annual ReportMain Themes 2001 Report Findings

Court Circuits • Difficult time getting to all communities• Trying to garner Elder support in all communities

Deputy Judges • Only 2 resident judges, rely on judges from other jurisdictions

Nunavut Rules of Court • Review & revise rules of court• Develops public info. literature

JP Program • 92 total / 66 speak Inuktitut• 54 active / 44 speak Inuktitut•JP’s bridge communities

Family Support Office • Inuusirmut Path Finders Program•Encourages Mediation

Continuing Education • Inuksuk High School Law Course• Akitsiao Law School Society Project• Law Student Co-op• Youth Court Advisory Panel• High School Student Outreach Initiative

Nunavut Court of Justice 2007 Annual ReportMain Themes 2007 Report Findings

Deputy Judges • Relied on them 40/52 weeks

JP Program • Needed to bring accessible justice, seen as role models and leaders in community• Ever increasing workload• There are now 2 JP Courts, 67 total, 49 speak Inuktitut

Mediation • Emphasis on Mediation, i.e. Inusiqmute Aqusiuqtiit Program• Goal: intervening before problems escalate

Family Abuse Act • Encourages empowerment and taking responsibility for behaviour before violence occur so as to avoid it

Mental Health Issues & The Court • Est. bridges of communities, sharing resources, identifying needs to deal with issues more effectively•Training local people, NB because of cultural connection

2001 Annual Report vs. 2007 Annual Report1. Lack Of Resources: • 2007 Report indicates that lack of resources limits time available to invest in creative

ideas/programs, assistance of staff, training, and judicial involvement, while the 2001 Report was much more confident and optimistic

• Continuing Education aspect as outlined in 2001 report seems to have been completely scrapped in the 2007 report due to lack of resources

2. Court Circuits: • Continue to experience difficulty in reaching all communities, i.e. Repulse Bay3. Training:• Training for JP’s continues to be an issue, i.e. Postponements, lack of judge assistance• Challenges in training for court workers, police and senior JP’s is a problem in both4. Technology:• Both demonstrate importance of keeping pace with technology, has made things easier

through the use of videoconferencing, digital recoding equipment, etc... in making courts more accessible, i.e. even for expert witnesses

5. Importance of Mediation: • Both stress it, and claim it to be much more effective and beneficial for people of Nunavut

(Inusiqmute Aqusiuqtiit Program) Need for Inuit problem-solving style rather than relying on adversarial system alone

Evaluation of family law expanded duty counsel pilot project

• Three objectives of the project:• 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.

Findings/Recommendations • There is a strong need for expansion of services provided

by duty counsel.• 80% support for the expanded role of duty counsel based

on the responses from clientele• Eleven recommendations based on the findings of the

project.• Continuity of representation and file continuity• Improved organization and accountability, consistency of

advice through the coordinator, new emphasis on resolution.

• Continuous training of duty counsel, flexibility in scheduling, document production.

Table one

Functions of duty counsel• General functions of duty counsel

• Advising unrepresented parties about their legal rights and obligations

• Assisting unrepresented parties in negotiating and settling issues on a final or temporary basis

Expanded role of duty counsel

• All of the general functions of duty counsel PLUS:

• Expanded role in drafting and preparing documents for unrepresented parties using the facilities and equipment provided by the project

• Maintaining continuity of client representation whenever possible from one court appearance to the next

• Reviewing court documents and assisting in preparing court documents such as motions, affidavits, and financial statements

• Referring unrepresented parties to other sources of assistance, such as on-site or off-site mediation, Legal Aid, or private counsel

• Attending court with unrepresented parties to request adjournments, argue motions, child protection hearings, default, garnishment and support “show cause” hearings; and assisting in summary hearings regarding custody, access, and support where the issues are not complex

• Opening and updating files opened for unrepresented parties in the duty counsel office to maintain file continuity for clients if continuity of representation is not possible

• Preparing and submitting data forms for statistical collation

• Source: Presentation notes prepared for the Hamilton Duty Counsel Training Session on October 27, 1999.

Questions

Does Ontario require specific principles that outline the scope of electronic discovery?

Should the expanded role of family duty counsel be implemented in all jurisdictions? What are the advantages and disadvantages?

Multidisciplinary Paths to Family Justice: Professional Challenges and Promising PracticesFinal Report 2010by Brenda Jacobs & Lesley Jacobs

Igor GontcharovGroup Presentation – March 15, 2012

Background•prepared for LCO’s family law reform

project Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers in the Justice System▫http://

www.lco-cdo.org/en/content/family-law-reform

•one of two research papers commissioned in Feb 2010. Second paper by Noel Semple (Osgoode) Cost-Benefit Analysis of Family Service Delivery: Disease, Prevention, and Treatment▫http://www.lco-cdo.org/family-law-process-ca

ll-for-papers-semple.pdf

Overview of LCO family project - 1• Based on four pillars of family justice reform in

Ontario:▫ Mandatory Information Program▫ Dispute Resolution Officers▫ Information and Referral Coordinators▫ Family Mediation Services

• Accomplished to date:▫ organized an expert roundtable▫ released a paper with options for a family law

reform project;▫ formed an advisory group;▫ released a consultation paper and held

consultations and released the results;▫ funded research papers;▫ released an Interim Report.

Overview of LCO family project - 2• LCO draft recommendations:

▫more early information through one basic brochure and one online website;

▫more subsidized summary legal advice on family law;

▫ increased legal aid for mediation;▫linking information centers with community

centers working with particular communities;▫ in the long term, family centers across the

province which offer comprehensive family justice services at entry point level

• Next Steps▫The LCO seeks feedback from the public

by April 30, 2012. We anticipate releasing a Final Report in mid-2012.

J&J Report: Basic Idea•the existing and planned infrastructure

for multidisciplinary family services can be complimented with legal services, thus increasing access to family justice

•Two objectives:▫Situate multidisciplinary family justice

services within the context of multidisciplinary family services in general

▫Identify tensions and challenges, as well as ways to ease them (“promising practices”)

LCO principles for improving access to family justice• priority to early stages• multidisciplinary approach• multiple points of entry• province-wide coverage

Definitions:“family” an inclusive term that applies “to a

range of what are sometimes called familial relationships” (P.7)

“family challenges” and “family problems” – issues with legal dimension; “problems” when family becomes dysfunctional (pp.4-5)

Legal services and Report’s focus•Legal information•Legal consultation•Informal dispute resolution•Legal representation•Alternative dispute resolution•The courts

•Focus (2) on family needs, not on family needs as understood by professionals▫(e.g. legal needs – immigration, family ,

employment, civil, and criminal)

Focus (1) on early entry points

Features of multidisciplinary family services delivery model

▫Services are bundled and co-located▫Team work is respectful of professional

boundaries▫Reflect local family needs and resources▫Designed to handle complex problems in

non-reductionist manner▫Culturally-relevant▫Multiple entry points▫Information shared by the team▫Inviting and safe environment▫Free or affordable

Existing multidisciplinary family services – Example 1•Community Health Centers in Ontario (since

1970s, 74 in total)▫Distinctive health care delivery system, based

on broad WHO definition of health (p.16)▫Funded by the Ministry of Health, do not bill

OHIP▫Tensions

Multidisciplinary ethos vs. sole medical practice Salaries vs. fee-for-service Threatens professional autonomy of physicians

Existing multidisciplinary family services – Example 2• The Yearly Years Learning (3 stage )Initiative in

Ontario▫Establishes a continuum of services for children 0-

12 and families▫Breaks the divide between education and childcare▫Different professionals on a co-located site▫Stages:

Ontario Early Years Centers (2002) All day kindergartens at 580 public schools (since

2010) Best Start Child and Family Center (in development)

– list of services (p.2) hence an opportunity to add legal services

Existing Legal Services and their limits•68 Family Law Information Centers (FLICs)•80 Community Legal Aid Clinics•Limitations:

▫Legal clinic coverage is not comprehensive (low income families only and not everywhere in ON)

▫Information not shared with other professionals▫Unlikely to be proactive and effective at

preventing conflict▫FLICs are located in courthouses

•FLICs are better suited for low-level legal services and can be potentially integrated

Examples of MFS with legal services•The Family Violence Project of Waterloo

Region•LAMP Community Health Center•The Hincks-Dellcrest Center•North Renfrew Family Services•Durham Driven

“inductive” conclusion: community health centers, family counseling centers, and future Best Start and Family Centers – all viable models for integrating legal services

Conclusion:challenges to multidisciplinary delivery of services

▫Resistance from professional organizations e.g. Ontario Medical Association, LSUC

▫Unhelpful professional rules of conduct▫Legal culture vs. caring professions▫Differing professional perspectives and

priorities▫Professional Stratification and Stereotyping▫Differences re confidentiality, privacy, and

the duty to report▫Plurality of client perspectives▫Cultural sensitivity▫Complex structure of funding

Promising Practices▫Co-location▫Collaboration through Information Technology▫Cross-training of professionals▫Clearly defined professional roles an boundaries▫Common approach to confidentiality and

information sharing▫Communications strategy▫Building relationships▫Empower families▫Integrating police▫Curriculum development in professional

programs

Thank you!

[email protected]

canadian judicial council, access to justice: report on selected reform initiatives in canada (june...

Documents

justice committee

chief justice of canada

justice system

affordable justice

canadian judicial council

canadian forum

council members

rules of civil procedure