Civil Justice Reform

1
Civil Justice Reform
2
Canadian Judicial Council, Access to Justice
Report on Selected Reform Initiatives in Canada
(June 2008)
3
About the Canadian Judicial Council

• The 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 Canadas superior courts, the senior
  judges of the territorial courts, and the Chief
  Justice of the Court Martial Appeal Court of
  Canada.

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About the Report

• The 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

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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. BCs Rule
  68).

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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.

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Noted Examples

• BC Justice Review Task Force Civil Justice Reform
  Working Group Draft from 2007
• Ontario Civil Justice Reform Project report
• mechanisms to ensure proportionality - automatic
  expedited tracks for cases under a monetary
  thresholds
• Time based expedited tracks
• Recent proposed rules to move away from dollar
  based triggers

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2. Experts

• a) 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 partys expert to testify at trial
  unnecessarily, or unreasonably refuses to accept
  certain experts.

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Recent Trends

• introduction 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

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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.)

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Recent Trends

• Assisting 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

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An example

• The 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

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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.

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Recent Trends

• rules 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

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5. Case-flow Management

• There 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

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Recent Trends

• Nova Scotias Halifax Caseflow Management Project
  
• Québecs 2002 Code of Civil Procedure revisions
• Ontarios Rule 77 and 78
• The BC Civil Justice Reform Working Group
  suggested that proposed Case Planning
  Conferences amendments to Rule 68

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Conclusion of Introduction

• The 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.

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Expert Evidence/Witnesses in the Federal
CourtsBeatrice G. Mloka
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Federal Court Rules- Expert Evidence (2006)

• 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.

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Purpose

• 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.

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The Provisions Under the Rules , Before the
Amendments

• 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).

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Relevant Provisions in the Rules of Other
Courts-Three Approaches

• 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 witnesss report before
  pre trial conference, e.g. Manitoba, Saskatchewan
  and Quebec

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Federal Court Rules Amendments

• Rule 258 (4) (5)- Requires experts 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 experts affidavit or
  statement
• Rule 279(b) 281- Admissibility of experts
  evidence at the trial

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Federal Court Rules- Expert Witnesses (2008)

• 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.

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Issues Considered in the drafting of the
Amendments

• 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

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1999 Ontario Mandatory Mediation(Rule 24.1
75.1)

• Tina Motavalli

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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.

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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.

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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.

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Fees

• Rule 24.1 Rule 75.1
• The mediators 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
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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.

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• 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.

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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.

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• 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.

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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?

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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.

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• 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.

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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.

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Question

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

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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

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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.

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Evaluation from 5 Angles Showed How Objectives
Were Met

1. Case and administrative files
2. Survey of mediation clients
3. Telephone interviews with practicum graduates
4. Focus group meeting with mentors
5. Interviews with key respondents and subject
   matter experts

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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.

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3 Policy Changes

• Fast track
• 2) Three-session limit

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3 Policy Changes

• 3) Draft Memorandum of Understanding

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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.

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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?

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Point of Entry Assistance Bobin Mathew
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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.)

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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.

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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.

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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

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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.

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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

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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.

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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

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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.

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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"

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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.

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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 930 a.m. to 400 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.

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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.

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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

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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.

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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

65
Law Information Centres

• Their 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

66
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.

67
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.

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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).

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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.

70
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 courts
  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

71

• 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.

72

• 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

73

• 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.

74

• 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.

75

• Principle 11 Sanctions should be considered by
  the court where a party will be materially
  prejudiced by another partys 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.

76
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-liabilit
  y-final-report.pdf (Ref http//cfcj-fcjc.org/inve
  ntory/)
• 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

77
Ontario Business Corporations Act Joint and
Several Liabilities

• 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 plaintiffs 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

78
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

79
Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)

• 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.

80
Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)

• PROPORTIONATE LIABILITY OPTIONS
• Fundamentals Full Proportionate Liability
• Option-1, Plaintiffs Sole Proportionate
  Liability is applicable because of Plaintiffs
  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

81
Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)
PROPORTIONATE LIABILITY OPTION
82
Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)

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

83
Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)

• 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

84
Ontario Business Corporations Act Joint and
Several Liabilities (Cont.)

• 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.

85
Ontario Court of Justice Regional Jurisdiction
86
Ontario Court of Justice Regional Jurisdiction
(Cont.)
87
Ontario Court of Justice Regional Jurisdiction
(Cont.)
88
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

89
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

90
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

91
Case File Review

• Prior new rule

92
Case File Review

• After new rule

93

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

94
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?

95
Caseflow Management

• BC Expedited Litigation Project (Rule 68) (2005)

96
Background

• obtaining 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 Forces 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 courts
  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.

97
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.

98
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.

99
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 BC
• http//www.justiceeducation.ca/themes/framework/do
  cuments/BCSCSHIC_Expedited.pdf

100
Andreia Cabral

• Civil Rights in Saskatchewan Long-Term Care
  Facilities
• Nunavut Court of Justice 2001 Report

101
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 necessary
• 2. 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 attend
• 3. 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 residents
• 5. 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 rights
• 6. Privacy
• 21/27 respondents seem satisfied that they have
  measures in place

102
Interview Results

• Themes of Incidents
• 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 residents
• 2. 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...

103
Need for Reform

• 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 forward
• 2. 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
  accessible
• 4. Access to Advocacy and Investigations
• Access to knowledge, independent advocates and
  investigators committed to assisting residents to
  assert their rights

104
Nunavut Court of Justice 2001 Annual Report
Main 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 JPs 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
105
Nunavut Court of Justice 2007 Annual Report
Main 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
106
2001 Annual Report vs. 2007 Annual Report

• 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 Bay
• Training
• Training for JPs continues to be an issue, i.e.
  Postponements, lack of judge assistance
• Challenges in training for court workers, police
  and senior JPs is a problem in both
• 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
• 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

107
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.

108
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.

109
Table one

• Functions of duty counsel

• Expanded role 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

• 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

110

• 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.

• 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