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Civil Justice Reform

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Title: 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.

4
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

5
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).

6
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.

7
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

8
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.

9
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

10
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.)

11
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

12
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

13
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.

14
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

15
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

16
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

17
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.

18
Expert Evidence/Witnesses in the Federal
CourtsBeatrice G. Mloka
19
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.

20
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.

21
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).

22
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

23
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

24
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.

25
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

26
1999 Ontario Mandatory Mediation(Rule 24.1
75.1)
  • Tina Motavalli

27
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.

28
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.

29
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.

30
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
31
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.

32
  • 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.

33
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.

34
  • 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.

35
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?

36
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.

37
  • 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.

38
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.

39
Question
  • Why do you think other provinces in Canada has
    not adapted this mediation culture?

40
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

41
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.

42
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

43
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.

44
3 Policy Changes
  • Fast track
  • 2) Three-session limit

45
3 Policy Changes
  • 3) Draft Memorandum of Understanding

46
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.

47
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?

48
Point of Entry Assistance Bobin Mathew
49
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.)

50
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.

51
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.

52
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

53
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.

54
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

55
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.

56
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

57
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.

58
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"

59
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.

60
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.

61
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.

62
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

63
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.

64
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.

68
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).

69
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
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