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Civil system needs key changes

|Written By Helen Burnett

Ontario needs changes to its trial scheduling process, more resources and information for unrepresented litigants, and an increase in the judicial complement in certain areas, say recommendations in a year-long comprehensive review of the province’s civil justice system.

Former Chief Justice Coulter Osborne released his summary of findings in a review of the civil justice system. Among other changes, Osborne recommended more judges in some areas, and resources for unrepresented litigants.

More than a year after he undertook his review of Ontario’s civil justice system, former Associate Chief Justice Coulter Osborne’s summary of findings was released to the public late last week, including 81 recommendations for change in 18 areas, from appeals to technology. The Civil Justice Reform Project final report is to follow later this year.

At a press conference, Attorney General Chris Bentley said he’s “hopeful that we can make quick progress.” He added that, “Our determination is to move forward. The Ministry of the Attorney General is going to be supporting the focused discussion process.”

Bentley also challenged those who represent legal organizations to “get your members involved; we want the input and we want the input as quickly as possible.”

Meanwhile, Bentley tells Law Times that he hopes by the spring the ministry will have a good idea of where the judiciary, the bar, and the public stand, and what the next steps will be.

“I expect that if the central recommendations in this report are implemented, there will be what I hope is a marked reduction in the cost and time required to bring a civil action that does not settle to trial. Thus, access to justice will be enhanced,” says Osborne in his report.

As part of his review, Osborne consulted with dozens of legal stakeholders, many of whom were encouraged by the findings of the summary report.

James Morton, past president of the Ontario Bar Association, tells Law Times the OBA is “encouraged” that the report emphasizes resources: “We’re obviously going to be passing the report on to our membership for further comment.”

He adds the association is also pleased a number of the recommendations that it supported, such as changes to the monetary jurisdiction of Small Claims Court, have been picked up in the report.

“The changes, as far as we can see, are sensible, incremental changes,” he says, noting that the system was good overall, and needed tinkering rather than a “slash and burn” approach.

“We look forward to studying in detail the many positive and thought-provoking proposals contained within the summary, and to working with the attorney general on this important initiative,” says Michael Eizenga, president of The Advocates’ Society.

Access to justice was one of the main issues raised in the review, and during the course of the year, Osborne said that delays in scheduling trials were noted in many regions. The worst of which was Brampton, where as of November 2006, trial dates were not being fixed until 2010. Delays in hearing motions varied by region.

As a result, Osborne is recommending that the Office of the Chief Justice of the Superior Court and the regional senior justices of each region consider eliminating the requirement of lawyers having to personally attend assignment court, replacing this with a new practice for setting trial dates, such as through teleconference hearings or the internet.

He recommends that judges enforce time limits on trials “to ensure greater certainty in trial duration and improved trial scheduling,” and use teleconferencing more often for short motions.

Based on the ratio of defended cases to judges and other submissions, Osborne also concluded that more judges are urgently needed in the central west (Brampton), central south (Hamilton/Kitchener), central east (Newmarket) and probably Toronto.

“One does not have to spend much time in the Brampton and Newmarket courthouses to realize how busy those judicial centres are. Simply put, there are too many cases per available judge. Coupled with other aspects of the civil justice system, this has led to delays that should no longer be tolerated,” he says.

In addition to considering an increase in the complement of Superior Court judges in those areas, the federal government should also undertake a structured analysis in the long term, after a consultation with the Ontario Ministry of the Attorney General, he says.

Also with respect to courts, Osborne is recommending that the monetary jurisdiction of Small Claims Court should be increased to $25,000 and that the Office of the Chief Justice of the Superior Court and other stakeholders consider whether an agent should be allowed to represent a litigant in Small Claims Court appeals and enforcement matters in the Superior or the divisional Court.

While he notes that the debate on the role of the divisional court has been ongoing for years, Osborne also suggests that the Law Commission of Ontario undertake a review of the court’s role and make recommendations regarding its future role and jurisdiction.

Under the civil justice reform project, which began in June 2006, Osborne was asked to propose options to reform the province’s civil justice system to make it more accessible and affordable for Ontarians.

His recommendations will help the Ministry of the Attorney General focus its discussion on how to further strengthen the civil justice system, and will open the door to further discussion and consultations with the judiciary and the legal community, according to a ministry spokesperson.

While previous civil justice review initiatives in the mid-90s led to reforms in the province to increase access and affordability, including an increase in the monetary limit of the Small Claims Court to $10,000, as well as case management and mandatory mediation, the government noted last year that “cost and delay continue to be cited in national and provincial reports as formidable barriers that prevent average Canadians from accessing the system.”

In addition to consulting with legal stakeholders, Osborne also took research, recent reforms in other jurisdictions, and data into account, as well as considerations relating to access to justice, proportionality, the culture of litigation, and the fact that one size does not fit all with respect to different jurisdictions.

During the consultation period last year, interested parties were asked to comment on whether the issues identified were more acute in certain regions of the province or in certain types of cases, as well as what types of reforms would best respond to the needs of unrepresented litigants.

Osborne’s report outlines several changes needed for unrepresented litigants, one of which is the fact that Ontario lawyers should be encouraged to “consider new and innovative billing methods that promote access to justice for litigants with civil legal issues who would not otherwise be able to afford counsel.”

In addition, bar associations and civil litigators should continue to implement and offer pro bono services and programs where possible, he says, while Prof. John McCamus’ 1997 recommendations with respect to legal aid should also be revisited as part of the most recent review of legal aid, announced last year.

Committees of legal service providers figure prominently in Osborne’s recommendations for unrepresented litigants, as he recommends that a committee, chaired by Pro Bono Law Ontario, should undertake an independent needs assessment study to develop a profile of civil unrepresented litigants in Ontario.

Specifically, he says, the committee should look at the “points of interaction with the civil justice system that give rise to difficulties for unrepresented litigants themselves, court administrators, and the courts.” This committee should also clarify the legal needs of unrepresented litigants and where additional services could be provided to fill gaps, Osborne suggests.

Groups such as the Ministry of the Attorney General, PBLO, the Law Society of Upper Canada, and legal aid should also work to co-ordinate the delivery of improved legal information and resources.

Also included in Osborne’s recommendations was the suggestion that counsel be required to prepare a litigation budget and review it with clients prior to starting or defending any proceeding, which he says the law society should consider making an express requirement under the Rules of Professional Conduct.

The issue of reforms with respect to the use of technology also came up during the review, as Osborne established a technology committee to consider e-discovery, electronic trials, filing of documents, and document production.

What resulted were recommendations that parties and counsel should be encouraged to explore methods of using technology to share information electronically to save time and money and the judiciary and courts administration should make reasonable efforts to accommodate requests to use technology.

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