The Superior Court’s initial three-year case-management practice directive pilot project for Toronto has been evaluated and, according to lawyers and mediators, it has met many of its goals. But some also suggest there are other changes that could be made for the future.
The “less structured” case management options of rule 78 - a pilot project introduced by way of practice direction for Toronto by then-regional senior Justice Warren Winkler - was designed to lessen the difficulties arising from the application of the previous system under rule 77, which aimed for streamlined proceedings through strict deadlines for specific events, early and active intervention of the court, and frequent attendance by counsel.
The project was introduced as a result of concerns about delays in the civil justice system in Toronto, including unacceptably long and growing wait times to obtain dates for interlocutory motions and trials, and rising costs associated with the number of steps and appearances in the early stages of a case.
Under rule 78, parties are given greater responsibility for managing actions and moving them to trial or other resolution. All cases are subject to mandatory mediation, and parties are encouraged to mediate at the earliest stage. But mandatory mediation has to begin within 90 days of the start of the action, as opposed to within 90 days after the first defence has been filed. Mandatory mediation was also expanded to include simplified rules cases.
Some other changes brought by rule 78 included partial or full case-management only where a need for the court’s intervention is shown, and pretrial conferences scheduled after the action is set for trial. Rule 77 is still available for specific circumstances or where there has been substantial delay.
A steering committee, including members of the OBA, Toronto Lawyers Association, and Advocates’ Society, has been in place since the project began.
The Toronto case-management practice direction was recently renewed for another three years, until December 2010.
In a report to Superior Court Chief Justice Heather Smith on civil case management in the Toronto region, Winkler, now chief justice of Ontario, found the “flexibility in the timing of mandatory mediation has greatly increased its effectiveness (which directly influences the case inventory in the court and reduces costs to the parties),” and with the three levels of mediation the resolution rate before trial increased significantly.
The report says that under rule 77, only 40 per cent of cases settled at the mandatory mediation stage. Following the rule 78 reforms, it notes there is no mechanism to collect data “because parties are just not reporting the results to the court,” but the consensus is the flexible timelines have resulted in increased settlements at mediation. Winkler also submitted that rule 78 be permanent.
Speaking at an OBA program, he said what was previously wrong with the system was that it was too early, as the parties weren’t ready. With the practice direction they had to change the timing, he said, to make mandatory mediation available at a time when “it was most likely to be effective.”
Winkler said a lesson from rule 78 is to keep the number of events in a piece of litigation to a mini mum and to keep the rules simple, as complicated rules generate motions. Another finding is “mediation is a cornerstone of the justice system in this province,” he said.
If the pilot were to expand outside of Toronto, he said, it should be in Newmarket and Brampton where there is a need for the rule.
Jessica Kimmel, a member of the executive of the Toronto Lawyers Association, says that anecdotally, lawyers’ perspective on the project is that it’s been successful.
“The rule actually was structured so as to provide flexibility in the time for mediation, while still requiring it to happen,” says Kimmel. “I think, from the perspective of the bar, certainly, that has actually proven to be quite productive in terms of making sure that when you do your mandatory mediation, it’s done at a point in the case where you think there’s . . . a reasonable shot at settling,” she says.
Under rule 78, they’re not going to let you go to trial without counsel reporting back that a mediation has taken place, but the court is allowing flexibility, which Kimmel says is the advantage of the way the rule was structured. She adds there haven’t been any drawbacks over the last three years since the pilot was implemented.
One of the benefits of rule 78, says Kathleen Kelly, executive director of ADR Chambers, is the parties and counsel seem to attend mediation more in a frame of mind to get the case settled, as opposed to a necessary step that they have to go through to progress their action through the court system.
However, when the project began, she says there was confusion among the court, the bar, and the mediation community regarding whether cases that were already in the system, pre-Jan. 1, 2005, still carried on under the old regime and had to go through mandatory mediation at an early stage.
“On the inception of the practice direction, which became rule 78, because of the very significant time change for the non-simplified rules, non-wrongful dismissal actions, there was a very lengthy gap from cases that were initiated in January ’05 until the mandatory mediation would be held,” she says. “So there weren’t a lot of mediations going on in ’05 and ’06, relative to what was the status before,” she says. “Essentially for everybody, it started getting really slow about mid-’05 and was slow until the spring of ’06.”
Mediators who had been in the mediation community for a longer period of time and had established a reputation “suffered but not nearly as badly as newer entrants to mediation, and the simplified rules cases and the employment termination cases were keeping a lot of people still active in the business,” says Kelly.
One change Kelly would recommend to the rule is a mechanism put in place mandating that mediators be paid for their work, as this is not currently the case.
In terms of the goals of the project - including a reduction in delays and number of appearances required, as people didn’t have to mediate within 90 days of the first defence being filed - it did meet its objectives, says Kelly. What she doesn’t know is how many of the previous attendances were to obtain a “relaxation” of the time frame.
The number of administrative attendances has decreased, resulting in cost savings for parties and time savings for the court, says Kimmel. Kelly notes that in December 2004 Winkler asked for a pool of senior lawyers to act as pretrial judges for rule 76 or simplified procedure cases, to get rid of a backlog and free up masters’ and judges’ time.
That project, she says, “really made a big impact on clearing the backlog in the rule 76 cases.”
With rule 78, Kelly says, “We’re now experiencing a relatively high proportion of cases that should settle and could settle, but for the legal fees that have been incurred because the mediation is held so far down the road from when the case was first commenced,” she says.
She says a concern is that while you can get trial dates, if two per cent go to trial and the others have to wait longer before mediation occurs, the expense of litigation has probably risen more for litigants than what was anticipated.
“I think there’s still some design that can occur that would make it far more effective and more fair,” she says.