"If you want a 10-day trial in 2006, you can have one if you're ready to go," said Justice Todd Archibald of the Superior Court of Justice to the crowd at a recent Advocates' Society conference on case management.
To deal with backlogs and some wait times of over three years for a trial date in Toronto, regional senior Justice Warren Winkler launched a three-year pilot project on Dec. 31, 2004. Since then, Toronto has stopped automatically assigning civil cases to case management under Rule 77 of the Rules of Civil Procedure. Instead, a new regime based on the principle of "case management as necessary, not necessarily case management" has been created.
"In the early summer of 2004, it was apparent something needed to happen in Toronto or there would be a meltdown," Winkler said.
It comes down to a lack of judicial resources in Toronto and the fact that the city is home to large companies, banks, and insurance companies, said Justice Mary Anne Sanderson.
"There are too few masters and too few judges dealing with too many cases with too many delays," she said. "The court couldn't change the winds so it had to change sails."
When a party is ready to set down for trial, a pre-trial date and trial date will be assigned, with a fairly strict no-adjournment policy in place for trial dates.
"Adjournments play havoc with the system," said Master Joan Haberman of the Superior Court of Justice. "I take this personally. It's this time I've set aside for you. I have a new policy I have been using for the last few months where I will not give you a new date if you seek an adjournment."
Since its inception last year, the panel of judges noted that things seem to be moving faster now that control is back in the hands of counsel. Although some cases will still be subject to case management, it will be determined on a case-by-case basis.
"It's been tossed back into your lap and you have to get your case from A to Z with your resources," said Peter Griffin, a partner at Lenczner Slaght Royce Smith Griffin LLP.
However, judges and masters noted problems with counsel working together in a civil manner to help move cases along quickly on their own.
Griffin suggested, horror of horrors, actually picking up a telephone and calling opposing counsel to work things out and come up with workable timetables, instead of communicating via e-mail. It's too easy to fire off an angry or dismissive e-mail and press "send," he said.
"In five minutes on the phone you can save yourself from a protracted e-mail trail 10 feet long or, worse yet, a motion."
Griffin suggested counsel meet in person and perhaps go for coffee.
"It does work. It downs the barriers," he said. "And it's shorter than a lunch if it isn't going well."
It's also important to be realistic about how long you predict a trial will be and how urgent it is, said the panel.
"I'm seeing more and more requests for three-week trials for amounts of $30,000 to $40,000," said Sanderson. "That's insanity!"
If counsel think they may have a case for 100-per-cent case management, it's worth looking into a January 2005 endorsement from Master Calum MacLeod in Tibbits v. York Central Hospital et. al., said Griffin. The written decision in this medical malpractice case sets out the criteria for case management under the new regime. In essence, cases must meet one of the following:
· complex factual or legal issues;
· litigation is a matter of public interest;
· numerous parties or numerous related proceedings; or
· chronic and substantial obstruction to the timely disposition of the action.
"Finally, the advantages of Rule 77 must be weighed against the limited resources of the court and the need to allocate those resources in accordance with the needs of the day. There are a limited number of case management masters and judges and there are the ongoing demands for motions and trials," wrote MacLeod. "Currently in Toronto region there is a serious backlog on both the trial and motion lists. Each case management master has something on the order of 1,000 active actions assigned to each of them. Under those circumstances the theoretical benefits of Rule 77 may be rapidly overwhelmed and become illusory if too many cases are subject to active management.
"The practice direction calls for 'case management if necessary but not necessarily case management.' The onus is therefore on the parties seeking case management to demonstrate it is necessary in the circumstances of the particular case."
At the end of the day, said Winkler, the court's function is to help counsel do their job.
"We're there to make everyone happy, except the losers," he said. "But we even want the losers to walk away happy."