Imagine having a civil trial, just two years after pleadings. To Ontario litigators this may seem an absurd fantasy, like a Stanley Cup for the Leafs or pulling matching socks straight out of the dryer. Four or five years, at least, is the status quo today.
And yet Ontario’s Civil Rules Review suggests that this fantasy can become standard practice. “Trial in Two,” for most two-party actions, is the aspiration animating its 281-page Final Policy Report, released in mid-December.
The Report sets out default timetables that would squeeze documentary disclosure, judicial conferences, and even pared-down examinations for discovery into 24 months, culminating in a dispositive hearing.
To speed matters along, they recommend some new tools, such as province-wide mandatory mediation and quick conferences instead of time-consuming motions. They also sharpen some sticks to punish slowpoke and unreasonable parties, eg $250/day lateness penalties.
But none of that will be enough to make Trial in Two happen consistently. Can it actually be done?
From Claim in Two to Trial in Two?
One hopeful precedent is the Limitations Act of 2002, which successfully implemented a two-year timeline on the time before claims must be issued. Prior to this successful law reform effort, many claims took much longer to produce pleadings. Achieving Trial in Two, a quarter-century later, would be not only a nice piece of symmetry but also a major access to justice breakthrough.
But the Limitations Act was able to impose its two year target by legislative fiat, simply striking claims dead if they’re out of time and can’t fit in an exception.
For Trial in Two, that’s a non-starter. It’s unjust to punish claimants alone for problems that pervade the whole system.
Hearts, Heads and Hands
Achieving this ambitious new two-year goal depends on what key players in Ontario’s civil justice system do next. It can happen if the government, the judges, and the litigators:
(i) believe that the Two Year Target has got to be hit (in their hearts),
(ii) understand what’s necessary to achieve it (in their heads), and
(iii) act accordingly (with their hands).
If not, it won’t happen.
Let’s take a look at the three groups whose choices will write the future of the Civil Rules Review experiment.
The Government of Ontario
The new model relies on early and active judicial case management. Especially important are the One Year Scheduling Conferences that would be required for every case.
But where will all the necessary judicial resources come from, in a system where the next available dates for simple motions are already often a year in the future?
While Ontario lacks the constitutional power to appoint more Superior Court judges, it can hire adjudicators to handle many tasks that SCJ judges must do now. This might include:
- heeding the Report’s call to engage senior lawyers as Case Management Officers to conduct some conferences
- creating a Civil Resolution Tribunal, (as in BC), or giving the provincial courts civil jurisdiction up to $100k (as in Quebec) in order to lighten the SCJ’s civil case load
- amending the Courts of Justice Act to reduce the expenditure of judicial resources on activities with little justice benefit, such as civil jury trials and three-judge panels for minor disputes
Judges
Trial in Two would require a philosophic shift in the judiciary.
The old model of civil judging is based on party control, liberal construal of rules, and the pursuit of justice on the merits in each case. The judge’s job is to listen to all submissions that might be relevant, then search for truth and implement justice in each motion or trial that the parties bring forward.
Under case management, on the other hand, every dispute is treated as a pressing problem, like a patient arriving in an emergency room.
It’s the judge’s job to get the problem resolved one way or another, as quickly as possible. The effort to do justice on the merits, and to be procedurally fair, must be compromised with constraints including the Trial in Two principle, and the parties’ limited money, time and psychological resources.
Instead of taking on a fundamentally different role, some judges might choose to retire.
Those who remain might have to make more time for case management:
- Some SCJ reasons for decision are beautifully crafted works of rhetoric and literature that must have taken many hours. Some judges, feeling the urgency of restoring the system’s timeliness through active case management, may spend more hours Conferencing instead of writing.
- Others may work a few more hours of overtime to fit the conferences in. The Report notes that in Manitoba some judges hear conferences “during the lunch hour or at the end of the day,” which pays off for them in a much lighter load of formal motions to hear.
- Judges might more firmly require parties to limit the length of their oral submissions and evidence, both at motions and at trials. As recently argued by three litigators in the Canadian Bar Review, making trials modestly shorter would allow many more trials to occur, as well as more conferences.
Civil Litigators
Every case confronts a lawyer with decision-points where Option A helps get the matter to either settlement or speedy adjudication, while Option B does not. There will be more such decision-points if the Civil Rules Review recommendations are adopted.
- The Report would extend mandatory mediation across the province. Option A is making a serious effort to settle in mediation; Option B is just showing up to “check the box.”
- The “Up-Front Evidence Model” calls for most evidence to be provided in written format, shortly after pleadings. Option A is investing time and money to make this happen. Option B is relying on one of the Report’s proposed escape hatches, or on judicial discretion, to get the evidence in somewhere down the road.
- At the new Directions Conferences, judges will be able to either make orders resolving procedural disputes, or else schedule Motions to decide on them later. Option A for a lawyer is to “put one’s best foot forward” in a Conference, and argue for the relief sought. Option B is to focus on trying to get judicial permission to have a Motion.
The Rules of Professional Conduct say that each lawyer must promote “the parties’ right to a fair hearing in which justice can be done.” The use of the plural “parties” is very interesting: each litigator is to seek this not only for their own client, but for all the parties involved.
The premise of the Civil Rules Review, which seems to be widely accepted in the bar, is that the current half-decade-to-trial timeline (with the attendant $50k+ legal fee bill) deprives non-affluent parties of fair hearings in which justice can be done. Arguably, it follows that litigators will be ethically required to choose Option A whenever they reasonably can. If they do so Trial in Two will be much more likely.
What’s Sauce for the Goose is Sauce for the Profs
If I’m going to blog calling for system actors to pull together to make Trial in Two a reality, I’d probably better “start with the man in the mirror.”
Teachers of civil procedure like me might be tempted to teach Trial in Two (if it’s enacted) as simply an aspiration expressed in the Rules, which might or might not affect judicial reasoning. After all, we academics are supposed to remain sceptical and avoid drinking government Kool-Aid.
But introducing civil procedure to the next generation of civil litigators seems to call for a more normative approach. If these recommendations become law, I plan to teach Trial in Two as a goal that future civil litigators really should pursue, with hearts and heads and hands.
The post From Pleadings to Trial in Two Years: All Together Now? appeared first on Slaw.