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Timing is Everything: Timetables, Case Management & Mandatory Mediation

Annette D. Jansen

It is our responsibility as lawyers to manage our cases and move them along in an efficient manner. When this is not possible, case management can help. Case management streamlines the process and helps parties move the matter along towards resolution. The quicker we can resolve cases, the better it is for us, our clients and the administration of justice.

The changes to the case management system stem from the Civil Justice Reform Project. The Government asked Mr. Justice Osborne to propose options to reform the civil justice system to make it more accessible and affordable. Justice Osborne submitted his Summary of Findings and Recommendations of the Civil Justice Reform Project to the present Attorney General, Chris Bentley, in November 2007.

In March 2008, the Civil Rules Committee began considering the recommendations. The Civil Rules Committee gave great weight to Justice Osborne’s recommendations. Many of his recommendations were implemented in the amended Rules of Civil Procedure[1].

The amendments to the Rules of Civil Procedure come into effect on January 1, 2010. These amendments are the most extensive amendments to the Rules since they came into place in 1985. This paper will discuss the amendments to the Rules regarding case management and mandatory mediations.

Case Management

Rules 77 and 78 of Rules of Civil Procedure deal with case management. These two rules are complicated and confusing.

As of January 1, 2010, Rules 77 and 78 will be revoked. The new Rule 77 will govern all case management actions. This Rule applies to actions commenced in Ottawa, Essex and Toronto. The new Rule 77 incorporates most of what was in the old Rules 77 and 78 but also adds some new elements that seek to make the process more efficient.

The “Old” Rule 77

Rule 77 governs civil case management. It applies to actions and applications commenced before July 3, 2001 in Essex and Ottawa. The Rule also applies to actions and application issued in Toronto after July 3, 2001 and prior to January 1, 2005 that are assigned to case management by a Judge, Master or the registrar.

There are two tracks - the fast track or the standard track. For the most part, the different tracks have the same procedures but different timelines. On the fast track, settlement conferences had to be scheduled within 150 days after the first defence was filed – in the standard track the time increases to 240 days. Generally speaking, the timelines are longer in the standard track.

The decision to choose between fast track and standard track is based upon the complexity of your case, the expense, public importance, the number of parties involved in the proceeding, the need for case management and the time for proper discovery and trial preparation.

You do have the option of bringing a motion to switch tracks before the close of pleadings or before the tenth day after the first Affidavit has been filed by a respondent in an application if your circumstances change as the action proceeds.[2]

In either track, once the defendant files a defence, the case is assigned to case management. The registrar will dismiss the matter as abandoned if the defendant does not file a defence and there is no final order or judgment made within 180 days of issuing the Statement of Claim.

Plaintiffs must file a timetable or request a case conference to establish a timetable within 30 days after exemption from mediation or delivery of the mediator’s report. If mediation is not required, a timetable must be filed within 180 days after the Statement of Claim is issued.[3]

Under Rule 77, motions can be made without a motion record. The moving party is required to submit a case management form. No formal order has to be entered unless directed or if there is an appeal.

After the pleadings are closed, you will have to participate in a mandatory settlement conference. No later than 90 days after the first defence is filed in fast track matters, you must attend a settlement conference. Plaintiffs are given 45 days notice of the settlement conferences. In the standard track, the settlement conference must be scheduled within 240 days after the first defence is filed.

You must file a settlement conference brief, which is very similar to a pre-trial memorandum, at least ten days before the settlement conference. A trial date is chosen at the settlement conference. A trial record has to be served and filed no later than seven days before the trial date.

A trial management conference can be scheduled after a settlement conference. This is not mandatory and is done upon request of the parties. A trial management conference form has to be filled out and filed with the Court no later than 14 days before trial or four days before the conference, whichever is earlier. At a trial management conference, the trial Judge, case management Judge or master will canvass names of witnesses and the substance of their testimony. They will explore admissions and alternative ways of presenting evidence, for example, filing reports. They will also give directions that will facilitate and expedite the trial process.

The “Old” Rule 78

Rule 78 is the Toronto Civil Case Management Pilot Project. It applies to all actions commenced in Toronto on or after December 31, 2004. There are listed exceptions to this Rule that are beyond the scope of this paper.

The intent of Rule 78 was to assign cases that could benefit from Court intervention. These cases were usually the cases that were complex, involve substantial delay, have multiple parties or are matters of public interest.

Rule 78 governs in cases that are in conflict with Rule 77 or other Rules. Unlike Rule 77, a Plaintiff cannot choose a track for the proceeding. If the matter has not been disposed of by final order or judgment and the action has not been set down for trial within two years the claim will be dismissed (instead of 180 days as in Rule 77).

Case conferences occur where it is impractical or difficult to establish a timeline. Case conferences are the same under Rule 77 and Rule 78. Mandatory mediation under Rule 24.1.01 does not apply to actions under Rule 78.

The “New” Rule 77

The key feature of the new Rule 77 is that the parties must manage the proceeding themselves to the extent that they can. You are responsible for moving your cases along expeditiously. Case management will only be provided for those proceedings where Court intervention is demonstrated.

In considering whether to assign a proceeding for case management, the Regional Senior Judge, another Judge or a Case Management Master, will consider the relevant circumstances set out in Rule 77.05(4):

1. The purpose set out in subrule 77.01(1) which is to establish a case management system that provides case management only of those proceedings for which a need for the Court’s intervention is demonstrated and only to the degree that is appropriate.

2. The complexity of the issues of fact or law.

3. The importance to the public of the issues of fact or law.

4. The number and type of parties or prospective parties, and whether they are represented.

5. The number of proceedings involving the same or similar parties or causes of action.

6. The amount of intervention by the Court that the proceeding is likely to require.

7. The time required for discovery, if applicable, and for preparation for trial or hearing.

8. In the case of an action, the number of expert witnesses and other witnesses.

9. The time required for the trial or hearing.

10. Whether there has been substantial delay in the conduct of the proceeding.[4]

In addition to the criteria listed above, designated Judges may direct that all steps in a case managed action be heard and conducted by a particular Judge, who, with the parties’ consent, may preside at the trial or hearing of the proceeding.[5]

The new Rules also allow a Judge, instead of only a case management master or case management Judge, to convene a case conference under subrule 77.08(1) and may,

· Identify the issues and separate the contested issues from the non-contested issues

· Explore methods to resolve the contested issues;

· If possible, secure the parties’ agreement on a specific schedule of events in the proceeding;

· Establish a timetable for the proceeding; and

· Review and, if necessary, amend an existing timetable.[6]

Case management motion forms and choosing a fast or standard track are removed in the new Rule 77. Costs of motions will be addressed at the end of every motion even where the motion is not contested.

Pre-trial conferences will replace settlement conferences. Rule 48.15 will now govern all dismissals of actions as abandoned. The automatic dismissals provided under the old rules no longer apply.

The new Rule 77 gives the power to manage the case back to the parties. In many cases, these rules will help you establish timelines and significantly reduce costs.

Mandatory Mediation

There are good reasons why most personal injury cases are mediated. It is more cost effective to mediate than it is to try a case. Often times, a civil case will be adjourned before the start of trial due to a lack of Judges. Criminal matters will be heard before civil matters and there are just not enough Judges to available to try all of the cases on the trial list. Sometimes a case is just too far down a trial list and will never get reached. As a result, there may be some cases where a mandatory mediation may assist in getting the matter resolved.

When Does Mandatory Mediation Apply?

Effective January 1, 2010, mandatory mediation under Rule 24.1 will apply to all new Rule 77 (case management) proceedings, as well as actions governed by Rule 24.1 immediately before January 1, 2010. This includes all actions commenced in Toronto, Ottawa and Essex.

Actions that were mediated under Section 258.6 of the Insurance Act[7] are exempt from mandatory mediation if the mediation was conducted less than a year before the delivery of the first defence in the action.[8]

When Do I Have to Mediate?

Under the amendments to Rule 24.1, mediation must take place within 180 days after the first defence has been filed, unless the Court orders otherwise. However, if your action was commenced before the rules come into force, a different rule applies. The 180 day period to conduct a mediation begins to run on January 1, 2010 for all actions that were commenced in Ottawa, Toronto and Essex before January 1, 2010.[9]

You can postpone a mediation to a later date if the parties consent to the date in writing and the consent is filed with the mediation co-ordinator.[10] If the parties do not consent you will have to bring a motion to postpone the mediation.

There are a number of considerations that the Court will look at to determine whether or not they will extend the time for mediation. The Courts will review the number of parties to an action, the state of the pleadings and the complexity of the issues in the action.

The Court will look at whether a party intends to bring a Summary Judgment motion and a Rule 21 or 22 motion.[11] The Court will also look at whether the mediation will be more likely to succeed if the 180 day period is extended to allow the parties to obtain evidence through the following:

· Rule 30 (discovery of documents)

· Rule 31 (examination of discovery)

· Rule 32 (inspection of property)

· Rule 33 (medical examination), or

· Rule 35 (examination for discovery by written questions).

The Court will decide whether or not to extend the time for mediation if they believe that given the nature of the case and the circumstances of the parties, mediation will be more successful if it were delayed.[12]

Each party to the case has to provide a statement of issues to the other parties as well as the mediator. You have to include a copy of the pleadings in the statement of issues provided to the mediator.

Who Can Mediate Your Cases?

You can choose your own mediator on consent of all parties, or choose a mediator from the roster.

The procedure to pick mediators for the roster list changed. The amendments to the Rules provide that the Chief Justice of the Superior Court of Justice will appoint a Judge or a case management master to the local mediation committee in each county[13]. Prior to this amendment, only Judges could sit on the local mediation committee. Each committee is responsible to compile a current list of mediators, monitor their performance and receive and respond to complaints about mediators named on the list.

You must pay attention to the timelines or you may lose the right to choose a mediator. If the mediation co-ordinator does not, within 180 days after the first defence has been filed,

· receive an order extending the time for mediation,

· a consent,

· a notice stating the mediator’s name and the date of the mediation,

· a mediator’s report or

· a notice that the action has been settled,

the mediation co-ordinator will pick someone from the list for you. (subject to the Court’s discretion).

If you do get an extension, be careful that the new deadline does not pass before you pick a mediator. If the time for extension has passed and the mediation co-ordinator has not received the documents listed in the paragraph above, the mediation co-ordinator shall assign a mediator from the list immediately, unless the Court orders otherwise.

You must conduct the mediation within 90 days after a mediator is picked or appointed.[14]

Who Must Attend the Mediation?

Under the old Rules, the parties and their lawyers were required to attend the mediation. Under the new Rules, if an insurer is involved, a representative of the insurer must attend the mediation session. The insured party is not required to attend the mediation.[15]

You must be on time. Each party has to attend the mediation within the first 30 minutes of the time appointed to conduct the mediation. If you are late, the mediator can cancel the mediation and file a certificate of non-compliance. The mediation co-ordinator will refer the matter to a Judge or case management master when a certificate of non-compliance is filed.[16]

You cannot set down your action until you mediate. Beginning January 1, 2010, before setting the action down for trial, you have to show the court that you mediated your case. You have to file a notice with the mediator’s name and the date of the mediation session or a mediator’s report indicating that the mediation has been concluded. These documents must be filed with the mediation co-ordinator.[17]

Conclusion

The amendments to the Rules with respect to both case management and mandatory mediation will make the management of our cases easier. Having one Judge assigned to our case from start to finish in case managed actions will increase efficiency. The Judge will be familiar with the issues in the case as the matter progresses to trial. Mandatory mediation can help shorten the length of a file. This will benefit your client, you and help save scarce judicial resources.