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									                      DISCUSSION PAPER:

MAJOR THEMES OF CIVIL JUSTICE REFORM




                          Robert M. Goldschmid
                    B.C. Ministry of Attorney General
           Prepared for the Civil Justice Reform Working Group
                              January, 2006




This paper sets out ideas and opinions for consideration, public discussion
and consultation; it does not necessarily reflect government policy.
                                                     Table of Contents

1     Introduction................................................................................................................. 1
2     The Goal of a Civil Justice System............................................................................. 1
3     The Problem (Symptoms) ........................................................................................... 1
4     The Causes .................................................................................................................. 2
5     Major Areas of Reform............................................................................................... 3
6     Early Dispute Resolution ............................................................................................ 4
   6.1     Pre-litigation ....................................................................................................... 5
      6.1.1       The UK........................................................................................................ 5
      6.1.2       Australia...................................................................................................... 6
   6.2      Methods............................................................................................................... 8
      6.2.1       Adjudicative................................................................................................ 9
      6.2.2       Facilitative................................................................................................... 9
      6.2.3       Evaluative ................................................................................................. 10
   6.3      Compulsion ....................................................................................................... 12
      6.3.1       Voluntary .................................................................................................. 12
      6.3.2       Incentive Driven........................................................................................ 12
      6.3.3       Party Driven .............................................................................................. 12
      6.3.4       Ordered by Court ...................................................................................... 13
      6.3.5       Presumptively Mandatory......................................................................... 13
   6.4      Awareness ......................................................................................................... 18
   6.5      Education .......................................................................................................... 19
7     Proportionality .......................................................................................................... 19
   7.1      General Principles............................................................................................. 19
   7.2      Multi-tracking ................................................................................................... 21
   7.3      BC’s Expedited Litigation Project Rule (Rule 68) ........................................... 22
   7.4      Small Claims Jurisdictional Limit Increase ...................................................... 24
8     Case Management..................................................................................................... 24
   8.1      Timetables......................................................................................................... 24
   8.2      Conferences....................................................................................................... 25
   8.3      Preparation ........................................................................................................ 27
   8.4      Calendar Systems.............................................................................................. 27
   8.5      Case Management Issues in Toronto ................................................................ 29
9     Pre-trial Procedure .................................................................................................... 31
   9.1      Pleadings ........................................................................................................... 31
   9.2      Motions ............................................................................................................. 32
10       Pre-trial Disclosure ............................................................................................... 32
11       Experts .................................................................................................................. 33
12       Trials ..................................................................................................................... 36
13       Conclusion ............................................................................................................ 37




                                                                  ii
1 Introduction
The purpose of this paper is to provide a high level summary of civil justice reform
initiatives and recommendations in Canada, the United States, the United Kingdom,
Hong Kong, and Australia. This paper is for information and discussion purposes only.
It is not meant to recommend any particular solution or to be an exhaustive list of all
possible solutions.

2 The Goal of a Civil Justice System
The primary goal of a civil justice system is the just resolution1 of disputes through a fair
but swift process at a reasonable expense. Delay and excessive expense will negate the
value of an otherwise just resolution. Systemic delay and expense will render the system
inaccessible. While there is no absolute measure of a reasonable expense, most
jurisdictions around the world have come to realize that the cost of resolving a dispute
should be proportional to its magnitude, value, importance and complexity.

3 The Problem (Symptoms)
The almost unanimous anecdotal2 view is that obtaining a resolution in a BC Supreme
Court civil action is prohibitively expensive, takes far too long, and is overly complex.3
This problem is not unique to BC. The Justice Review Task Force, in its Green Paper,
The Foundations of Civil Justice Reform, (“Green Paper”) stated:

1
  The process used to achieve a resolution must not only be fair (a level playing field), it must be designed
to produce a just result. What then, is a just result? Just results come in two forms—rights based and
interest-based. In either case, a just result does not mean perfect justice.
   A rights-based just result is one that, to the greatest extent reasonably possible, upholds the legal rights
and legal obligations of the parties to the dispute. It usually follows from a rights-based process, where an
adjudicator duly considers the material evidence, determines the facts as accurately as possible, properly
interprets the law that pertains to the case and applies the law to those facts to determine the resolution.
   An interest-based just result is the resolution of a dispute that, to the greatest extent reasonably possible,
meets the interests of all parties to the dispute. It usually follows from an interest-based process, where a
skilled mediator or other type of facilitator elicits the interests (the goals, objectives, purposes, needs, etc.)
of the parties in a way that enables the parties to agree upon a practical resolution that serves their needs.
2
  We have not found any formal studies showing empirical data on the cost, delay and complexity of
litigation in BC. The Ontario Civil Justice Review stated, “On such an important issue, one would expect
to find a wealth of research. Surprisingly, there is little analysis or hard data available. This is true not only
for Ontario but for most jurisdictions around the world.” (Ontario, Ministry of Attorney General, Ontario
Civil Justice Review, First Report (Toronto: Queen’s Printer for Ontario, March 1995), s. 11.3, retrieved
from http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjr/. The Review states that part of the
problem is that cases disappear from the system without any information about what happened to them.
The data that we have only shows snapshots in time. The Ontario First Report did, however, estimate the
plaintiff’s cost of a three day trial to be about $38,000, not including disbursements. (s. 11.4(2)).
3
  There is some data indicating that trials may be becoming more complex. A study by BC Supreme Court
Chief Justice Donald Brenner showed that between 1996 and 2002, while the number of cases going to trial
reduced by half, average trial length doubled. (“Trends in the Supreme Court of BC,” The Verdict, Issue 99
December 2003, p. 58). (Presented to the Trial Lawyers Association of B.C., “Winning at Trial” Seminar,
October 24, 2003).


                                                        1
        Provincial, national and international reports on civil justice systems are
        all alarmingly similar. They warn that cost, delay and complexity
        constitute grave problems in the administration of justice.

A number of Ontario studies conducted in the early nineties demonstrated that litigants
with low-end claims retain little of their award after paying legal fees. When factoring in
the legal costs of both parties, the Ontario Civil Justice Review concluded:

        . . . the inference is strong that the combined legal costs of the parties to a
        lawsuit are, on average, about 3/4 of the judgment obtained; and on a
        median basis, are perhaps more than the judgment obtained.4

4 The Causes
Our common-law adversarial system of dispute resolution was not designed with cost-
effectiveness in mind; it was designed to resolve conflict by a competition of adversaries.
In this context the search for justice is conceived as a contest and “advocacy” is generally
understood to mean that the lawyer’s task is to take every possible step under the rules
that might advance the client’s case.

        The role of counsel betrays the historical links of the adversary system
        with the old system of trial by battle. The lawyer is the champion of the
        client.5

This attitude of zealous representation is brought to bear on every case, pretty much
independent of the value of the case. One lawyer cannot unilaterally tone down the level
of advocacy to correspond to the value of the case, for fear of granting the opponent an
advantage.

This approach also puts a premium on disclosure of information. Advocacy includes
getting as much information as possible from the other party, often through the force and
expense of a court order. Lawyers also do not like surprises, as it is difficult to counter
evidence without time for review and analysis. The law (dating back to the late 1800’s)
supports this approach, as the scope of discoverable information not only includes
documents that directly support one’s case or damage the other party’s case, but
documents that indirectly do so.6

4
  Ontario Civil Justice Review, First Report, s. 11.4. (See note 2).
5
  Wayne Renke, “Litigation and the Adversary System” in, Public Legal Education, A Guide to Canadian
Law, published electronically by the University of Alberta, Faculty of Law and the Alberta Law
Foundation (retrieved from http://www.law.ualberta.ca/research/courts/adversary_system.htm#return2.)
6
  The Compagnie Financière et Commerciale du Pacifique v. Peruvian Guano (1882), 11 Q.B.D. 55, 63,
which ruled that one must disclose every document which, it is reasonable to suppose, contains information
which may, either directly or indirectly, enable a party to advance his own case or to damage the opposing
party’s case. This includes documents which may fairly lead to a train of inquiry which would advance a
party's own case or damage the case of the opposing party. The Peruvian Guano approach has been
eliminated in the United Kingdom and instead, the court rules allow discovery of documents upon which a


                                                    2
Advocacy in today’s modern world frequently involves the advice and testimony of an
expert witness. Cases often become a forum for a “battle of the experts,” with the expert
witness adopting the adversarial format and opposing the other side’s expert. Given that
experts are paid by one side of the conflict or the other, they are faced with an inherent
conflict of interest when testifying and it is difficult for the expert to fail to be an
advocate for the side that has hired him or her. As an expert’s time is normally very
valuable, this is a significant cost driver.

To make matters worse, the legal community is firmly entrenched in hourly billing model
of remuneration. Extensive advocacy, whether productive or wasteful, is financially
rewarded; at least as long as there are clients willing and able to bear the cost.

Whatever the merits of this approach as a device for finding truth, and there are those
who question it on that basis, it is simply unaffordable in the modern context. G.L.
Davies, A.O., a noted Australian jurist (retired), believes that these basic features of the
adversarial approach can no longer be accepted, at least without serious qualification, as
desirable features of a system designed to provide efficient and effective justice:

        An adversarial system in this unmodified form is a relic from a period (if
        there ever was one) in which courts and parties could afford to allow the
        lawyers to determine their own course; that is, a time when those who
        litigated could afford to do so and when courts were not subject to the
        challenges imposed by the volume and increasing complexity of modern
        litigation. In an unreformed condition it cannot hope to contend with these
        and achieve the object of providing an acceptable structure for dispute
        resolution. The reality is that no court system can do so by leaving the
        parties and their representatives to their own devices; for to do so has
        resulted in unendurable delay and expense in dispute resolution for the
        parties, and those others who wait in turn in the litigation stream.7


5 Major Areas of Reform
As stated above, the primary goal of civil justice reform is the just resolution of disputes
through a fair but swift process at a reasonable expense. This paper considers some of
the major topic areas of civil justice reform that address how to achieve this goal,
including the following:

    •   Early dispute resolution

party relies; which adversely affect a party’s own case; which adversely affect another party’s case; or
which support another party’s case.
7
  G.L. Davies, A.O., “A Modified Adversary System: How Different Is It From Yours?” A paper presented
to a seminar of judges, practitioners and scholars at the Max-Planck-Institut, Hamburg, Germany, January
12, 1995, p. 2 (retrieved from
http://www.courts.qld.gov.au/publications/articles/speeches/Davies120195.pdf.)



                                                   3
    •   Proportionality
    •   Case management
    •   Pre-trial procedure reforms
    •   Pre-trial disclosure reforms
    •   Reforms related to expert testimony
    •   Reforms of trials8

6 Early Dispute Resolution
Most of the literature on civil justice reform categorizes any type of dispute resolution
that is not litigation as “alternative dispute resolution” or ADR. As discussed in the
Green Paper, however, the vast majority of disputes are not resolved by adjudication at
the conclusion of litigation— they are settled, abandoned or otherwise disposed of. We
should keep in mind that they are not settled in a vacuum, they are settled in the shadow
of litigation. The litigation controls the flow of information between the parties and the
threat of an adjudication hovers over the parties. But most estimates indicate that very
few cases follow the procedure through to adjudication:

                 The reality is that 95% to 97% of all civil cases are never tried.
                 They are settled. This seems to be the experience in Anglo-
                 Canadian-American court systems wherever located and regardless
                 of the structure which is in place to process the flow of cases
                 through the system.9

The problem then is not that parties fail to seek alternatives to adjudication by a court; the
problem is that the resolution of the case comes very late, after extensive amounts of
time, effort expense and stress have been incurred. Civil justice reform, therefore, should
not necessarily focus on “alternative” dispute resolution; it should focus on early and
cost-effective dispute resolution that is most appropriate for a particular case.

Shortening the time to resolution would not only reduce cost, but would also reduce the
stress produced by unresolved conflict.

The topic of early dispute resolution falls under the following headings:



8
  There are other key areas of civil justice reform which are not included in this paper. These include
alternative billing arrangements, reforms on assessing costs, changing legal culture, dealing with
unrepresented litigants, and using technology to promote more efficient civil justice.
9
  Ontario Civil Justice Review, First Report, s. 13.1. This estimate is repeated in the Canadian Bar
Association, Systems of Civil Justice Task Force Report, (Ottawa: CBA, 1996), Chapter 2, p. 11. The
Ontario Court Services Annual Report for 2002/2003 (Chapter 3, p. 12) states that the trial rate in Ontario
has remained stable at 2% since 1998. Studies by the Canadian Centre for Justice Statistics in the early
1990’s showed trial rates for all civil cases in Calgary, Edmonton and Ottawa of less than 2%. Current BC
data obtained by Judiciary staff from the Supreme Court Scheduling System shows that from August 1,
2004 to July 31, 2005 there were about 526 civil (non-family) trials, compared to about 49,000 civil (non-
family) filings in 2004, indicating a trial rate of less than 2%.


                                                     4
     •   Pre-litigation dispute resolution
     •   Methods
     •   Compulsion
     •   Awareness
     •   Education

6.1 Pre-litigation

Disputes are inevitable in any complex society. If addressed early and appropriately,
however, they can be prevented from escalating into full blown legal battles. Ideally,
disputes should be resolved before litigation is commenced. Measures to encourage pre-
action dispute resolution include:

     •   the use of dispute resolution clauses in contracts;
     •   the use of dispute resolution pledges, where companies, societies, governments
         and other organizations pledge not to use litigation to resolve disputes that may
         arise;
     •   encouraging businesses to adopt mechanisms to resolve disputes with their
         customers and others, such as an in-house complaints department, an ombudsman,
         etc.;
     •   requiring parties to attempt dispute resolution as a pre-requisite to filing a claim;
         and
     •   formal pre-action protocols, discussed below.

6.1.1 The UK

In the UK, pre-action protocols set out the appropriate conduct for parties at the time a
dispute arises, in the hope that such conduct will obviate the necessity of filing a claim.10
These include:

     •   sending a pre-action letter outlining the elements of one’s claim;
     •   entering into negotiations to settle the matter;
     •   exchanging information and documents to help resolve the matter; and
     •   agreeing on a joint expert.

Courts treat the protocols as the normal course of action prior to litigation and may
impose costs against someone who the judge determines unreasonably failed to follow
the protocols.11




10
  UK, Civil Procedure Rules, Pre-Action Protocols. Retrieved from:
http://www.dca.gov.uk/civil/procrules_fin/menus/protocol.htm. The UK has developed protocols for
personal injury, clinical negligence, construction and engineering disputes, defamation, professional
negligence, judicial review, disease and illness, and housing disrepair.


                                                     5
The civil justice reforms undertaken in the UK were evaluated in two reports issued by
the Department for Constitutional Affairs of the UK. The first report, entitled “Emerging
Findings: An early evaluation of the Civil Justice Reforms,”12 was issued in March 2001,
and the second, “Further Findings: A continuing evaluation of the Civil Justice
Reforms,”13 was issued in August 2002.

Both reports concluded that the pre-action protocols “are working well to promote
settlement and a culture of openness and co-operation.”14 The “Further Findings Report”
cited a study on the effectiveness of pre-action protocols, done by the Institute of
Advanced Legal Studies and the University of Westminster. The study consisted
primarily of qualitative interviews with lawyers, insurers and claim managers. For
personal injury cases, the study included a quantitative analysis. The study found that
85% of cases were settling without recourse to the courts and that most practitioners
considered the protocols to be a success in helping “focus minds on key issues at an early
stage and encourage greater openness to smooth the way to settlement.”15 Unfortunately,
however, the quantitative data for personal injury cases indicated that the overall time
from instruction to settlement remained unchanged and that both injury awards and costs
had risen following the introduction of the protocols.16

The UK pre-action protocol model was rejected in Hong Kong, because of the concern
that they would lead to a front-end loading of costs. The Hong Kong Final Report on
Civil Justice Reform (the “Hong Kong Report”),17 however, did indicate that pre-action
protocols might be useful for certain specialized cases. The report recommends that if
pre-action protocols are used the consequences of non-compliance should be more clearly
identified up-front.

6.1.2 Australia

Queensland, Australia, in response to concerns about increases in public liability
insurance premiums, passed the Personal Injuries Proceedings Act 2002 (“PIPA”)18 to:

     (a) provide for the speedy resolution of claims,
     (b) promote early settlement,

11
   Department for Constitutional Affairs (UK), “Pre-Action Protocol for Personal Injury Claims”
Department for Constitutional Affairs, at para. 1.4. Retrieved from:
http://www.dca.gov.uk/civil/procrules_fin/contents/protocols/prot_pic.htm.
12
   Retrieved from: http://www.dca.gov.uk/civil/emerge/emerge.htm
13
   Retrieved from: http://www.dca.gov.uk/civil/reform/ffreform.htm
14
   “Further Findings” at para. 3.13.
15
   “Further Findings” at para. 3.22. However, the study also found that similar responses were reported for
housing disrepair cases even though there was, at the time, no protocol in that area.
16
   Ibid.
17
   March 2004, Retrieved from: http://www.civiljustice.gov.hk
18
   Based on the pre-action protocols established in the Motor Accident Insurance Act 1994 and the Worker’s
Compensation and Rehabilitation Act 2003. PIPA has been amended by the Personal Injuries Proceedings
Amendment Bill 2002, the Civil Liability Act 2003, the Workers’ Compensation and Rehabilitation Act
2003, the Justice and Other Legislation Amendment Act 2003, the Justice and Other Legislation
Amendment Act 2004, and the Civil Liability and Other Legislation Amendment Act, 2005.


                                                    6
     (c) ensure that a person may not start a proceeding in a court without being fully
         prepared for resolution of the claim by settlement or trial,
     (d) put reasonable limits on awards of damages,
     (e) minimize the costs of claims, and
     (f) regulate inappropriate advertising and touting.19

Before filing a court action for a personal injury claim, the claimant must complete a two
stage pre-action procedure. In the first stage, the complainant must present the
respondent with a Part 1 Notice of Claim.20 The approved form contains fields for
particulars about the claimant, the incident and the nature and treatment of the injury.
The claimant must also provide the respondent with reports relating to the incident and its
causes, medical reports relating to the injury, the claimant’s medical history, and written
permission for the respondent to access records relevant to the claim.

A respondent, within one month, must respond to a part 1 Notice of Claim with details
about whether they are a proper respondent and whether they are satisfied that the Part 1
Notice of Claim complies with the rules.

The second stage is the filing of a Part 2 Notice of Claim, which must be forwarded
within two months of the respondent’s first reply to Part 1. The approved form contains
fields relevant to economic loss and any further particulars relevant to the injury. As part
of this notice claimants must provide the respondent with tax returns, any further medical
documents and an offer to settle (or reasons why the claimant is not prepared to make an
offer to settle at that time.)

Once the respondent accepts a complying Notice of Claim, the respondent must attempt
to resolve the claim within 6 months by fully responding to the complying Notice of
Claim. Besides providing any relevant documents to the claimant, the respondent must
investigate the claim, admit or deny liability, respond to any offer of settlement, make a
quantum estimate and make a written offer.

PIPA requires the mandatory exchange of information to facilitate cooperation and early
settlement.21 It also provides for the joint preparation and payment of expert reports.

PIPA prescribes mandatory pre-action settlement conferences to be held at a reasonable
time and place after the respondent has completed its second-stage response to a
complying Notice of Claim (or at any time by agreement).22 However, the conference
may be dispensed with for good reason by agreement or through an application to court.

Prior to the conference all relevant documents must be exchanged and the parties must
sign a certificate of readiness indicating that they are in all respects ready for the

19
   PIPA, s. 4
20
   The form must be filed within the earlier of 9 months after the incident or onset of symptoms or 1 month
of the claimant first instructing a lawyer to seek damages. (s.9)
21
   PIPA, Chapter 2, Part 1, Divisions 2 & 4.
22
   PIPA, Division 4.


                                                     7
conference and the trial. Among other details, the certificate of readiness must, if the
party has legal representation, state that the party’s lawyer has given the party a costs
statement containing details of incurred legal costs, an estimate of possible future legal
costs, and the potential cost implications relative to the amounts contained in the
mandatory offers and counteroffers of the claimant and the respondent.

If the claim is not settled at the conference, the parties must exchange final written offers
within 14 days and within 60 days of the conference, proceedings should be started. If a
claim proceeds to court, the mandatory final offers of the claimant and respondent must
be filed at the court in sealed envelopes. When the court decides the claim it must take
these offers into account in awarding costs.

In medical negligence cases, prior to providing a Part 1 Notice of Claim a claimant must
first provide an initial notice with details of the patient, the treatment and the
consequences of the treatment. The respondent then has 1 month to give the claimant
copies of any documents in relation to the incident. Afterwards, the claimant has one
year to provide a Part 1 Notice of Claim as set out above, along with a written opinion
(with reasons) from a medical specialist that there was a failure to meet a standard of care
and that, as a result of the failure, the claimant suffered personal injury.

PIPA also provides special provisions for the notification of claims relating to injuries to
children arising out of medical treatment. These provisions are meant to encourage the
early notification of claims on behalf of children, while ensuring that the rights of
children to claim damages for personal injuries are protected.

In addition to the Queensland personal injury pre-action rules, the Family Court of
Australia adopted pre-action protocols in 2004. The family law rules require all
prospective parties to a property or maintenance dispute to:

       •   participate in dispute resolution services, such as mediation, counselling,
           negotiation, conciliation or arbitration;
       •   write to the other parties, setting out their claim and exploring options for
           settlement; and
       •   comply, as far as practicable, with the duty of disclosure.23

Failure to comply can result in serious consequences, including monetary penalties.
Lawyers in Australia also have professional obligations to advise clients of ways of
resolving disputes without starting legal action.

6.2 Methods

Dispute resolution methods involving the assistance of a third party24 can be divided into
three categories:


23
     s. 1.05 and Schedule 1.


                                                 8
     •   Adjudicative
     •   Facilitative
     •   Evaluative

Not all of these methods will necessarily be used early in the proceedings. All of them,
however, have the potential to be used early in the proceedings and some may be used
before filing an action.

6.2.1 Adjudicative

The adjudicative varieties of dispute resolution that may be used relatively early in the
life of a dispute includes:

     •   dismissal and default;
     •   summary judgment, where the court can decide the case as a matter of law (BC
         Rule 18);
     •   summary trial, where the court can decide the case based on affidavit evidence
         and evidence produced through the discovery process (BC Rule 18A);
     •   binding arbitration, where an arbitrator is hired as a private adjudicator to hear the
         evidence and render a binding judgment;
     •   expedited litigation, where rules of discovery and other procedures are simplified
         for lower value cases (such a BC’s Expedited Litigation Project Rule—Rule
         68);25 and
     •   “real-time litigation”, where, by consent of the parties, discovery is suspended and
         witnesses are summoned to court with little or no notice for a fast and condensed
         trial.26

All of these methods of adjudicative dispute resolution (except for real-time litigation) are used
in BC and may have played a role in the decrease of the number of trials over the past several
years.27 Unfortunately, however, there is no any hard data measuring the impact of these
processes on the time required to resolve a case.

6.2.2 Facilitative

Facilitative dispute resolution involves a third party, who assists the negotiation between
the disputing parties to help them resolve their case. There are several types of
facilitative dispute resolution methods, including:

     •   mediation;
     •   judicial settlement conferences;

24
   Of course, the parties always have the option to independently negotiate their own resolution.
25
   See sections 7.2 and 7.3 below.
26
   This has been used in Toronto, Ontario, primarily for insolvency cases where time is of the essence.
27
   The number of civil (non-family) trials held in the Vancouver Law Courts (“VLC”) dropped from about
800 in 1996 to about 393 in 2002; Brenner, note 3, above.


                                                   9
     •   conferences with senior counsel or other persons who may assist parties in
         reaching an agreement, or in choosing a dispute resolution method; and
     •   collaborative agreements.

The term “mediation” means different things to different people. As used in this paper,
“mediation” means interest-based assisted negotiation, where a neutral third-party seeks
to shift the parties off of their positions and move them to reveal their goals, objectives,
purposes and needs to see if there is a way to settle the case that meets the interests of
both sides. All of the jurisdictions studied have some form of mediation available.

Settlement conferences are conducted by a judge or judicial officer who works with the
parties to explore whether there is a possibility of settlement. The judge or officer may
refer the parties to a mediator or other facilitator for further proceedings.

In Quebec, judges may attempt to reconcile the parties, if they consent, in any matter
except a matter relating to personal status or capacity or involving public policy issues. In
family matters or matters involving small claims, it is the judge's duty to attempt to
reconcile the parties.28

Some courts have experimented with making senior counsel available on certain days to
work with parties in private settlement conferences. Senior counsel can provide the
benefit of their experience to help the parties resolve the dispute.

The Collaborative Law Participation Agreement is used in a limited number of
jurisdictions, including Hamilton County, Ohio. It consists of a formal detailed
agreement to decide the dispute collaboratively and includes an agreement about the
disclosure of information. If the parties revert to litigation, their lawyers (and firms) are
disqualified from representing them.29

6.2.3 Evaluative

A third method of early dispute resolution is evaluative, which in some cases can be
backed by incentives. These include the following processes:

     •   Party driven formal offers to settle
     •   Non-binding arbitration
     •   Early neutral evaluations
             o Judicial Dispute Resolution
             o Mini-trials
             o Case evaluations

28
  Quebec Code of Civil Procedure, Rule 4.3.
29
  Hamilton County, Ohio Court of Common Pleas, Local Rule 43. A summary of a Collaborative Law
Participation Agreement may be retrieved from: http://www.collaborativelaw.com




                                                10
The party driven offer to settle is used in BC and in many other jurisdictions. It provides
a party with the opportunity to offer a settlement figure. The opposite party has a strong
incentive to accept a reasonable offer, as the failure to do better than the offer at trial can
form the basis of an increased cost award at the end of trial.

Non-binding arbitration is used in numerous US jurisdictions. It may be mandated for
certain types of cases or for cases involving certain dollar amounts. Its purpose is to
provide the parties with a quick “day-in-court” and a reality check on their case. Some
jurisdictions, such as the Northern District of New York federal court, provide an
incentive to accept (or more accurately, a disincentive to reject) an arbitration award. In
that district, if one rejects the arbitrator’s award and fails to secure a more favourable
judgement at trial, the rejecting party may be liable for costs, including the cost of the
arbitrator.30

Other varieties of evaluative procedures are all forms of what is often referred to as
“Early Neutral Evaluation” (“ENE”). ENE of some type is extensively available in the
US federal court system and in many state courts. One type is the mini-trial, which
consists of an abbreviated presentation of the evidence to a judge or to an advisory jury,
who will deliver a non-binding advisory opinion. Mini-trials are available in BC under
Rule 35(4)(j) as part of what a judge can order in a pre-trial conference, but anecdotal
evidence suggests that they are seldom used.

Judicial Dispute Resolution (JDR) is a voluntary and informal proceeding, very similar to
a mini-trial, where the judge gives a non-binding opinion on a case, based upon the
submissions of the parties. No evidence is heard, but there is usually an agreed statement
of facts filed, with briefs, excerpts of discovery transcripts and expert reports. It is
formally available in Alberta, Saskatchewan and Manitoba if a judge deems it appropriate
(and is likely used informally in other jurisdictions by judges willing to do so). It is
mostly used for family cases but is used in other matters as well. The JDR judge does not
hear any applications or the trial of the case and the JDR opinion cannot be used for any
purpose.

Another type of ENE is a non-binding evaluation conducted by lawyers experienced in
the subject matter of the case. In some of the US jurisdictions that employ case
evaluations there is a potential penalty for not accepting the evaluation. For example, in
Michigan, if a party rejects an unanimous award of a case evaluation panel31 that party
must receive an award at trial that is at least 10% better than the suggested award or the
party must pay the actual costs of the other party from the date of the rejection through
the date of trial.32




30
   US District Court for the Northern District of New York, Local Rules of Practice, Rule 83.7-7 (d-e).
31
   The panel consists of a plaintiff’s lawyer, a defense lawyer and a neutral.
32
   Michigan Court Rules, Rule 2.403.


                                                     11
6.3 Compulsion

One of the most controversial questions involved in the implementation of dispute
resolution programs is to what extent the parties should be compelled to participate in a
particular program. The levels in the range of compulsion are:

       •   voluntary;
       •   incentive driven;
       •   party driven;
       •   ordered by the court; or
       •   presumptively mandatory.

6.3.1 Voluntary

The rationale behind purely voluntary dispute resolution is that mediated or other
settlements should be reached without any coercion and that it is counter-productive to
force parties to try to settle a case that they have no interest in settling. Also, parties who
would normally settle their cases quickly on their own do not want to be forced into
another process. We suspect, however, that litigating parties, in the absence of
compulsion or incentives, will tend to adhere to the traditional, costly, time-consuming
approach to litigation.

6.3.2 Incentive Driven

The incentive driven approach allows the parties to choose whether they wish to attempt
a dispute resolution procedure, but it makes them accountable for their actions. This
approach is being tried in a Central London Civil Justice Centre pilot project, where a
selection of appropriate fast and multi-track cases are automatically referred to mediation.
The parties are free to opt out of mediation but if the judge determines at the end of the
proceeding that a party’s refusal to attempt a dispute resolution option was unreasonable,
the court may impose costs upon that party.33

The Hong Kong Report suggests that courts should always have the power to make
adverse cost orders where mediation has been unreasonably refused.

6.3.3 Party Driven

The “party-driven” approach is used in BC under the Notice to Mediate regulations. One
party may compel the other party to submit to mediation. The same approach has
recently been adopted in Alberta, where parties can file a “Request to Mediate” for all
non-family cases filed after September 1, 2004. In both Alberta and BC, when one party
files a notice to mediate, the other party must attend an initial mediation session, unless
they are granted an exemption or a postponement.


33
     Hong Kong Report, pp. 438, 458.


                                              12
The theory behind the notice to mediate approach is that cases partially self-select, so that
they are more likely to be ripe for mediation. It is also a simple, inexpensive program
that does not result in a sudden boost in demand for mediators. The problem, though, is
that too few litigants take advantage of the program and most of those that do, do so late
in the proceedings after much time, expense and effort have already been incurred.

6.3.4 Ordered by Court

Another option is to compel litigants to submit their cases to a dispute resolution
proceeding only after there has been an initial screening by a judge or judicial officer.
This officer exercises discretion based on various criteria to decide whether dispute
resolution is appropriate for a particular case and, if so, what type of dispute resolution
method is appropriate.

In Australia, the Federal Court has had the power to mandate mediation or arbitration
since 1987.34 The Australian Federal Strategy Paper recommends that this power extend
to other processes as well, such as conciliation or case appraisal. The Supreme Court of
Queensland Act of 1991 permits that court to refer disputes to mediation or case
appraisal.

In the Family Court of Australia, all cases are assigned to one or more of the following
events: an information session, mediation, a case assessment conference or a procedural
hearing. The Court may order cases involving children to mediation.

In several US jurisdictions, the judge has the discretion to order a case to mediation.35 In
the U.S. Federal District Court of Ohio (Northern District), any case may be referred for
non-binding arbitration by the court on its own initiative or by a motion by one party.36

6.3.5 Presumptively Mandatory

Saskatchewan, Ontario and some US jurisdictions employ presumptively mandatory37
mediation for most non-family civil cases. It is also used in some BC small claims
matters.

6.3.5.1 Mandatory Mediation in Saskatchewan

The first mandatory mediation program in a Canadian superior court began in
Saskatchewan in 1994.38 It was a pilot project in Regina and Swift Current and applied
to almost all non-family civil actions. The program was expanded in 1998 to Saskatoon

34
   Federal Court of Australia Act, 1976, s. 53A.
35
   This applies in many of the US federal district courts.
36
   US District Court for the Northern District of Ohio, Local Rules, Rule 16.7.
37
   There is always the ability to obtain an exemption from the court.
38
   Mandatory mediation in Saskatchewan goes back to the 1980s, when, in an effort to mitigate the impact
of the farm crises, Saskatchewan required lenders to mediate with landowners before proceeding with
foreclosure. See The Saskatchewan Farm Security Act, SS c. S-17.1, ss. 11 - 17.


                                                   13
and Prince Albert. When the program was first introduced the mediation sessions were
little more than information sessions where the mediator would only inform the parties
about mediation options and the feasibility of mediation for their particular case.39 After
some time, however, the program evolved into full mediations, which is now the norm.40
While all civil cases filed in the Queen’s Bench must attend a mediation session unless
formally exempted, there is no requirement that the parties mediate in good faith.41
Simple attendance satisfies the requirements.

A review of the program was conducted by Dr. Julie Macfarlane and Michaela Keet,
resulting in reports published in 2003 and 2005. The 2003 report recommended that the
program should remain mandatory, but with various improvements in the way the
program is conducted.42 The main findings were as follows:

     •   Mediation provided the parties with:
            o a chance to assess the credibility of the other side;
            o an appropriate forum to convey an apology;
            o a chance to tell one’s story;
            o the restoration of some relationships;
            o a complete settlement of between 16-29% of cases;43 and
            o significant time reduction for case completion, even when there was no
                settlement at mediation.
     •   The main complaints received from lawyers were that:
            o the timing of mediation was too inflexible;
            o the ability to opt-out of mediation was too inflexible;
            o mediations needed to be more evaluative;
            o mediators did not intervene strongly enough in the dispute; and
            o mediators did not follow-up enough after settlement, in drafting the
                settlement agreement and in ensuring compliance with the settlement.
     •   The main complaints received from clients were that:
            o many lawyers were pessimistic about mediation;
            o many lawyers were unprepared for the mediation; and
            o clients were not provided with enough information about the nature of the
                process prior to the mediation.

The 2005 report states that while lawyers were quite pessimistic about the program at its
inception, the culture has shifted and most lawyers now have an overall positive view of

39
   Julie Macfarlane and Michaela Keet, “Civil Justice Reform and Mandatory Civil Mediation in
Saskatchewan: Lessons from a Maturing Program” 42:3 Alberta Law Review 677 (2005), p. 683.
40
   Ibid.
41
   Ibid. pp. 681, 683.
42
   Julie Macfarlane and Michaela Keet, Learning from Experience: An Evaluation of the Saskatchewan
Queen’s Bench Mediation Program—Final Report (Regina: Saskatchewan Justice, 2003). Retrieved from:
http://www.saskjustice.gov.sk.ca/DisputeResolution/pubs/QBCivilEvaluation.pdf.
43
   The 29% represents cases “likely to settle.” Mediators in the program are required to report their results
immediately. Many cases, however, settle within a few days of the mediation. Ontario, which reports
about a 40% full settlement rate and an additional 13% partial settlement rate allows mediators to wait 10
days before reporting the outcome.


                                                     14
the program. One prevalent complaint from lawyers, however, was the lack of a
requirement to exchange information prior to the mediation session.

6.3.5.2 Mandatory Mediation in BC

In five BC registries44 certain small claims actions (selected monthly by the timing of
filing a reply45) and all construction cases46 are automatically referred to mediation.
Certain cases, most notably claims arising from motor vehicle accidents, are exempted
from mediation.47 Mediation services are provided without charge by the Court
Mediation Program (“CMP”).48 The program is funded by the Ministry of Attorney
General and administered by a non-profit society.49

The parties involved in the case must attend the mediation; lawyers may attend the
mediation. The mediator is appointed by the mediation coordinator from a roster of
approved mediators maintained by the Ministry of Attorney General.50

The overall referral rate is about 25 per cent of the total caseload from the CMP
registries.51 The overall settlement rate is about 60 per cent and the average satisfaction
with the conduct of the mediation is 4.3 on a 5 point scale, with 91 per cent of
participants indicating that they would use mediation again.52

6.3.5.3 Mandatory Mediation in Ontario
6.3.5.3.1   The ADR Centre of Ontario

In October of 1994, the ADR Centre of the Ontario Court of Justice (General Division)
was introduced in the Toronto Region as a pilot program. The results of the pilot project
were evaluated by an external team led by Dr. Julie Macfarlane of the Faculty of Law,
University of Windsor. Her report was released on November 30, 1995 and her findings
were quite positive:

     •   A majority of lawyers and clients were satisfied with the process and over 95% of
         lawyers and parties said they would participate in ADR again;
     •   62% of lawyers stated that they would not have fared better at trial than they did
         in mediation. Of those who felt they would have done better in trial, many

44
   The Small Claims Registries at Nanaimo, Robson Square-Vancouver, Surrey, North Vancouver, and
Victoria are mediation registries. (Small Claims Rules, Schedule C).
45
   For example, in Nanaimo the first 16 cases in every month in which a reply has been filed are
automatically sent to mediation.
46
   “Construction cases” are all cases that involve a claim relating to the construction, improvement or
renovation of a building.
47
   Small Claims Rules, Rule 7.2(3) and Schedule E.
48
   Which also provides mediation through a notice to mediate, or by consent provided by the parties in a
settlement conference.
49
   The BC Dispute Resolution Practicum Society.
50
   Small Claims Rule 7.2(5).
51
   Erin Shaw, “New Small Claims Mediation Rule”, Bar Talk, Vol. 15, No.3(2003), retrieved from:
http://www.cba.org/bc/cba_publications/bartalk_06_03/guest_shaw.aspx
52
   Ibid.


                                                    15
         believed that success would have been offset by the extra cost and time to get to
         trial;
     •   70% of lawyers believed that their case would have settled at a higher cost if it
         had not been referred; and
     •   a majority of lawyers considered that the referral saved legal costs to their client
         even in cases which did not settle.

6.3.5.3.2   The Ontario Civil Justice Review

The ADR pilot project was followed by the Ontario Civil Justice Review.53 The initial
report that flowed from the review recommended that early screening and evaluation
mechanisms be built into a caseflow management structure. During this screening
process a judge or judicial officer would decide (among other things) if the case should
proceed to mediation. The final report, however, decided instead that that there should be
mandatory referral of all general non-family civil cases to a three hour mediation session.
This session would be held following the delivery of the first statement of defence, with a
provision for "opting-out" only with leave of a Case Management Master or Judge.

The reasons stated for the change included the following:

     •   Screening would be too time consuming and resource intensive and would not
         necessarily be reliable.
     •   Even where there is no settlement as a result of the referral, the parties are forced
         at an early stage to evaluate the merits of their case, thereby increasing the
         opportunities for settlement.

6.3.5.3.3   Implementation of Case Management and Mandatory Mediation

In January 1999, mandatory mediation was established as a pilot project in Toronto and
Ottawa, where all case managed actions would be mediated within 90 days of the filing
of the statement of defence.54 In 2001, case management was expanded to all of Toronto
and mandatory mediation was made permanent. In 2003, case management and
mandatory mediation were expanded to Windsor.

6.3.5.3.4   Ontario Case Management Review Committee

A Case Management review committee was then established to evaluate the results of
case management and mandatory mediation.55 The review committee compiled many
statistics (for Toronto only), including the following:


53
   The First Report was completed in March 1995 and the Supplemental/Final Report in November 1996.
Retrieved from: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjr/
54
   Ontario Rules of Civil Procedure, Rule 24.1. In standard track cases, parties were able to agree to a 60
day extension and in fast track cases, extensions could only be granted by court order. Parties could also
opt out of mediation by court order.
55
   The review committee findings are published in Report of the Case Management Implementation Review
Committee (an ad hoc committee established by the Toronto Regional Senior Justice as a subcommittee of


                                                    16
    •   The rate for complete settlement of all issues floated between about 35-38% since
        1999.56 The rate for partially settled cases, though, dropped from about 20% in
        1999 to about 7 % in 2003. In 2002 and 2003 about 38% of cases settled
        completely and an additional 7% partially settled through mediation.
    •   The use of 60 day consent postponements of mediation increased from 31% in
        1999 to about 54% in 2003 and orders for extensions increased from about 4% in
        1999 to 40% in 2003.

The committee made several recommendations with respect to mandatory mediation, but
the key issue was the timing of mediation. They suggested that mandatory mediation
should only occur “when litigants have sufficient information to make an informed
decision as to a fair resolution of the litigation and before legal costs preclude early and
fair resolution.” The committee recommended that, in standard track cases (in Toronto),
the time frame for mediation should be extended from 90 to 150 days after filing of the
defence.

6.3.5.3.5   Toronto Practice Direction

As a result of the report of the Case Management Review Committee and complaints
from the Bar, the Superior Court of Justice, Toronto Region issued a Practice Direction,57
which stated that Rule 24.1 (Mandatory Mediation) would continue to apply to civil
actions in Toronto, but the timing would be very flexible:

        Mediation will continue to be mandatory. Parties are expected to conduct
        mediation at the earliest stage in the proceeding at which it is likely to be
        effective, and in any event, no later than 90 days after the action is set
        down for trial by any party. In wrongful dismissal cases and in actions
        commenced under Rule 76 (Simplified Procedure), the mediation shall
        occur within 150 days after the close of pleadings.58

6.3.5.4 Mandatory Mediation in the US

In the US there are many types of mandatory mediation. In some jurisdictions, such as
the Southern Judicial Circuit Superior Court (Georgia), mediation is mandatory unless
specifically exempted.59 In Maine, the parties are obligated to agree on some type of
ADR method, mediation being the default.60 The same rule exists in Delaware, except
that arbitration is the fall-back procedure.61



the Toronto Case Management Steering Committee), February 2004. Retrieved from:
http://www.ontariocourts.on.ca/superior-court-justice/casemanagemnet/index.htm
56
   Wider studies put this rate at about 40%.
57
   Retrieved from: http://www.ontariocourts.on.ca/superior_court_justice/notices/casemanagement.htm
58
   Ibid.
59
   Superior Court of the Southern Judicial Circuit of Georgia, Internal Operating Procedures, Rule 7.
60
   Maine Rules of Civil Procedure, Rule 16B (d) (1).
61
   Delaware Superior Court Rules of Civil Procedure, Rule 16.1 (c) (2).


                                                   17
In some US jurisdictions, arbitration is mandatory for cases with damages below a certain
monetary amount. The range of threshold amounts, however, varies from $6000 in the
New York Unified Court System to $150,000 in Florida (Middle District).62

6.4 Awareness

Assuming dispute resolution options are available in a jurisdiction, the parties to a dispute
and their counsel must be aware of the available options if they are going to use them.
Many jurisdictions in the UK and the US have enacted several measures for this purpose.

Some jurisdictions have amended their Rules of Professional Conduct to create a duty of
a lawyer to a client regarding advice on dispute resolution options. In BC, the Canadian
Bar Association originally passed a resolution that the model Code of Professional
Conduct “should be amended to require that legal counsel has a positive, continuing
obligation to canvass with each client, in a fully informed manner, all available dispute
resolution processes.” The currently passed resolution, however, has been weakened to
read:

        Whenever the case can be settled reasonably, the lawyer should advise
        and encourage the client to do so rather than commence or continue legal
        proceedings. The lawyer should consider the use of alternative dispute
        resolution (ADR) for every dispute and, if appropriate, the lawyer should
        inform the client of the ADR options and, if so instructed, take steps to
        pursue those options.

In the UK, a pilot project was tested in about 28 courts, where informational leaflets were
handed out to litigants at case conferences, informing them about mediation, including
information about where to find mediators.63 Another UK pilot project at the Manchester
Combined Court Centre uses a mediation advisor, who provides a short consultation
about mediation to the parties when they appear at a case management conference.64 The
mediation advisor also assists in setting up an appointment with a mediator, if the parties
so choose.

In Napa County, California, upon filing a claim in Superior Court the plaintiff receives an
ADR information packet, which must be served on the defendant.65

In Massachusetts federal court, lawyers must certify that they have provided their clients
with information about court-connected dispute resolution services and have discussed
with their clients the advantages and disadvantages of the various methods of dispute



62
   New York Rules of the Chief Judge, Rule 28.02; Florida Middle District federal court Local Rules, Rule
8.02.
63
   UK Department of Constitutional Affairs, Departmental Report 2003/2004, Part 2, “Justice”, p. 40.
64
   Ibid. We do not have any evaluation of these pilots.
65
   Napa County, California, Superior Court Local Rules, Rule 6.6.1.


                                                   18
resolution.66 In the Northern District of California federal court, clients must certify they
have read the ADR information package.67

The Hong Kong Report suggests that judges be required to inform parties about
mediation at an early case management conference.

In BC, moving the Notice to Mediate provisions from regulation to the Court Rules could
increase their visibility.

6.5 Education

Education on dispute resolution is needed for lawyers, dispute resolution professionals
and the public.

A multitude of dispute resolution courses are available as electives in almost all North
American law schools. The Faculty of Law at the University of Ottawa requires students
to complete a short introduction to dispute resolution course as part of their first year
curriculum.68 Alberta, Saskatchewan, and Manitoba have the same bar admission course,
which requires students to demonstrate they can represent their clients at mediation and
other dispute resolution forums.69

While there are many courses available to dispute resolution professionals, there is a lack
of uniform standards of competence. As a result, there are great variations in the skill of
such professionals.

There are a limited number of courses in dispute resolution offered in various North
American public schools and to the public at large.

7 Proportionality
7.1 General Principles

While there are many ways to attempt to reduce the costs of dispute resolution, one direct
approach would be to simplify the processes available to the disputing parties. One
cannot, however, impose procedural limits without regard to the interests of justice. The
solution therefore lies (as least partially) in the concept of proportionality.

Traditionally, rules of court procedure do not distinguish cases based on their value,
complexity or importance—all cases are treated the same. Disputes, however, vary


66
   Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution, Rule 1:18 (5).
67
   U.S District Court for the Northern District of California, Civil Local Rules, Rule 16-8 (b).
68
   The curriculum for the Faculty of Law, University of Ottawa, retrieved from:
http://www.uottawa.ca/academic/info/regist/crs/clawEN/ComLawEN-FINAL.pdf
69
   The curriculum was retrieved from the Law Society of Manitoba website:
http://www.lawsociety.mb.ca/pubdocs/CPLED_competency.pdf.


                                                     19
greatly in complexity, importance to the jurisprudence of the state, and the amount in
controversy.

Most jurisdictions have therefore endorsed the idea that we must “match the
extensiveness of the procedure with the magnitude of the dispute.”70 In doing so, the
interests of justice are balanced with cost-effectiveness in order to increase access to
justice. This is one of the most recurring themes throughout the literature on civil justice
reform. The concept applies both to the amount of procedure the parties are allowed to
invoke and to the amount of judicial management and resources the court must devote to
a case.

Proportionality is used both as a general overriding principle and as the basis of “multi-
tracking.”71 An example of the broad application of proportionality as a general principle
is the new code of civil procedure in the UK. The code is guided by an “overriding
objective” of enabling the court to deal with cases justly.72 Dealing with a case justly
means dealing with it expeditiously and fairly, saving expense, ensuring the parties are on
an equal footing, and dealing with it in ways which are proportionate to:

     •   the amount of money involved;
     •   the importance of the case;
     •   the complexity of the issues; and
     •   the financial position of each party.

The court must only allot the case a share of the court’s resources proportionate to the
magnitude of the case, while taking into account the need to allot resources to other
cases.73 The court must give effect to the overriding objective when it exercises any
power under the rules or interprets any rule.74 The parties are required to help the court
further the overriding objective.75

The court must also further the overriding objective by “actively managing cases,” which
includes encouraging co-operation, identifying the issues at an early stage, encouraging
alternative dispute resolution or otherwise assisting the parties to settle, fixing timetables,
and generally ensuring the quick, efficient and cost effective handling of the case.76




70
   The Honourable G.L. Davies, AO, Judge of Appeal, Court of Appeal, Australia, "Managing the Work of
the Courts" a paper delivered at the AIJA Asia-Pacific Courts Conference 'Managing Change', Sydney,
(1997).
71
   Also known as “expedited proceedings,” “fast track,” “simplified proceedings” or “differential case
management.”
72
   UK, Civil Procedure Rules, Rule 1.1. Retrieved from:
http://www.dca.gov.uk/civil/procrules_fin/contents/parts/part01.htm
73
   Ibid.
74
   UK, Civil Procedure Rules, Rule 1.2.
75
   Ibid. Rule 1.3.
76
   Ibid. Rule 1.4.


                                                  20
The Hong Kong Report agrees with the principle of setting out the objectives or the rules,
but suggests that they should be “underlying” objectives, not “overriding” objectives.
The “underlying” objectives are:

       •   proportionality;
       •   cost effectiveness;
       •   greater equality;
       •   facilitating settlement; and
       •   fair distribution of court resources.

The Hong Kong Report suggests that the elements of proportionality should not be
specifically set out but only guided by “commonsense notions of reasonableness and a
sense of proportion should inform the exercise of judicial discretion in the procedural
context.”77

In Quebec, the burden of ensuring proportionality is placed on the parties: “Parties must
ensure that the proceedings they choose are proportionate, in terms of the costs and time
required, to the nature and ultimate purpose of the action or application and to the
complexity of the dispute.”78

7.2 Multi-tracking

In addition to proportionality being a guiding overarching principle of modern civil
procedure most common law jurisdictions around the world, including Canada, have
enacted some form of multi-tracking where expedited or simplified rules are used for
cases of lower values.

The allocation of cases into tracks can either be done according to set rules in legislation
or by a person granted the discretion to place cases into the appropriate track. This
person could be a judge, a judicial officer, or registry staff. If cases are placed into tracks
by rule, the only consideration is the amount in controversy. If, however, a person
exercises discretion in choosing the track in which to place a case, additional criteria may
be used, such as:

       •   the complexity of the case;
       •   the number of witnesses expected to testify;
       •   the importance of the case to the jurisprudence of the state; and
       •   the impact the case may have upon other cases in the system.

One example of multi-tracking is the UK’s system, which divides cases as follows:




77
     The Hong Kong Final Report on Civil Justice Reform (2003) p. 54.
78
     Quebec, Code of Civil Procedure, Rule 4.2.


                                                    21
(1)      Cases where the amount in controversy is less than 5,000 GBP (≅ $11,500
         Canadian) are small claims.79 These cases are given a very informal, very quick
         trial, with no formal rules of evidence.80 Experts may not testify or submit reports
         without court permission.81 The parties may agree to have the claim decided
         without a hearing.82
(2)      Cases where the amount in controversy is less than 15,000 GBP (≅ $35,000
         Canadian) are fast track cases. These cases are allowed an expedited process,
         which includes:
         (a)    fixed costs;83

         (b)       the use of a single joint expert unless there is a good reason not to do so;84

         (c)       no oral expert evidence, unless the court determines it is in the interests of
                   justice to do so;85
         (d)       limited discovery;86

         (e)       a fixed (or within a fixed 3 week period) trial date within 30 weeks;87 and

         (f)       potential limits on oral evidence and cross-examinations.88
(3)      Cases involving more than 15,000 GBP are put on the “Multi-track.” Multi-track
         cases are case managed by procedural judges working in teams with other
         judges.89

Some jurisdictions divide cases into tracks based upon the type of case. In Atlanta,
Georgia, for example, medical malpractice, products liability, or cases expected to take
over 7 days of trial go to the “complex civil case division.”90

7.3 BC’s Expedited Litigation Project Rule (Rule 68)

In BC, the new Expedited Litigation Project Rule (Rule 68) will put proportionality
principles into action by setting out an expedited, simplified proceeding for cases



79
   UK Civil Procedure Rules, Rule 26.6. For personal injury actions the amount claimed for pain and
suffering must not be more than $1,000 GBP to be in the small claims track.
80
   Ibid. Rule 27.8.
81
   Ibid. Rule 27.5.
82
   Ibid. Rule 27.10.
83
   Ibid. Rule 28.2(5) and Part 46.
84
   Ibid. Practice Direction 28, s. 3.9(4).
85
   Ibid. Practice Direction 28, s. 7.2(4)(b). If oral expert evidence is to be used, it is limited to one expert
per party per field, up to 2 fields (Rule 26.6(5)).
86
   Ibid. Rule 28.3.
87
   Ibid. Rule 28.2(4).
88
   Ibid. Rule 32.1, 32.52 and Rule 28, Practice Direction 8.4.
89
   Ibid. Part 29.
90
   Atlanta Judicial Circuit Superior Court Rules, Rule 1002.


                                                       22
claiming less than $100,000.91 The rule will limit both pre-trial procedures and the
evidence that can be called at trial.

     •   The scope of documents each party is entitled to have produced as of right is more
         limited than what has been traditionally available.
     •   Jury trials are not permitted.
     •   Examinations for discovery are only allowed where both parties consent or the
         court orders. There is a two hour limit on discoveries, unless the parties agree or
         the court otherwise orders.
     •   A party may not bring a contested interlocutory application without first attending
         a case management conference at which a judge or master may make a variety of
         orders aimed at narrowing the issues in dispute and readying the case for trial.
     •   Parties are limited to calling one expert witness at trial and may only call an
         additional expert to respond to the expert evidence of an opposing party.

Rule 68 also introduces new obligations on parties to engage in an early and more
comprehensive exchange of information:

     •   Parties are required to exchange lists of witnesses and a written summary of the
         evidence.
     •   Parties may agree to or be ordered to retain a jointly instructed expert.
     •   Parties are required to prepare and exchange comprehensive trial briefs that
         summarize the position of each party on the matters at issue and the evidence to
         be called.

Rule 68 mandates that a trial management conference be held between 15 and 30 days
before trial. This conference must be conducted by a judge who may make orders aimed
at streamlining the conduct of the trial.

Proportionality as a general principle is also part of Rule 68. When asked to make an
order under the rule, the court must consider whether the proposed step or request is
reasonable in relation to the amount at issue in the action.

While the rule does not directly address the issue of matching the extensiveness of the
procedure to the non-monetary aspects of a case, the rule allows parties to operate under
the rule by consent, or to obtain a court order to be excused from the provisions of the
rule. Therefore, cases that have a large amount in controversy but are otherwise simple
cases could opt in to the rule. Cases with a lower monetary value that have important
non-monetary implications, could seek permission to be exempted from the rule.




91
  Colorado has a very similar simplified procedure rule for cases that are valued at less than $100,000.
The procedure requires early and full disclosure of evidence, disclosure of detailed witness testimony and
an expedited trial date. See Colorado Rules of Civil Procedure, Rule 16.1.


                                                    23
7.4 Small Claims Jurisdictional Limit Increase

In addition to implementing Rule 68, BC is expanding the jurisdictional limit of the
Small Claims Court to $25,000.92 This will address the issue of proportionality by
allowing cases whose value is less than $25,000 to use the simplified proceedings
available in Small Claims matters, previously only granted to cases valued at less than
$10,000.93

8 Case Management
Keeping in mind the goal of resolving cases quickly and the concept of proportionality,
cases cannot be allowed to languish in the system. Many argue that the pace of litigation
cannot be left solely to the parties. Case management shifts control over the timing of
litigation and the movement of an individual case through the system from the parties to
the court. Rules that impact the general flow of all cases through the system are
sometimes referred to as “caseflow management.”

The way a case is managed can take several forms. The basic elements of case
management include:

     •   timetables;
     •   conferences;
     •   preparation; and
     •   calendar systems.

While case management has worked well in many jurisdictions, it has had some
difficulties in the city of Toronto, which will be discussed at the end of this section.

8.1 Timetables

A key feature of case management is the creation, monitoring and enforcement of time
standards for the stages of litigation. Three possible approaches to this are to use:

     •   pre-determined timetables for all cases;
     •   consent timetables; or
     •   timetables set by a judge or judicial officer at a case conference.



92
   The Justice Modernization Statutes Amendment Act, 2004 (S.B.C. 2004, c. 65), allows the limit to be
prescribed by regulation, up to a maximum of $50,000. The Small Claims Court Monetary Limit
Regulation (B.C. Reg. 179/2005), prescribes the limit at $25,000 for all Provincial Court Registries in BC,
effective September 1, 2005. (Note that for pilot projects, the Justice Modernization Statutes Amendment
Act allows the regulation to “prescribe another amount that, for a prescribed period of time, applies in
respect of a prescribed registry of the Provincial Court.”)
93
   The Notice to Mediate procedure will also be introduced in all registries for civil suits between $10,000
and $25,000.


                                                    24
In Colorado, the required pace of civil litigation is set out in the Rules of Civil Procedure
subject to modification with leave of the court.94 In King and Pierce County,
Washington, the Court Clerk creates a case schedule at the time a case is filed, which can
be altered with leave of the court.95 In King County, the guidelines aim to dispose of
90% of civil cases within 12 months of the date of filing, 98% within 18 months, and all
cases within 24 months.

In the US federal system, Rule 16 of the Federal Rules of Civil Procedure directs each
district court judge to make a scheduling order,

     •   limiting the time allocated for joinder of parties, amendments to pleadings,
         motions, and completing discovery;
     •   limiting the extent of discovery; and
     •   setting a date for a pre-trial conference.96

In Quebec, the parties are required to negotiate an agreement as to the conduct of the
proceeding, with the expectation of completing the proceedings within 180 days (or, in
family matters, one-year).97 The agreement must cover time limits for the exchange of
exhibits, written statements in lieu of testimony, the number and length of and other
conditions relating to examinations for discovery, expert reports and other matters. The
agreement is binding on the parties, subject to their consent to modify the agreement, as
long as the modification does not contravene the 180-day time limit. If the parties cannot
agree, the court may authorize any modification it considers appropriate.98

8.2 Conferences

The vehicle through which most case management is conducted is the conference. There
are basically three types of conferences: case management, settlement, and pre-trial (or
trial management). Case management and settlement conferences are often combined
into one conference, where the discussion includes:

     •   settlement possibilities;
     •   issue simplification;
     •   admissions;
     •   joint experts;
     •   timelines;
     •   trial date.

A pre-trial or trial management conference seeks to prepare the case for trial from the
court’s perspective. The following issues are normally discussed:

94
   Colorado Rules of Civil Procedure, Rule 16.
95
   King County Superior Court Local Rules, Rule 4; Pierce County Superior Court Local Rules, Rule 1.
96
   Federal Rules of Civil Procedure, Rule 16.
97
   Quebec Code of Civil Procedure, Rule 151.1.
98
   Ibid. Rule 151.2.


                                                  25
     •   Estimated duration of the hearing
     •   Witness lists
     •   The introduction of evidence
     •   An agreed statement of facts

There are several approaches to instituting and conducting conferences. In the UK, all
cases have an early case management conference shortly after the defence is received. At
this conference timetables for major events are set, the parties are informed about dispute
resolution options and are encouraged to attempt one of the options. If the case does not
settle, the trial judge, about 8-10 weeks before the set trial date, conducts a pre-trial
conference, where the following may be discussed:

     •   settlement possibilities;
     •   referral to a dispute resolution process;
     •   the need for a more cooperative spirit and the avoidance of combativeness; and
     •   identifying and limiting the issues that need court resolution.

The Federal Court of Australia’s case management process includes a potentially
extensive conference, called a “directions hearing.” At the directions hearing, the court
provides directions about the conduct of the proceedings, including discovery, expert
reports, the use of a court-appointed expert, the exchange of witness statements, the use
of dispute resolution, etc.99 If the parties agree, the court may even determine the
matter.100

In BC, all cases that are estimated to require 20 or more days of trial are assigned to a
trial judge for case management.101 After the assignment, the trial judge holds a case
management conference in which pre-trial issues are dealt with and the scheduled trial
date is confirmed or changed. Unless it is not practical, the trial judge will hear all
further interlocutory applications filed in the matter. For civil trials that are estimated to
take between 4 and 19 days of trial (and all jury and priority trials of less than 20 days), a
pre-trial conference is held within 30 days of the trial date, to ensure that the case is ready
to proceed.102 For cases of 1 – 19 days a party may apply for cases management by letter
or a judge (or other judicial officers depending on the registry) may recommend case
management. The case management judge for these cases will not be the trial judge,
unless so assigned by the Chief Justice.103

In family law in BC, the parties must attend a judicial case conference (Rule 60E) before
they are allowed to file a contested application. BC’s new Expedited Litigation Project

99
   Australia, Federal Court Rules, Order 10, Directions Hearing, Rule 1, Directions Hearing General.
Retrieved from: http://scaletext.law.gov.au/html/pastereg/0/49/0/PR001220.htm
100
    Ibid. Rule 3.
101
    BC Supreme Court Practice Direction 21 (November 20, 1998); retrieved from
http://www.courts.gov.bc.ca/sc/practice%20directions%20and%20notices/Civil/Practice%20Direction%20-
%20Case%20Management%20-%20%20November%2020,%201998.htm.
102
    Ibid.
103
    Ibid.


                                                26
Rule104 also requires that the parties appear at a case management or trial management
conference before contested applications are filed. BC and many other jurisdictions also
have provisions that allow the court to direct the parties to appear before it for a
conference.

In Quebec, the parties must appear early in the proceedings for the “presentation of the
action.” At this appearance, the court examines the questions of law or fact at issue and
if the parties are ready to proceed, the court can hear the merits of the case. If not, the
court may hear motions, determine the number and length of examinations for discovery,
determine a timetable (if the parties have not agreed to one) and set a trial date. The
court has a general power at this conference to determine how the conduct of the
proceeding may be simplified or accelerated or the hearing shortened. This might include
hearing aspects of the proceedings separately, conducting a settlement conference,
referring the case to mediation or taking other measures that the court deems
appropriate.105

In the US federal system, under Rule 26 of the Federal Rules of Civil Procedure, counsel
must confer with each other well in advance of a pre-trial conference to discuss the basis
of their claims or defences, settlement, disclosure and discovery. 106 The process is
commonly referred to as the “meet and confer requirement.”

8.3 Preparation

One of the complaints often heard about case management is that the parties are not
prepared for the conference and, as a result, the conference may prove to be
unproductive. To combat this, some jurisdictions have tried the following:

      •   Provide the plaintiff with a case management information package at the
          commencement of proceedings, which is required to be served on the defendants
          (Ontario).
      •   Maintain and regularly update a website to provide information on case
          management and the availability of court dates.

8.4 Calendar Systems

There are two types of judicial calendaring (or docket) systems: Individual and Master.

In an individual docket system:

      •   each case is assigned to an individual judge at filing;
      •   each judge manages a defined group of cases from the beginning of the process to
          the end; and

104
    See s. 7.3, above.
105
    Quebec Code of Civil Procedure, Rules 151.4 – 151.6.
106
    Federal Rules of Civil Procedure, Rule 26 (f).


                                                   27
   •   the same judge hears a given case at each stage of the litigation process.

The advantages of an individual docket system include:

   •   greater familiarity of judges with facts and issues of cases, meaning judges are
       better able to anticipate problems and manage cases accordingly;
   •   earlier resolution of disputes;
   •   less overall delay; and
   •   reliable and certain trial dates, with fewer adjournments.

The disadvantages of an individual docket system include:

   •   higher costs;
   •   possible difficulties in ensuring that the assigned judges are available when cases
       need attention, particularly when judges sit in different locations and travel to
       various circuits;
   •   potential conflict when judges presiding over the settlement conferences will also
       be the trial judge; and
   •   possibly, that it saves court time at the expense of extra lawyer work hours, which
       results in higher legal fees.

In a master calendar system:

   •   all cases are controlled by the court registry or trial coordinator;
   •   cases are assigned to different judges at different times for different purposes,
       depending on which judge is available; and
   •   after an event occurs, the case goes back into a pool until the next event occurs, at
       which point it is reassigned, likely to a different judge.

The advantages of a master calendar system are:

   •   it requires fewer judicial resources as monitoring is done by court staff;
   •   court staff acquire familiarity with cases;
   •   cases progress to trial quickly and inexpensively; and
   •   a fixed, certain timetable exists for all steps in the proceeding.

The disadvantages of a master calendar system are:

   •   court resources may not be available for monitoring cases;
   •   judges are not familiar with the cases they will by trying;
   •   there is potential for delay, if there is a lack of judicial resources when cases need
       attention; and




                                             28
      •   greater complexity in the administration of the court system.107

A hybrid of the master and individual calendaring systems is a system that defaults to a
master calendar, but allows for an individual calendar when merited. In BC, as discussed
above in section 8.2, all cases that are estimated to require 20 or more days of trial are
assigned to a trial judge for individual case management.108

In Quebec, the chief judge (or chief justice) may, on his or her own initiative or on
request, order “special case management.” In special case management a judge is
appointed to see to the conduct of the proceeding. The designated judge convenes a case
management conference, disposes of all applications, holds a pre-trial conference, and
presides over the trial.109

The Hong Kong Report recommends that an individual docket system be used for special
cases, including commercial, personal injury, construction, and constitutional and
administrative.

The Australian Law Reform Commission recommended an individual docket system for
federal cases only.

8.5 Case Management Issues in Toronto

Case Management in Ontario was introduced in 1997 under Ontario Rules of Civil
Procedure, Rule 77, for civil, non-family proceedings110 in Ottawa and partially in
Toronto. In 2001 it was expanded to all eligible cases in Toronto and in 2003 it was
introduced in Windsor.

Rule 77 was established to:

      •   reduce delay and cost;
      •   facilitate early and fair settlements; and
      •   bring cases to an expeditious, but just resolution.

The rule consists of the following steps:

      1. Commencement of proceedings:
           a. Plaintiff chooses the fast or standard track.

107
    General sources for this section include Australia Law Reform Commission, Issues Paper, “Review of
the Adversarial System of Litigation” (1997), retrieved from: The Australian Law Reform Commission
http://www.austlii.edu.au/au/other/alrc/publications/issues/20/ALRCIP20.html and Doris I. Wilson,
“Managing Litigation in Canada,” Canadian Forum on Civil Justice, retrieved from: http://www.cfcj-
fcjc.org/issue_5/n5-dwilson.htm#dw.
108
    BC Supreme Court Practice Direction 21 (November 20, 1998).
109
    Quebec Code of Civil Procedure, Rules 151.11 – 151.13.
110
    Bankruptcy, class proceedings, commercial list, estates, family and construction lien matters are
excluded.


                                                  29
                b. A case management judge or a master may transfer the case to a different
                   track.
       2.   All case managed actions were subject to mandatory mediation under rule 24.1
            within 90 days.111
       3.   Timetables (a schedule for the completion of events, such as document exchange,
            discovery, etc.) must be filed by the plaintiff, or the plaintiff must request a case
            conference to set a timetable within 30 days after the mediation report is filed (or
            an exemption from mediation is obtained).
       4.   Case conference
                a. The case conference creates or amends timetables and explores methods of
                   resolving contested issues.
                b. The case management judge or master may convene a case conference
                   upon request or on their own initiative.
       5.   Motions
                a. The case management judge or master hears motions.
                b. Motions may be heard in person, by fax, telephone or video conference.
                c. No formal order is entered to resolve the motion; the case management
                   judge or master records the disposition.
       6.   Settlement conference
                a. A settlement conference is scheduled automatically by the registrar:
                        i. Fast track─ within 150 days of first defence.
                       ii. Standard track─ within 240 days of first defence.
                b. Briefs are filed prior to the conference.
                c. All discovery must be completed before the conference.
                d. A trial date is set.
       7.   Trial management conference
                a. A trial management conference may be held upon request of a party or on
                   the court’s own initiative.
                b. The purpose of the conference is to arrange for the optimum use of trial
                   time.
       8.   Case management concludes when the trial begins or the when the case is settled.

In 2004, a Case Management Implementation Review Committee112 examined the regime
and determined that there were several problems with the system, including “rising costs
occasioned by the increasing number of formal steps and appearances which must be
undertaken (particularly at the early stages) and the decreasing ability of counsel and
parties to determine on a case-by-case basis how and when to move their cases along.

The committee found that:

       •    timelines were often not realistic;
       •    there were too many events that required booking, data entry, and tracking;
       •    there was excessive “churning” of files, increasing costs; and

111
      But are no longer, as a result of the Practice Direction, discussed above in sections 6.3.5.3.5.
112
      As discussed above under section 6.3.5.3.4.


                                                         30
      •   cases were often hurried to a settlement conference without any trial date being
          available within a reasonable time after the conference.

As a result of the committee’s findings and complaints from the Bar, the Superior Court
of Justice, Toronto Region issued a practice direction, effective December 31, 2004,
requiring counsel to “re-assume greater responsibility for organizing their own cases and
for moving them towards some form of resolution.” The Practice Direction halts the
automatic assignment of cases to case management. Instead, the Practice Direction
requires a modified form of case management be applied to individual cases, as and when
required by the needs of that case.

While the court expects litigants to organize discoveries and other pre-trial steps in their
own cases, the court will intervene on the request of any party to prevent delay or
obstruction by litigants. Where the court determines it is advisable, the full provisions of
Rule 77 will be applied to a proceeding.

While the implementation of case management has been problematic in Toronto, there
has been no indication of similar problems in the other areas where Rule 77 has been
implemented (Ottawa and Windsor). This is believed to be the result of the legal cultures
in each city. In Toronto, there was resistance to case management and mandatory
mediation from the start, whereas in Ottawa, the bench and bar have supported the
process. Also, Toronto has a very large number of cases, which are more difficult to
administer.113

9 Pre-trial Procedure
The civil justice initiatives involving pre-trial procedure focus on pleadings and motions.
(Pre-trial disclosure is discussed separately.)

9.1 Pleadings

The main civil justice reforms regarding pleadings are initiatives to limit the number of
ways in which to start an action and improve the content of pleadings. Jurisdictions that
have numerous ways in which to commence proceedings have tried to reduce these to one
or two forms of action for simplicity.



113
   Julie Macfarlane, “Culture Change? Commercial Litigators and the Ontario Mandatory Mediation
Program” (Paper prepared for the Law Commission of Canada, 2001). Retrieved from: Law Commission of
Canada, http://www.lcc.gc.ca/pdf/macfarlane.pdf, pp. 87-88. She theorized that this could be a result of the
fact that mediation has been mandatory longer in Ottawa (though mediation was introduced in both cities in
1997, in Toronto it did not apply to all cases until 2001). She also cited the leadership role of the Ottawa
judiciary in promoting the program. Finally, she noted that adjournments of mediation (i.e. until after
discovery) were more readily available in Ottawa than in Toronto, a fact which she said “contributes to the
general sentiment of resentment toward the program.”



                                                    31
Many jurisdictions report that the facts of cases are not clearly set out in the statement of
claim and that replies do not clearly state the reasons for denials. Overall, one is unable
to clearly identify the issues from the pleadings. The Hong Kong Report states that bare
denials tell you nothing about a defendant's case. The report suggests requiring
defendants to state their version of events or otherwise give their reasons why the
plaintiff’s version is not accepted.

In the US federal system, counsel is required to certify that there is a reasonable prospect
of success of the claim or defence. In Australia, the Federal Strategy Paper recommends
taking this same approach.

9.2 Motions

The other focus of civil justice reform in pre-trial procedure is motion practice. The
suggestions for improvement include the following:

       •   Require a case conference before any contested motions are filed (BC rules 60E
           and 68).
       •   Stagger start times— many courts schedule all motions at a certain time, requiring
           counsel to wait for some time before their case is called.
       •   Limit written material— many judges complain that they are sometimes
           inundated with supporting material for motions and that they do not have the
           resources to review the material.
       •   Decide without court appearances.
               o In some courts in California, the parties submit all motions and supporting
                  materials in writing. The court then issues a written decision. At that
                  point, a party aggrieved by the decision may request an oral hearing.
               o The use of teleconferencing.

10 Pre-trial Disclosure
Rules requiring pre-trial disclosure of documents and oral discovery were intended to
prevent “trial by ambush.” However, many lawyers have commented that the cure is
worse than the disease. Part of the problem lies in the broad rules of relevance applied
from the case of Peruvian Guano.114 In that case, the court ruled that a litigant should not
only be able to discover documents that directly support one’s case or damage the other
parties case, but should also be able to discover documents that indirectly do so.

The Peruvian Guano approach has been eliminated in the UK and instead, the court rules
allow discovery of documents:

       •   upon which a party relies;
       •   which adversely affect a party’s own case;

114
      See note 6, above.



                                               32
       •   which adversely affect another party’s case; or
       •   which support another party’s case.

The Hong Kong Report, however, suggests that overproduction of documents is not a
problem; the problem in Hong Kong is more in the failure to disclose validly requested
documents. Hong Kong will therefore not alter the Peruvian Guano rule.

Generally, the problem of pre-trial disclosure is a proportionality issue. As a result, many
jurisdictions, including BC, are (or will be) limiting discovery for fast track cases. Oral
exams for discovery may be limited by:

       •   the time frame in which they can occur;
       •   their length;
       •   the number of examinations that may be taken; and
       •   the scope of relevance.

Additionally limits have been suggested for the production of documents and
interrogatories, with some suggesting that interrogatories should be eliminated. In the
UK, fast track cases have no interrogatories and oral discovery is only allowed with leave
of court.

In jurisdictions that require an exchange of witness statements, the exchange is limited in
different tracks.

11 Experts
Assuming that a case is not able to achieve an early settlement and does need to be
adjudicated by a court, one of the major expenses involved in litigation is the cost of
expert witnesses. Cases can often come down to the “battle of the experts,” with eminent
scholars completely disagreeing with one another. Given that experts are paid by one
side of the conflict or the other, experts are faced with an inherent conflict of interest
when testifying. As a result, jurisdictions have tried two key approaches:

       •   Provide that experts have a duty to the court that overrides any obligation to the
           person instructing or paying them.
       •   Use a single joint expert when possible.

In the UK, the rules of court state, “It is the duty of an expert to help the court on the
matters within his expertise. . . This duty overrides any obligation to the person from
whom he has received instructions or by whom he is paid.115 The Hong Kong Final
Report vigorously supports such a rule.




115
      UK, Rules of Civil Procedure 35.3.


                                                33
Expert evidence in the UK is to be given in a written report unless the court directs
otherwise and, if a claim is on the fast track, the court will not direct an expert to attend a
hearing unless it is necessary to do so in the interests of justice.

The UK has also instituted a rule on joint experts.116 It allows the court to direct that the
evidence on a particular issue be given by one expert only. If the parties cannot agree on
who that expert should be, the court may select the expert from a list prepared by the
parties or select the expert in whatever manner the court sees fit.

Where the court orders a single joint expert, the parties may each give instructions to the
expert, a copy of which must be sent to the other parties.117 The court may give
directions about the payment of the expert’s fees and any inspection, examination or
experiments which the expert wishes to carry out. Unless the court otherwise directs, the
instructing parties are jointly and severally liable for the payment of the expert’s fees and
expenses.

The first UK evaluation report, “Emerging Findings,” relying primarily on anecdotal
evidence, suggests that most stakeholders believe that the reforms in this area have
helped to promote early settlement and a less adversarial approach to litigation.118

There remains some doubt, however, as to whether the reforms are resulting in reduced
costs. A survey of British Orthopaedic Association members reported that half of all
members said they were submitting the same number of expert reports as before (while a
further quarter reported more such work than before the reforms).119 Furthermore, one
law firm reported that the requirement of a single joint expert has caused some parties to
hire their own “shadow expert”, resulting in greater costs to parties.120

The subsequent “Further Findings” report confirmed many of these findings.
Additionally, the “Further Findings” report had access to a survey of the Law Society’s
“Woolf Network”. This survey reported a high level of satisfaction with the quality of
appointed experts (91%), but a majority of respondents (56%) also expressed some
concerns about the use of single joint experts, with the possibility of increased costs
being a frequently mentioned comment.121 Furthermore, the same survey indicated that
while most lawyers (82%) felt single joint experts were appropriate in fast-track cases, far
fewer lawyers (54%) thought they were appropriate in the more complex multi-track
cases. Again, the possibility of increased costs was mentioned as a reason behind their
concerns.122



116
     UK, Rules of Civil Procedure 35.7.
117
     Ibid. 35.8.
118
    “Emerging Findings”, at paras 4.21-4.22, 4.25-4.26 (see note 12).
119
     Ibid. para. 4.24.
120
     Ibid. para. 4.23.
121
     “Further findings” at para. 4.27 (see note 13).
122
     Ibid. para. 4.28.



                                                     34
Similar rules are also in place in Nova Scotia.123 The Nova Scotia rules state, “Where
independent technical evidence would appear to be required, the court may at any time
appoint one or more independent experts to inquire and report on any question of fact or
opinion not involving questions of law or construction.” Unless the parties agree on an
expert, the expert is chosen by the court and the expert’s instructions are settled by the
court. The Nova Scotia Rules require the expert to send his report to the court, which
forwards it to the parties. The court may direct the expert to make a supplemental report.
A party may apply to the court for leave to cross-examine the expert on his report.
Where a court expert is appointed, any party may call one expert witness to rebut
evidence of the court appointed expert.

In BC, under Rule 32A, the court may appoint an independent expert on any relevant
question. The court may choose the expert if the parties cannot agree upon one. The
court also, after consulting with the parties, instructs the expert. Anecdotal evidence
suggests that this rule is not often used. The new Expedited Litigation Project Rule
(Rule 68, discussed above in section 7.3) also allows the court to order the parties to use a
single joint expert.

The Hong Kong Report indicates that joint experts would only be useful in limited
circumstances and should only be ordered if the parties agree or if one party’s refusal to
agree is unreasonable.

In Australia, the Queensland courts have taken a more radical approach. Mr. Justice
Davies, recently retired from the Queensland Court of Appeal, has been an outspoken
advocate of reform in this area for over a decade. He identified three major reasons why
change from the traditional approach was necessary:124

      •   Adversarial Bias and Polarization— the natural human tendency to feel the need
          to do your best for the side you represent results in the polarization of opinions
          and may result in a distortion of both the real question and the real answer.
      •   Complexity—the more complex the question the harder it is for the non-expert
          judge to determine the extent to which contradictory expert opinions are biased.
      •   Cost—there is waste and duplication in selecting and discarding experts,
          preparing experts for trial and cross-examining opposing experts.

In late 2004, Queensland adopted new rules for the use of joint experts.125 These new
rules contain several key principles that answer some of the typical criticisms of joint
expert rules. Most important is that an expert may not only be appointed during
litigation, but may be appointed before the commencement of litigation. This is an

123
    Civil Procedure Rules, Nova Scotia, Rule 23.
124
    G. L. Davies, A.O. “Court Appointed Experts”, a paper delivered at the British Columbia Continuing
Legal Education conference entitled “Restructuring Justice: Current Reality Future Directions” June 9,
1995.. See also, Justice Margaret Wilson, “The New Expert Witness Rules”, a breakfast address to
Australian Insurance Law Association, Brisbane Club, Thursday October 28, 2004.
125
    Uniform Civil Procedure Amendment Rule (No. 1) 2004, section 7, Part 5 – Expert Evidence. Retrieved
from: http://www.legislation.qld.gov.au/LEGISLTN/SLS/2004/04SL115.pdf


                                                  35
essential feature of the new rules as it answers the criticism that by the time the court
appoints an expert the parties have already hired their own experts.

Whether appointed pre or post commencement of litigation, the same rules apply: The
parties can either agree upon the expert or, if unable to do so, one of the parties may
apply to have the court appoint the expert. Unless the court otherwise orders, the expert
so appointed will be the only expert who may give evidence in the proceeding.

Another essential feature of the new rules is that the court may appoint a second expert if
satisfied that there is additional expert opinion that commands peer acceptance and that
may be material to deciding the issue. A second expert may also be appointed where the
second expert knows of matters not known by the first expert or under other special
circumstances. This answers the criticism that single experts prevent genuine differences
of opinion amongst experts.

The duty of the expert witness is to the court and this duty overrides any obligation the
witness may have to any party or anyone else who is liable for the expert’s fee. The
report must be addressed to and delivered to the court.

12 Trials
The last remaining piece of civil justice reform is the trial itself. Overall, there has not
been a great deal of effort in civil justice reform spent on improving trials as very few
cases typically get to trial. We must keep in mind, however, that part of the reason cases
do not get to trial is because of the expense, complexity and uncertain outcome of trials.
There are many possibilities for trial methods that do not follow the traditional
adversarial mode of trial (including the process used by inquisitorial systems) but this
discussion is outside of the scope of this paper.

Some of the recommendations for the reform of trials are to:

   •   bifurcate trials;
   •   reduce or eliminate juries; and
   •   train judges as specialists in certain areas.

While these recommendations all require separate papers, a brief description follows:

Bifurcated trials involves splitting a case into its component parts, possibly in tandem
with case management, and trying each part individually. A typical division would be a
separate hearing on liability and damages. This has certain advantages in tort cases,
where the case may be substantially delayed due to the uncertainty about the permanent
nature of a plaintiff’s injuries. As a result, the entire case is delayed and witness
memories of liability issues fade. The possibility of settlement is also reduced if there is
a significant dispute about liability. The disadvantage is that the bifurcation may result in




                                              36
duplicative effort. Bifurcated trials are available in some US jurisdictions, including
Delaware federal court, California state courts and the New York Court of Claims.126

Reducing or eliminating the availability of juries may be controversial, as some consider
the jury to be a fundamental aspect of our democratic system. Others argue that while it
is important to allow juries to judge criminal defendants, the civil jury trial is inefficient,
inaccurate and unnecessary.

The use of specialized judges would have certain advantages, such as the ability of judges
to develop expertise, leading to increased efficiency and uniformity. Specialization,
though, has disadvantages, such as training costs, judicial isolation, access issues, and
interference with circuiting.

13 Conclusion
As stated above, the primary goal of civil justice reform is the just resolution of disputes
through a fair but swift process at a reasonable expense. From our review of common-
law civil justice systems around the world, this can be accomplished by three broad
principles:

      1. Promote the use of early dispute resolution:
            a. Early dispute resolution may or may not be mandated, but if not, the
                public must be made aware of the possible methods of dispute resolution,
                and these dispute resolution processes must be available at a reasonable
                cost.
            b. Early dispute resolution can take many forms, such as adjudicative,
                evaluative, facilitative or a combination of these.
      2. Ensure proportionality in litigation:
            a. For cases that proceed through the court system, ensure that the extent of
                the procedure, including such things as document production,
                examinations for discovery and the use of expert witnesses, is proportional
                to the magnitude of the dispute.
            b. This may be accomplished by:
                     i. making proportionality a general guiding principle for the conduct
                        of litigation; and
                    ii. by setting out different procedural tracks for less complicated or
                        less valued cases.
      3. Employ some level of case management:
            a. Cases cannot be permitted to languish in the system without timelines or
                directions.
            b. Judges must assist counsel and the parties in finding the approach best
                suited to the circumstances of the case, which will achieve a just, speedy
                and cost-effective resolution.

126
   U.S. District Court for Delaware, Local Rules, Rule 16.1 (b); California Rules of Court, Rule 212 (e)
(10); Uniform Rules for the New York Court of Claims, Rule 206.19.


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