The Civil Justice Reform Context Behind British Columbia’s Expedited by mao17340


									                                   Ministry of Attorney General
                                     Justice Services Branch

       The Civil Justice Reform Context
     Behind British Columbia’s Expedited
              Litigation Rule and
     the Small Claims Court Jurisdictional
                 Limit Increase
                                     June 2005

The Civil Justice Reform Context                                  June 2005
BOB GOLDSCHMID                                                       Page 1
                       The Civil Justice Reform Context
           Behind British Columbia’s Expedited Litigation Rule and
             the Small Claims Court Jurisdictional Limit Increase

This paper was developed for the joint Continuing Legal Education/Ministry of Attorney
General conference, Restructuring Justice held in June 2005 in Vancouver, by Robert
Goldschmid, Senior Policy Analyst Ministry of Attorney General.

The Context of Civil Justice Reform                                           June 2005
BOB GOLDSCHMID                                                                   Page 2
1.0      The Goal of a Civil Justice System

The primary goal of a civil justice system is the just resolution 1 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.

2.0      The Problem (Symptoms)

The almost unanimous anecdotal 2 view is that obtaining a resolution in a British Columbia
Supreme Court civil action is prohibitively expensive, takes far too long, and is overly complex. 3
This problem is not unique to British Columbia. The Justice Review Task Force, in its Green
Paper, The Foundations of Civil Justice Reform, stated:

         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.

 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.
 I have not found any formal studies showing empirical data on the cost, delay and complexity of litigation in British
Columbia. 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.” 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.
 There is some data indicating that trials may be becoming more complex. A study by BC Supreme Court Justice
Donald Brenner showed that between 1996 and 2002, while the number of cases going to trial reduced by half,
average trial length doubled. (Brenner, “Trends in the Supreme Court of British Columbia, presented to TLABC’s
Winning at Trial Seminar, October 24, 2003 and published in The Verdict, Issue 99, December 2003 at page 58.)

The Context of Civil Justice Reform                                                                             June 2005
BOB GOLDSCHMID                                                                                                     Page 3
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

3.0        The Causes

Our common-law adversarial system of dispute resolution was not designed to be cost-effective;
it was designed to elicit the truth by a competition of adversaries. For the system to work,
lawyers must vigorously pursue a case on behalf of their clients. In other words, lawyers must
take every reasonable action allowed by the rules of court that may advance their case or
diminish their opponent’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 zealous representation must be conducted whether a case is worth millions or just enough
to be within the jurisdiction of the court. One lawyer cannot unilaterally tone down the level of
advocacy to match the value of the case, without granting the opponent an advantage.

The system also values full disclosure of information. Advocacy includes a voracious appetite
for obtaining information from the other party, often through the force and expense of a court
order. An advocate is always seeking the “smoking gun.” Also, lawyers 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

    Ontario Civil Justice Review, First Report, (March, 1995), (Chapter 11.4).
 Wayne Renke, University of Alberta, Faculty of Law and the Alberta Law Foundation, on-line, Public Legal
Education, A Guide to Canadian Law, “Litigation and the Adversary System.”
  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 party relies; which adversely affect a party’s own case; which
adversely affect another party’s case; or which support another party’s case.

The Context of Civil Justice Reform                                                                      June 2005
BOB GOLDSCHMID                                                                                              Page 4
Advocacy in today’s modern world usually also includes the advice and testimony of an expert
witness. 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 and it is
difficult for the expert to not 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 a practice of hourly billing.
Unfortunately, there is a symbiotic relationship between our adversarial system and hourly
billing. Extensive advocacy and more procedural steps are financially rewarded, whereas
efficiency is not.

All of the above is not to say that we have a terrible system that must be abandoned. In many
cases, people need a strong advocate who can use the tools of the adversarial system, such as
vigorous cross-examination and extensive discovery, in order to uphold the rule of law and
achieve justice. On the other hand, for a significant number of cases, a complex, costly and
time-consuming system is the impediment to justice. 7

4.0        A Possible Partial Solution - Proportionality

4.1 General Principles

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

Traditionally, rules of court procedure do not distinguish cases based upon their value,
complexity or importance—all cases are treated the same. Disputes, however, vary greatly in
complexity, importance to the jurisprudence of the state, and the amount in controversy.

Most jurisdictions have therefore adopted the idea that we must “match the extensiveness of the
procedure with the magnitude of the dispute.” 8 In doing so, we balance the interest of justice
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.

 This section is not meant to be an exhaustive list of all causes of cost, complexity and delay, as there are many
additional factors, such as case management issues, motion practice, and the lack of awareness, availability and
early use of other dispute resolution processes that might be more appropriate for certain cases.
    The Honourable G.L. Davies, AO, Judge of Appeal, Court of Appeal, Australia.

The Context of Civil Justice Reform                                                                        June 2005
BOB GOLDSCHMID                                                                                                Page 5
Proportionality is used both as a general overriding principle and as the basis of “multi-
tracking.” 9 An example of the broad application of proportionality as a general principle is the
new code of civil procedure in the United Kingdom. The code is guided by an “overriding
objective” of enabling the court to deal with cases justly. 10 Dealing with cases justly includes
dealing with the case in ways which are proportionate to:

(1)        the amount of money involved;
(2)        the importance of the case;
(3)        the complexity of the issues; and
(4)        the financial position of each party. 11

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. 12
The court must give effect to the overriding objective when it exercises any power under the
rules or interprets any rule. 13 The parties are required to help the court to further the overriding
objective. 14

In addition to proportionality being a guiding overarching principle of modern civil procedure,
most common law jurisdictions around the world (including the other Canadian provinces) have
enacted some form of multi-tracking, wherein expedited or simplified rules have been created
for cases of lower values.

One example is the United Kingdom’s multi-track system, which divides cases as follows:

(1)        Cases where the amount in controversy is less than 5,000 GBP (≅ $11,500 Canadian)
           are small claims. 15 These cases are given a very informal, very quick trial, with no

    Also known as “expedited proceedings,” “fast track,” “simplified proceedings” or “differential case management.”
   Civil Procedure Rule, Rule 1.1, available on-line at
  The Hong Kong Civil Justice Reform, Final Report, (2003) p. 54.suggests that the elements of proportionality
should not be specifically set out but should only be guided by “commonsense notions of reasonableness and a
sense of proportion to inform the exercise of procedural discretion.”
     Civil Procedure Rules, Rule 1.2.
   Civil Procedure Rules, Rule 1.3. 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.” Quebec, Code of
Civil Procedure, Rule 4.2.
  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.

The Context of Civil Justice Reform                                                                         June 2005
BOB GOLDSCHMID                                                                                                 Page 6
            formal rules of evidence. 16 Experts may not testify or submit reports without court
            permission. 17 The parties may agree to have the claim decided without a hearing. 18

(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; 19

            (b)        the use of a single joint expert unless there is a good reason not to do so; 20

            (c)        no oral expert evidence, unless the court determines it is in the interests of
                       justice to do so; 21
            (d)        limited discovery; 22

            (e)        a fixed (or within a fixed 3 week period) trial date within 30 weeks; 23 and

            (f)        potential limits on oral evidence and cross-examinations. 24

(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. 25

4.2 BC’s Expedited Procedure Project Rule (Rule 68)

In British Columbia, the new Expedited Procedure Project Rule (Rule 68) will put proportionality
principles into action by setting out an expedited, simplified proceeding for cases claiming less
than $100,000. 26 The rule will limit both pre-trial procedures and the evidence that can be called

     Id. Rule 27.8.
     Id. Rule 27.5.
     Id. Rule 27.10.
     Id. Rule 28.2(5) and Part 46.
     Id. Rule 28, Practice Direction 3.9(4).
   Id. Rule 28, Practice Direction 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)).
     Id. Rule 28.3.
     Id. Rule 28.2(4).
     Id. Rule 32.1, 32.52 and Rule 28, Practice Direction 8.4.
     Id. Part 29.
 While the rule does not directly address the issue of matching the extensiveness of the procedure to the non-
monetary aspects of a case, it allows parties to operate under the rule by consent, or to obtain a court order to be

The Context of Civil Justice Reform                                                                              June 2005
BOB GOLDSCHMID                                                                                                      Page 7
at trial. The specifics and operation of the rule will be presented by Master William McCallum of
the British Columbia Supreme Court.

4.3 Small Claims Jurisdictional Limit Increase

In addition to implementing Rule 68, British Columbia is expanding the jurisdictional limit of the
Small Claims Court to $25,000. 27 This will also 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. 28 Additional
information about these changes will be presented by British Columbia Provincial Court Judge
Dennis Schmidt.

5.0      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. This can be accomplished, in part, by
ensuring that the extent of the procedure is proportional to the magnitude of the dispute. The
pilot Expedited Litigation Project Rule (68) and the increase of the Small Claims jurisdictional
limits will attempt to achieve this goal.

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.
   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 British Columbia, 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
  The Notice to Mediate procedure will also be introduced in all registries for civil suits between $10,000 and

The Context of Civil Justice Reform                                                                         June 2005
BOB GOLDSCHMID                                                                                                 Page 8

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