Member Consultations

In an effort to ensure our members' voices are heard, we have established this Member Consultation page. These forums will allow TAS members to not only voice their opinions on a specific topic but also see what other members are saying. We hope you will participate and share your thoughts with us here.
Posted October 25, 2019 by TAS Webmaster
It is a central mandate of The Advocates' Society to foster civility among members of the bar. We believe that civility is essential to the proper functioning of the Canadian judicial system.

The Principles of Professionalism for Advocates and the Principles of Civility for Advocates are a keystone publication of The Advocates' Society. Published in 2001 and updated in 2009, these documents provide guidance to advocates beyond what is found in rules of professional conduct. In 2013, the Young Advocates' Standing Committee published Best Practices to provide practical solutions to counsel facing issues of incivility.

The Advocates' Society is currently revising the Principles and the Best Practices to ensure they apply nationwide and reflect the current realities of practising litigation in Canada.

TAS is seeking our members' feedback and ideas on the following three questions:
  1. What changes to litigation practice in Canada have occurred over the last 20 years that create challenges for the civility and professionalism of advocates?
  2. Have you encountered any common types of incivility or lack of professionalism that you think should be addressed by the Principles or Best Practices?
  3. Are there any changes or improvements you would like TAS to make to existing principles or best practices? (If applicable, please provide a reference to a specific principle or best practice.)
Your feedback will be considered by the Task Force recommending revisions to TAS's Board of Directors in early 2020.

Please fill in the form below to share your thoughts with other members of TAS, or email suggestions directly to Suzanne Amiel, Policy Lawyer, suzanne@advocates.ca. Please provide us with your views by November 11, 2019.

Don't miss our Civility in Changing Times program coming up in December 2019. Click here for more information and to register.
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Posted January 10, 2019 by TAS Webmaster
On January 31, TAS President Brian Gover will attend a meeting with The Honourable George R. Strathy, Chief Justice of Ontario; The Honourable Caroline Mulroney, Attorney General of Ontario; and representatives from other bar associations and legal organizations. The meeting will involve a discussion of proposed improvements to Ontario's justice system, and specifically a discussion of three questions:

  1. If there was one change that you could make to the Ontario justice system that would have no cost, what would it be?
  2. If there was one change that you could make to the Ontario justice system that would cost $10 million or less, what would it be?
  3. If there was an unlimited budget, what change would you make to the Ontario justice system?
TAS welcomes suggestions from our members.  We want to hear your ideas on how you would answer these questions and how you would improve the Ontario justice system. Leave your comments below by Monday, January 21, 2019.

Hear more from our President, Brian Gover:
17 Replies
How would you change the Ontario justice system?
Posted January 14, 2019 by Ryan A. Murray

1. Eliminate jury trials for all civil claims of less than $500,000. This would speed up trials and provide more certainty and consistency in the trial verdicts. Increase the Small Claims limit to $75,000 and the Simplified Procedure limits to $250,000. Enforce strict limits on the number of experts called in a case unless the value of the case exceeds $500,000. All of these limits should be adjusted annually for inflation. Make the parties in civil claims who file a jury notice pay a daily fee for using a jury (e.g. $1,000 per day). This will allow jurors to receive some reasonable compensation for their time and eliminate a propensity of some counsel to choose jury trials without giving any thought to whether it is necessary or appropriate.

2. All court documents should be filed and served electronically.
 
3. In my experience, the single greatest motivator for parties to settle is an early, fixed trial date. This can be accomplished with a combination of strict enforcement of the Rules of Civil Procedure and robust case management. This plan would likely involve the hiring of additional case management masters to meet its goal.

As soon as pleadings are closed, the Court would appoint a case management judge and master. The CM judge would preside at the trial. The judge and master would work together to shepherd the lawsuit forward, with as many of the motions and administrative matters as possible being dealt with by the CM master. Telephone conferences and written submissions would be used wherever possible. The CM master should also preside over the pre-trial conference.

Within 14 days of pleadings closing, the Master should have a conference call with counsel and issue a scheduling order that sets dates for production, discovery completion, mediation and a pre-trial conference. The order should provide that all motions are to be filed before the pre-trial conference; and advise counsel about their duties during discovery, the final pre-trial conference, and the trial. The trial date would be set at the pre-trial conference, if possible, for a date 3-4 months after the pre-trial. It is important that all of these dates are fixed and not easily adjourned or extended.

All lawyers should meet before the pre-trial conference. They should agree on uncontested facts.  At the pre-trial they should bring their (1) their witness lists, (2) exhibit lists, (3) exhibits ready for filing, and (4) a written list of uncontested facts.

All motions, except for summary judgment, should be dealt with in writing by a case management master. A lawyer should have to certify in their motion materials that they have spoken to opposing counsel before filing the motion in an attempt to narrow or eliminate any issues presented by the motion.

I believe that these changes would result in civil cases being tried in 12-18 months instead of the current 5-8 years after the claim was issued. This system already exists in many of the U.S. District Courts and has proved effective. 

Thank you for considering these suggestions.

How would you change the Ontario Justice System
Posted January 14, 2019 by John Ormston
1) Eliminate examinations for discovery.  Litigants in England seem to be able to get justice without them.  Such a waste of court time with the motions that inevitably flow from them.  If the system is interested in achieving resolutions, get matters to trial asap.  Nothing focuses the mind of a litigant and their counsel like walking into the court house to start a trial.  Up until that point it is mostly gamesmanship. 
2) I am not sure how much this would cost given the federal government's debacle with the Phoenix pay system, but put the whole system on line.  The idea that we pay people to line up and file paper copies of things is crazy and of course there are many other examples in the civil and criminal system.
3) See item (2) above.  not sure if this would cost less than or more than $10 Million.
Ontario Justice System Refor
Posted January 14, 2019 by Sean T. Miller
To whom it may concern:

Please accept the following comments and suggestions to the three questions posed for the January 21, 2019 meeting.

1. With respect to a change to the Ontario justice system that would have zero monetary cost, I propose that most family law disputes be removed from the Court system. An administrative tribunal can be created which can deal with these disputes in a more expeditious, and simpler for self-reprsented litigants. I appreciate that may cost some money. So, as an alternative no cost solution I propose that the Rules of Civil Procedure be amended so that Judges can restrict legnthy testimony and reduce overall trial time. Civil personal injury trials take too long. Justice is not being served. The Legislature needs to step in to limit these long trials but forcing counsel to get out the best evidence in the shortest amount of time.

 I also propose we abandon the supernumerary system. I don't see why old judges should be entitled to hundreds of thousands of dollars in pay, to work 12 weeks per year. If the Judge is not willing to work full-time, let us hire someone else. There is already a pension in place for the judiciary. I can't imagine retired judges are truly wanting for income.

2. I have little appreciation for how far $10 million will go. In addition to the change to the family law system suggested above, I propose that we hire more judges to work through the case back log. 

3. London, Ontario requires a new courthouse, or at the least, a major renovation to our existing building. It is not accessible, has few spaces to break out for pre-trials, or to prepare witnesses, and is generally much like a dungeon. In the fantasy world of unlimited budget, I would like to see a completely electronic judicial system, from filing, to document management, stream-lined from the bench to the bar.

Thank you for your time.





 


Changes to Ontario justice system
Posted January 14, 2019 by Stephen J. Wojciechowski
I participated in the Civil Trials Task Force which in June 2015 resulted in the publication and widespread distribution of The Advocates’ Society “Best Practices for Civil Trials”.  This Task Force was struck in early 2014, and involved the participation of lawyers and judges from all regions of Ontario, as well as academics and jurists from jurisdiction outside Ontario and Canada. This group was brought together to address the significant problem of lengthy and expensive civil trials in Ontario. This problem is not unique to Ontario and has been an issue since I began practising law over 20 years ago, and was recognized by Chief Justice Strathy at the Opening of the Courts Ceremony on September 9, 2014 with the following comments:

It strikes me that we have built a legal system that has become increasingly burdened by its own procedures, reaching a point that we have begun to impede the very justice we are striving to protect.   .   .   .   Our justice system has become so cumbersome and expensive that it is inaccessible ot many of our own citizens.

Associate Chief Justice Marrocco’s views were also acknowledged within the introductory section of the TAS Best Practices document.  Marrocco ACJ felt that the migration of cases within the civil court system to private arbitration had created a negative impact upon the evolution of the jurisprudence, and recognized that in these circumstances, with time, the bench and bar could lose the ability to adjudicate a wide range of civil cases.  

The efforts of the Task Force during 2014 culminated in a Symposium which was held in January 2015 at which leaders of the legal community attended to discuss these issues and consider possible solutions which would not require any amendments to the Rules of Civil Procedure nor the addition of more resources to the Ontario civil court system.  The “Best Practices for Civil Trials” provides a blue print which can and should be used by bench and bar alike to streamline the civil litigation system to the point of making it accessible once again to those who seek justice in our province.

As a result of my involvement and participation within this Task Force, I am convinced that if Ontario’s civil justice system is to remain relevant, serious consideration must be given to the TAS recommendations.  

And in my opinion, the most important elements of the “Best Practices for Civil Trials” document are found in its support for active Case Management and Trial Management of all civil cases.  This does not mean that each file requires Case Management or Trial Management, since I suspect that 80% of all matters are handled by competent and experienced litigation counsel who can efficiently represent the best interests of their clients without judicial input.  It is the remaining 20%, however, which bogs the system down with counsel who are unfamiliar with litigation protocols and are insufficiently skilled to recognize the strengths and weaknesses in a set of circumstances which should dictate and shape the terms of any meaningful dispute resolution process.

Judges can no longer sit on the sidelines only offering advice when both parties seek the same through a Pre-Trial or Trial process.  The courts must ensure that they remain relevant to the administration of justice, and getting involved with Case Management processes early on in files which require such intervention is key to ensuring litigants are well served by the traditions of our common law system.  Effective and active Trial Management for those cases which cannot be otherwise resolved is also necessary to ensure that the trial process itself does not consume and overshadow the very issues which it has been established to adjudicate.

This is the necessary path our civil court system must embrace and follow if we want to maintain a civil justice system which is relevant to the needs of our clients, and a path which other jurisdictions have taken with resounding success.  Support for this approach is found in the report to the Judiciary Committee of the America College of Trial Lawyers, Working Smarter But Not Harder in Canada: the Development of a Unified Approach to Case Management in Civil Litigation, and which was referenced in the recent Pilot Project for Civil Case Management in the Superior Court of Justice which is effective February 1, 2019.

While there may be an initial cost to implementing such a system as part and parcel of the Rules of Civil Procedure, I believe that the impact it will have upon our justice system will result in gains which far exceed any front end costs.

Stephen Wojciechowski
How I would change the Ontario Justice system
Posted January 14, 2019 by Gary S. Farb

1) Adopt BC model of prosecutions of impaired driving offences to reduce backlogs (under category 1);

2) Provide Crown Attorneys with permanent employment to enable them to make hard decisions without fear (under category 2)

3) Improve legal aid eligibility to reduce backlogs caused by unrepresented accused (under category 3)

eliminate juries for personal injury actions
Posted January 14, 2019 by Mark A. Stoiko
The following is abbreviated version of an article that I wrote last year (2018), on this issue about the elimination of jury trials:

Jurors are not medical experts.  In all likelihood, they are not accustomed to reviewing and assessing medical evidence on a regular basis either.  Yet civil trials involving personal injuries often require jurors to listen to extensive medical evidence from multiple expert witnesses.  It is certainly possible that a jury will not understand some of the medical evidence, given the complex nature of the evidence, and then choose to ignore it.  This concern is certainly pertinent for cases involving chronic pain injuries.  An injured plaintiff’s experiences of suffering chronic pain may very well be influenced by neurological and psychological factors, which commonly require expert opinion to explain.  There is presently no requirement that a juror sufficiently understand such complex medical explanations, nor that they properly assess this evidence. 

An additional concern is that the jurors may not be particularly motivated to undertake this task of carefully assessing the medical evidence.  They are more or less being forced to take time out of their lives, against their will, to perform this civic duty of participating in a jury trial.  Civil trials commonly last for a duration of weeks.  The jurors may resent the impact that this process has taken upon their personal life, and then they will hold the plaintiff accountable to some degree, for interfering with their personal life.  This interference may affect the decision that the jurors make, regarding the outcome of the trial.  Contrast this scenario of having potentially unmotivated and resentful jurors responsible for reaching a verdict in a civil trial, with the obvious choice of having a judge responsible for assessing the case.  In fairness to the plaintiff, a judge is both better qualified, and better motivated to properly assess the plaintiff’s case.  In Legroulx v. Pitre, the Ontario Superior Court similarly remarks that judges are better suited than juries to consider the circumstances surrounding a case, given their expertise in dealing with difficult legal and factual issues.  Conversely, fairness to the plaintiff cannot be maintained when a jury is responsible for reaching a verdict in a complex civil trial.  

Another decision addressing the jury’s ability to assess a case is Placzek v. Green.  In Placzek, the Ontario Superior Court’s decision to strike the jury was upheld by the appellate court.  The jury was struck based upon the complexity of the case.  The court acknowledged the complexity of the evidence, which included competing medical, engineering and biomedical evidence.  The jury was also required to factor in the plaintiff’s pre-existing medical condition, and the relevance of that prior condition when assessing the ongoing medical symptoms.  Additionally, there was competing evidence for the plaintiff’s income loss, and loss of future income.

Another decision in which the jury’s qualification to properly assess the plaintiff’s case was challenged is Kwok v. Abecassis.  In Kwok, the Ontario Superior Court was required to assess the plaintiff’s traumatic brain injury.  The court’s decision to strike the jury was partially motivated by the complexity of the evidence.  Moreover, the nature and extent of pre-existing injuries were also in dispute.  The court also expressed concern that the jury must be able to understand all of the evidence which is presented at trial.  Medical evidence can be quite technical and scientific in nature, and thus challenging for jurors to (a) comprehend; (b) remember; and (c) fairly assess.  The court also acknowledged the obvious practical concern that the longer the trial, and the more complex the evidence, the more difficult it will be for the jury to retain the medical evidence.

If medical evidence is potentially difficult for jurors to comprehend, a further concern is that the jury may not put adequate weight upon the medical evidence in assessing the plaintiff’s injuries.  In contrast, the jurors could rely heavily upon surveillance evidence because it is much easier to comprehend.  It almost goes without saying that there is a real danger that the surveillance evidence does not accurately represent the plaintiff’s injuries and their symptoms.  How can video surveillance possibly provide an accurate portrayal of the psychological, or neurological effects of chronic pain, or a significant head injury?  In Landolfi v. Fargione, the Ontario Court of Appeal acknowledged that video surveillance evidence can have a powerful impact.  The danger is that jurors will be more easily persuaded by this type of evidence, rather than make a sufficient attempt to comprehend and properly assess complex medical evidence, which may be beyond both their comprehension and their attention span. 

An additional concern is that jurors, along with the process through which they arrive at their decisions, are not presently held to any particular standard in civil trials.  If the jury completely ignores cogent medical evidence presented at trial, because they didn’t understand it, there’s nothing wrong with that.  If the jury arrives at an illogical, and internally inconsistent decision, there’s nothing wrong with that either in Ontario.  The standard is different in British Columbia, where arguably some progress has been made to improve the fairness of jury trials in civil litigation.  At the very least, juries in Ontario should be held to a minimal standard that requires them to reach logically consistent decisions. 

A number of cases from British Columbia demonstrate the need for a jury’s decision to meet a reasonable standard for logical consistency.  In Kalsi v. Gill, litigation before the Supreme Court of British Columbia involved a 10-day jury trial arising out of a motor vehicle accident.  The jury awarded the following:

  • $0 for non-pecuniary damages, future pecuniary damages and loss of homemaking capacity
  • $12,000 in past wage loss
  • $8,000 in special damages

The plaintiff appealed the decision on the grounds that “the jury’s verdict was internally conflicting and perverse.”  Justice Weatherill subsequently ordered a retrial.  In arriving at his decision, Justice Weatherill states, “While the court should strive to give effect to a jury’s verdict, it cannot do so where the jury’s verdict is internally in conflict.”  To elaborate upon this internal conflict, Weatherill J. references the jury, and says “it was not open to them, after making the findings as they did regarding special damages and past loss of wages, to fail to make any award for non-pecuniary damages. Such a result was inconsistent.”  Weatherhill J. further explains, “It is illogical to conclude that a plaintiff was injured and suffered past wage loss and special damages but did not sustain and pain, suffering, or loss of enjoyment, no matter how transient.”

In Fast v. Moss, litigation arose out of injuries resulting from a motor vehicle accident.  The jury decision noted that the plaintiff suffered a loss of capacity to do household and yard duties, but awarded $0.  The jury also decided that the plaintiff’s capacity to earn an income was not compromised at all.  Because of the resulting inconsistency, the British Columbia Court of Appeal orders a new trial. 

There is also no requirement that a jury’s decision reflect a sufficient understanding of the evidence, or even that there is logical consistency within their decision.  To keep the present jury system in place would only maintain a status quo which has obvious shortcomings, that should be addressed.  Additionally, we should acknowledge that in civil litigation involving motor vehicle accidents, jury trials are somewhat of a farce; the jury is not instructed about the deductible.  This deliberate deception only inhibits transparency in our legal system.  At the very least, steps should be taken to improve the shortcoming which I have noted above.

Reform of Ontario Justice System
Posted January 14, 2019 by Kaitlyn MacDonell

1. If there was one change that you could make to the Ontario justice system that would have no cost, what would it be?

To remove jury trials from motor vehicle  injury claims.  A significant amount of jury trials are currently as a result of motor vehicle accidents.  Having jury trials is a costly endeavour for both the parties as well as the Courts.  Jury trials typically add at least 4-5 days, if not more, to an average trial.  This is due to jury selection, the different approach that must be taken for openings and closings that adds length, and the need to call additional evidence to allow for explanation of a number of concepts to the jury, as well as a day of court time for vetting the charge to the jury and the charge itself.  This has a cumulative effect on the use of court resources and detracts from overall access to justice due to the length of time it takes for matters to reach trial.  Removing jury trials will shorten the length of trials and in turn, the cost of judicial resources. 

 

Motor vehicle injury law is specialized and nuanced with the interplay with the statutory law and regulatory law which adds to the length of trial (ie having to prove all medical rehabilitation expenses due to offsets between accident benefits and tort law).  Additionally, having judicial decisions will add more certainty to the law in this area, which again will lead to a cumulative effect of less matters going to trial because the issues will have already been decided in precedent (something that is not available with jury trials).

2.    If there was one change that you could make to the Ontario justice system that would cost $10 million or less, what would it be?

To have an online scheduling process available for motions, pre-trials, and trials.  This way, if the parties agree, they can go through a specific scheduling process within a court portal and only use judicial resources for disputes on scheduling.  This will have a costly outlay but in time, it will minimize the use of judicial resources.

 

The other suggestion under this category would be to add wifi to all courthouses across the province which will be beneficial for counsel when trying to run electronic trials and to streamline evidence.



3.    If there was an unlimited budget, what change would you make to the Ontario justice system?

To have specialized judges for civil, criminal and family law (similar to how the corporate commercial list is run).  This will allow for efficiency in pretrial and trial matters.  This in turn will lead to less matters reaching trial (due to effective pre-trials with specialized judges in the respective areas) and will have more efficient trials due to the fact that certain aspects of the specializations within the law will not have to be explained to the trial judge.  Again, this will lead to more certainty in the law which may lead to less matters reaching trial.

How Would You Change The Ontario Justice System
Posted January 15, 2019 by Darryl A. Cruz
1.  Assign a case management judge at the outset of every case;
2.  Assign a trial date at the outset of every case; and
3.  File everything electronically.
How would you change the Ontario Justice System?
Posted January 16, 2019 by Valerie Lord

1. If there was one change that you could make to the Ontario justice system that would have no cost, what would it be?

To remove jury trials from motor vehicle  injury claims.  A significant amount of jury trials are currently as a result of motor vehicle accidents.  Having jury trials is a costly endeavour for both the parties as well as the Courts.  Jury trials typically add at least 4-5 days, if not more, to an average trial.  This is due to jury selection, the different approach that must be taken for openings and closings that adds length, and the need to call additional evidence to allow for explanation of a number of concepts to the jury, as well as a day of court time for vetting the charge to the jury and the charge itself.  This has a cumulative effect on the use of court resources and detracts from overall access to justice due to the length of time it takes for matters to reach trial.  Removing jury trials will shorten the length of trials and in turn, the cost of judicial resources. 

 

Motor vehicle injury law is specialized and nuanced with the interplay with the statutory law and regulatory law which adds to the length of trial (ie having to prove all medical rehabilitation expenses due to offsets between accident benefits and tort law).  Additionally, having judicial decisions will add more certainty to the law in this area, which again will lead to a cumulative effect of less matters going to trial because the issues will have already been decided in precedent (something that is not available with jury trials).


2.    If there was one change that you could make to the Ontario justice system that would cost $10 million or less, what would it be?

 

To have an online scheduling process available for motions, pre-trials, and trials.  This way, if the parties agree, they can go through a specific scheduling process within a court portal and only use judicial resources for disputes on scheduling.  This will have a costly outlay but in time, it will minimize the use of judicial resources.

 

The other suggestion under this category would be to add wifi to all courthouses across the province which will be beneficial for counsel when trying to run electronic trials and to streamline evidence.



3.    If there was an unlimited budget, what change would you make to the Ontario justice system?

 

To have specialized judges for civil, criminal and family law (similar to how the corporate commercial list is run).  This will allow for efficiency in pretrial and trial matters.  This in turn will lead to less matters reaching trial (due to effective pre-trials with specialized judges in the respective areas) and will have more efficient trials due to the fact that certain aspects of the specializations within the law will not have to be explained to the trial judge.  Again, this will lead to more certainty in the law which may lead to less matters reaching trial.

Ontario Justice System
Posted January 17, 2019 by Stephen R. Morrison
The biggest problem with our current system is the cost for parties to access it in respect of the vast majority of claims.  All of my recommended changes have no direct cost associated with them:

Increase the monetary jurisdiction of the Small Claims Court to $100,000.  Cases between $50,000 and $100,000 could be moved into the Superior Court with leave of a judge of the Superior Court in appropriate cases.

Increase the monetary jurisdiction under the Simplified Rules to $250,000 (and perhaps eventually to $500,000).  As these rules are based on filing of evidence-in-chief in writing with supporting reliance documentation, parties will know the case they have to meet and the evidence being relied upon by the opposing party.  As a result, they will not require examinations for discovery.  I would eliminate examinations for discovery, except with leave of the court, and substitute limited pre-trial cross-examination on the filed affidavits and allow the transcripts of those cross-examinations to be used at trial in a manner similar to discovery transcripts.

For all matters above the threshold of the Simplified Rules, the default should be the filing of evidence-in-chief in writing, as under the Simplified Rules, except with leave of the court.  Again, I would eliminate examinations for discovery, except with leave, and substitute cross-examinations on the filed affidavits, as above.

In all cases, I would eliminate the current documentary disclosure rules and adopt the practice in arbitrations of requiring parties to file only  their reliance documents in conjunction with their written evidence-in-chief, followed by a Redfern-type process to allow the opposing party(s) to request additional documents and, if refused, subject to a ruling by the court on a motion.

I would impose limits on the number of experts that each party could call on any given issue and make concurrent expert testimony (hot-tubbing) the default position.  Using this method, experts on common issues are sworn or affirmed and empanelled by the court.  The are then presented by the court with pre--determined lists of questions prepared by counsel.  The questions are presented by the court and the court has an opportunity to hear and explore all of the various opinions presented at the same time.  The experts are, in effect, treated as witnesses called by the court.  Counsel are then afforded an opportunity to cross-examine any and all members of the panel, even if that expert was proffered by their client.  Having utilized this method of receiving expert testimony in many arbitrations, it has much to commend it, and it should be adopted in the court system.

Greater consideration should be given to the bifurcation of disputes.  It makes little sense to spend days and weeks of court time (and party expense) receiving evidence on damages, before there has been a determination on liability.  Similarly, greater emphasis should be given to dealing with preliminary issues that may simplify or resolve the dispute without a full trial.  Although the current rules allow for this through motion practice, much of the current jurisprudence seems to discourage bifurcation, except in the most obvious cases.

Wherever possible, case management, including interlocutory motions, should be conducted by the judge that will try the case.  Again, this is one of the benefits drawn from arbitration practice where the arbitrator or panel chair typically assist the parties in designing an efficient and cost-effective protocol for the hearing and the steps leading up to it.

All of these recommendations are drawn from the world of arbitration where the emphasis is placed on expediency and cost-effectiveness, without sacrificing due process.  A matter that would occupy two weeks of court time can often be disposed of in a three-day arbitration.  The downside to arbitration is the requirement that the parties pay the arbitrator or arbitration panel, as well as for meeting rooms and the services of a verbatim reporter.  That would not be a concern in the state run court system.  I believe that the court system has much to learn from arbitration practice.
Court Facilitated Arbitration
Posted January 17, 2019 by Barry Leon

Court Facilitated Arbitration.

Operate a pilot project to encourage parties with cases lingering in the courts to consider moving to arbitration. Usually a party locked in the heat of a contentious dispute will recoil at a suggestion from the other side to consider moving to arbitration, fearing some tactical maneuver. An effective and efficient court mechanism is needed to (1) cause parties to consider seriously the advantages and disadvantage, (2) work out how their arbitration would work, and (3) settle specifics of moving. The answer likely lies in “Court-Facilitated Arbitration”. Moving to arbitration needs to remain voluntary. However, the process to get parties to explore moving to arbitration need not be entirely voluntary. Implementing a process for courts to assist parties to consider moving to arbitration is easy – use case management conferences.

To begin, a court identifies cases in which party interest in arbitration may exist. Then the parties and counsel are invited to attend a case management conference to consider moving. An experienced judge who understands arbitration, has strong mediation skills, and has a commitment to make Court-Facilitated Arbitration work would conduct the conference. Before the conference, the judge would become familiar with the dispute, its factual and legal issues, and its procedural situation. 

Parties should be required to attend so that there is a greater opportunity for parties’ true interests to surface.

When the parties are receptive to moving, the judge would assist them and their counsel develop a protocol for the move. If parties chose or like litigation because of certain of its features, as compared to arbitration, those court litigation features could be preserved in arbitration. Court litigation features could be the default position for the arbitration, with differences from arbitration’s ordinary features being subject to discussion.

Guided by an experienced judge who understands arbitration’s features and benefits, parties may elect to apply those features to their dispute. Topics that would be considered and agreed in the conference would include privacy / ponfidentiality;  judgment v. award; precedent; procedural and evidentiary rules;  costs; arbitral tribunal; appeals; other topics, such as the use of mediation and other forms of ADR, to take place before arbitration, running either concurrently or sequentially. 

Court-Facilitated Arbitration could be implemented under most existing court rules and practices, with minimal disruption to existing ways of doing things. The main cost of implementation would be a few hours of judicial time devoted to cases that otherwise will have lengthy waits for trial, and ultimately consume many days, if not weeks, of court time and resources. 

See my article in Canadian Lawyer last year describing this idea more fully:

https://www.canadianlawyermag.com/author/barry-leon/how-to-fix-court-delays-court-facilitated-arbitration-15355/?utm_term=How%20to%20fix%20court%20delays%3A%20court-facilitated%20arbitration&utm_campaign=CLNewswire_20180226&utm_content=email&utm_source=Act-On+Software&utm_medium=email&utm_term=How%20to%20fix%20court%20delays%3A%20court-facilitated%20arbitration&utm_campaign=CLNewswire_20180226&utm_content=email&utm_source=Act-On+Software&utm_medium=email 

Task Force on Self-Represented Litigants
Posted January 17, 2019 by Barry Leon

Task Force on Self-Represented Litigants.

Establish a task force to consider innovative, cost-effective and fair ways to improve the situation surrounding self-represented (pro se) litigants in the courts – that is, to improve the situation for the self-represented litigant, the opposite party and the judge.

Possibly, the task force could be established in conjunction with other similarly situated jurisdictions that are interested in exploring innovative means for improvements. This would reduce the cost and possibly expand perspectives.

The task force could examine the most significant challenges from the perspectives of judges, self-represented litigants, and counsel/parties litigating opposite self-represented litigants, and the reasons for those challenges.

For example, are self-represented litigants unduly burdened by procedural complexities; by the challenge of presenting their evidence, by the challenge of cross-examining? Are self-represented litigants getting a genuine ‘fair shake’ from judges or do sometimes judges go through the motions but have an unconscious bias against the self-represented party, particularly if he/she is a difficult personality? Are parties opposite to self-represented parties being treated fairly by judges trying to assist the process of dealing with a self-represented party who is overwhelmed? Are there ways to reduce the pressures on judges in these kinds of cases?

Second, the task force could examine what is being done in other jurisdictions.

Among the things that could be examined is what is being done by the non-profit legal organization founded in the U.S. by Richard Posner (former U.S. Court of Appeals for the Seventh Circuit). Apparently in New York, pro se litigants can obtain assistance from court-appointed pro bono counsel for mediation and depositions and from the Southern District of New York’s Pro Se Intake Unit.

For example, one can think of a range of ideas that could be considered to guide self-represented litigants, perhaps made even more accessible as technology advances. 

Third, the task force could recommend pilot projects for our courts to test ideas, whether derived from other jurisdictions or from the thinking and consultations of the task force. 

Three Questions - Improvements to Ontario's Justice System
Posted January 18, 2019 by Jennifer J. Breithaupt
1.  No Cost Idea: Amend Rule 4(1) of the Family Law Rules to allow Articling Students to appear at return dates ("To Be Spoken To" dates) and Conferences in Family Law Matters without requiring the Court's advance permission.  Whilst it may be sensible to retain a requirement that a non-lawyer cannot represent a family litigant at trial or in a situation of final disposition of an issue, the costs of family litigation are disproportionately increased as contrasted with other forms of civil litigation, as a result of Rule 4(1)'s prohibition on allowing Students to appear for scheduling dates; conferences; and motion argument.  

2.  $10Million or Less Idea:  Wherever space permits, expand services available to family litigants at courthouses beyond the Family Law Information Clinic and On-Site Mediation to include professionals such as:  domestic violence/crisis triage counsellors; career/training/financial counsellors; Voice of the Child Report Clinicians; family resource liaisons (i.e. persons who can connect litigants to other services such as parenting co-ordinators, parenting classes, personal counsellors, etc.).  If engaged, these persons could provide a brief checklist-style report regarding services provided which could be contained in the court file for judicial review only (i.e. NOT in the Continuing Record due to privacy concerns).

3. Unlimited Budget Idea: Increase funding to Legal Aid for family matters to as to be able to dramatically increase the threshold of financial eligibility for a Certificate. Currently, a parent with two dependent children (household of three persons) must have an income below $28,503 gross annually in order to qualify for a Certificate. That figure translates to $25,082 after tax, meaning that a family of three must have less than $2,090 monthly in order to qualify. The deluge of self-represented litigants in Family Courts is a direct result of the sheer volume of Ontarians who earn too much to qualify for a Legal Aid Certificate but who cannot hope to fund the cost of litigation. Although undoubtedly an enormous expenditure, this will yield a significant return on investment in the longer term as more matters are settled earlier as a result of detailed pleadings and frank financial disclosure, thus freeing up our Courts to hear truly contentious matters. In jurisdictions where there is no Unified Family Court, a ripple effect will flow as a result of the increased efficiency in hearing family litigation such that compliance with the directives in Jordan will be much easier to actualize while minimizing the negative impact upon the ability of the civil law bar to have its matters heard in a timely fashion.
Changes to the Justice System
Posted January 18, 2019 by Gerald Antman
1. Remove juries.  A trial with a jury is unquestionably longer than judge-alone.  Particularly on more complex cases, where medical and legal concepts have to be explained, it could lengthen the trial by a week or more.  Having a jury decide substantive rights and legal issues is akin to hiring a plumber to do your taxes.  The justice system ought to leave the decision making to those with training in the area.
2. Create a system for online document submission and exchange.  This will allow masters and judges to review material electronically for motions, it will allow registrars to quickly and efficiently issue and enter orders into the system and will save counsel an immeasurably large amount of time and money.
3. Remove the generalist judiciary.  The commercial list was created in order to have a specialized group of judges, who had experience in the area, so that they could understand the issues.  this should and could easily be expanded into other areas.  having experience in an area, particularly at the pre-trial stage, can reduce the number of matters to go to trial and also reduce the length of trials.
No more Fax Machine, Sustainable Pro Bono Funding
Posted January 18, 2019 by Erin H. Durant
  1. If there was one change that you could make to the Ontario justice system that would have no cost, what would it be?
Eliminate the fax machine from the Rules and use at the Court. 

2. If there was one change that you could make to the Ontario justice system that would cost $10 million or less, what would it be?

Chief Justice Strathy has stated publicly: “The money spent on pro bono work in this province through Pro Bono Ontario is delivering more to provide access to justice - pound for pound, dollar for dollar - than any other kind of funding that can be found”.  The Government of Ontario should be investing in PBO's services which provide the Government of Ontario with substantial cost savings throughout Ontario as illustrated in PBO's return on investment study. An investment of only $500,000 annually will ensure that the services survive and continue to save the province money. A larger investment would allow services such as the Law Help Centres to operate in other large courthouses across the province. Without any civil legal aid funding, PBO's services have become essential. 

3. If there was an unlimited budget, what change would you make to the Ontario justice system?

Increased legal aid - including the return of civil legal aid. Since I know this will not happen, investing in PBO is the next best thing. 
How would you change the Ontario justice system
Posted January 18, 2019 by Daniel E.H. Bach

1.    If there was one change that you could make to the Ontario justice system that would have no cost, what would it be?

We should change the rules to (i) require email service of searchable (PDF or Word) documents; and (ii) not permit service by fax unless previously agreed by the parties.  We should also only require the serving party to produce one set of paper material, and only if requested.

Email is cheap, effective and used by every lawyer.  Email service is more convenient and better for the environment.  Searchable (and cut and paste-able) documents are easier for the receiving party to work with. 

This rule change should not require the recipient to confirm receipt.  The rules should assume receipt when an email is sent, unless the receiving party raises an issue.

Faxes are like email, except worse in every conceivable way: they are (usually) not searchable, have poor image fidelity and require extra IT infrastructure.  No one should use faxes.

Bonus idea: a presumption that absent leave of the Court no motion is longer than a half day, and require facta for all motions.  Oral argument should be used to address questions from the Court raised in the briefing, not rehashing the briefing.  This will increase access to the Courts and reduce delay.

2.    If there was one change that you could make to the Ontario justice system that would cost $10 million or less, what would it be?

We should licence PACER from the Administrative Office of the United States Courts.  It’s the future now and we should have e-filling, service and dockets.  Anyone who has ever used PACER knows it is much better than our paper-service and -storage system.  In fact, it would preferable to change the names of Ontario court documents and steps to match what PACER uses (complaint, answer, brief, etc.) if it is cost prohibitive to customize PACER. 

3.    If there was an unlimited budget, what change would you make to the Ontario justice system?

We should give every Superior Court judge two clerks.  More clerks will allow judges to be more efficient, and accordingly increase the volume of work our Courts can handle, reducing delay.  It would also create more articling spots which, because we lacked the courage to get rid of articling, we require.

How would you change the Ontario justice system?
Posted January 21, 2019 by Hilary Book
1.  No cost idea - streamline the discovery process.  Others have already made suggestions here for changing the scope of document production.  I would add to those suggestions that the availability of discovery-related motions should be limited.  For example, refusals motions should be subject to a tough leave requirement so that motions aren't brought unless they are necessary to proving/defending a claim.
2.  <$10 million idea - early assignment of trial date and trial judge.  This would go a long way towards changing the "motions culture" that tends to bog down cases.
3.  >$10 million idea - electronic filing.  Parties should be able to serve and file all documents electronically, and court files should be available electronically (and publicly).  The paper system is hugely inefficient and costly.  Paper records regularly get lost, meaning that the judge doesn't get them in advance of the hearing and the parties have to incur costs for the preparation of extra copies.  Older files get sent to storage, which results in cost and delay for retrieving them.  Process servers wait in line for hours to file documents, when they could be filed electronically in minutes.  We are years, if not decades, behind other jurisdictions in this area, and this needs to change.  
 
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