Member Consultations

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.

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)

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.

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.

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.

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.

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. 

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?

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?

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.