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Case Management: A new way to manage civil cases

By Cynthia F. Martin,
LAWPRO Claims Examiner

Effective July 3, 2001 100% Case Management will arrive in Toronto. This innovative new system for managing most civil cases is designed to reduce delay, decrease unnecessary costs and to facilitate early and fair resolution of civil disputes.

There will be many changes to the practice and procedure of civil litigation as a result of case management. Lawyers and their clients will be met with greater involvement in their cases by Judges, Masters and other court personnel who will be much more dynamic concerning both timing and management issues of civil cases as they move through the litigation process. A new approach to both the pace and style of practicing litigation will be required to efficiently manage these changes.

This article introduces you to some of the key features of 100% Case Management and provides you with some practice tips so that you will be ready for July 3, 2001.

RULE 77 - Case Management Procedure
Rule 77 sets out the procedure for case management. Presently this rule applies to approximately 25 per cent of eligible civil cases in Toronto. Amendments to Rule 77 which also become effective on July 3/01 provide that all newly commenced actions in Toronto will be case managed unless otherwise excluded by Rule 77.

Rule 77 Highlights to note:

Commencing a Proceeding

  1. All actions and applications commenced after July3/01 will be case managed except family, estates, construction liens, mortgage, bankruptcy, class actions, Toronto Simplified Rules actions, and Toronto commercial list actions.
  2. Upon issuing a claim the plaintiff must chose standard or fast track.
  3. A team of judges and a case management master will be assigned to your case. The master will hear all master's issues (i.e. motions, case conferences) arising from the case.
  4. New important time limits begin to run upon issuance:
    • Within 180 days of commencing the proceeding, the plaintiff must file a case timetable, agreed to by all parties, for completing productions, discovery and related motions. This means that counsel have to either agree on scheduling or must seek a case conference before their case management master to set a timetable. If you fail to do so the master will fix a timetable. If a party fails to meet a deadline set by the timetable the possible sanctions include a dismissal of the proceeding or striking out the defence, with cost consequences.
    • Within 180 days of commencing a proceeding either a defence must be filed or default judgement obtained, otherwise the action will be dismissed by the Registrar as abandoned. The dismissal of an action as abandoned has the same effect as a dismissal for delay.

Mediation

A second set of time limits begin to run once the first statement of defence is filed even if there are defendants who have not yet been served. These include:

  • Within 30 days of the filing of the first defence the parties must select a mediator pursuant to rule 24.1. If they fail to do so a roster mediator is automatically assigned by the Local Mediation Coordinator.
  • Within 90 days of the filing of the first defence, a mandatory mediation session must be completed (or parties must agree to postpone the mediation by an additional 60 days in a standard track case).
  • Each party must serve a statement of issues at least seven days before the mediation. The pleadings and documents of central importance to the case must be included. If a party fails to serve a statement of issues or to attend within the first 30 minutes of the mediation, the mediator may cancel the session and file a Certificate of Non-Compliance.

Discovery

Within 150 days (fast track actions) or 240 days (standard track actions) from the filing of the first defence all production, discovery and any motions arising therefrom must be held.

Motions

There are a number of new and unique features concerning Toronto case management motions:

  • The same case management master or judges with hear all interlocutory matters within
  • an action.
  • Motions must be brought on a case management motion form (77C) with or without a motion record or supporting material.
  • A variety of procedures may be used to conduct the motion: personal attendance, by telephone or video conference, in writing or by fax.

Case conference

Case conferences are one of the most useful tools of case management. Rule 77.13 sets out the procedure. The key features are:

  • Case conferences may be convened at any time at the request of a party or on the initiative of the case management master or judge.
  • The conference may be conducted in person, or by telephone or video conference.
  • The conference can have many purposes: for the presiding master or judge to review and amend the case timetable; to explore resolution of contested issues; to refer certain issues to alternative dispute resolution (on consent); to make procedural orders without the necessity of a formal motion; to give whatever directions may be necessary for the conduct of a proceeding; to incorporate flexibility into the management of the proceeding to meet the needs of the litigants; to discuss and manage the issues raised by counsel.

Settlement Conferences

The Rule 77 settlement conference is similar to a Rule 50 pre-trial conference but with important differences.

Settlement conferences are the second forum pursuant to the case management rule to facilitate a resolution of the case, the first opportunity being the mandatory mediation. Noteworthy elements of case management settlement conferences are:

  • The settlement conference is mandatory and must take place no later than 150 days after the first defence is filed in fast track cases and 240 days in standard track.
  • All discoveries, production of documents, motions and experts' reports must be completed at least 10 days before the conference.
  • A settlement conference brief must be more extensive than the old pretrial memos. It shall contain not only a summary of facts, issues and law but also a list of witnesses, a summary of their evidence, transcript excerpts, expert reports, and pleadings.
  • The trial date is assigned at the settlement conference in fast track actions (standard track action trial dates are set at Trial Scheduling Court).
  • The parties may be directed by the case management judge or master to attend the settlement conference.

Trials

Fixed trial dates are a key feature of case management. Litigants will not only have the benefit of certainty of a trial date but will experience reduced costs because of less wasted preparation time by counsel. Counsel will be able to plan their schedules more efficiently as they will no longer have to double and triple book. Trial dates are as set out in 'settlement conferences' above.

Trial Management Conferences

Trial management conferences are available to deal with trial related issues such as how the trial will be conducted- the order and number of witnesses, ways to streamline the presentation of evidence and the length of the trial. They can be arranged upon the initiative of counsel or the Court.

Call-Over Court

The existing backlog of cases (with estimates ranging from 46,000 to 49,000) will be brought into case management by 2004.

To deal with the backlog of cases a system of "Call-Over Courts" has been created which will run for one year. The key features are as follows:

  • Call-Over Court Notices will be sent to counsel of record in all non-case managed cases starting with the earliest cases.
  • Approximately six weeks' notice of the hearing is given.
  • The Notice should be completed by counsel and returned to the Call-Over Court Co-ordinator within seven days prior to the hearing.
  • The purpose of the Court is to determine the status of non-case managed cases and to assist in reaching a resolution if the case cannot be easily disposed of.
  • If all parties agree the case is settled, no attendance is required. Simply advise the Court that the matter has been settled in full, dismissed or abandoned by completing and returning the Notice.
  • If the action is pending counsel for all parties must attend to speak to the matter.
  • Motions, on proper notice, can be brought to the Call-Over Court.
  • Pre-trial and trial dates may be set if counsel or unrepresented parties are present.
  • If no one attends the Call-Over Court date a trial date will be set to start approximately four weeks after the Call-Over court date.
Practice Tips: Getting ready for case management
  1. Case management is driven by deadlines so be very careful of the timetabling requirements
  2. Prepare a checklist for each file to ensure that you are tracking the steps and timetable deadlines accurately. Your file management system should be set up to automatically generate a timetable at a pre-programmed time.
  3. As a plaintiff thoroughly learn your case at the outset rather than waiting for discoveries. This way you will be better able to anticipate major steps in a proceeding and deal with potentially controversial interlocutory matters as soon as possible.
  4. Whether acting for plaintiff or defendant, develop a draft timetable at the outset of your retainer. If you determine that the timelines set out in the case management rules are too short for a particular case, tailor your draft timetable accordingly and bring it to the first case conference, with reasons for the variation in timetabling at the earliest opportunity. Discuss the timetable well before the case conference with the other side.
  5. Communicate with your client about the timetable. It has to work for both of you.
  6. All case managed cases are subject to mandatory mediation so address the choice of mediator early on. Otherwise the court will appoint a mediator on your behalf.
  7. Consider if you can bring any intended motions at a scheduled case conference. This will have the benefit of one rather than two or more attendances which, besides being an efficient use of the Court's and your time, will keep your client's costs down.
  8. Anticipate a Call-Over Court Notice on old files by retrieving the file and contacting your client and opposing counsel as soon as possible. If the matter has been settled, abandoned, or otherwise disposed, notify the court at least seven days before the Call-Over Court date. If the case is pending, make the attendance as useful as possible by preparing a draft timetable to assist at the Call-Over Court. Consider whether an early pretrial would be of assistance and discuss the timetable with opposing counsel.
Conclusion

Mandatory case-management is a system designed to be more efficient and cost effective for litigants. While it will no doubt have its growing pains, the system is clearly less cumbersome and considerably more flexible in its approach to managing litigation.

 

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