 |
| Stuart Rudner |
I started my career as a general litigator before developing a focus on employment law. As a young lawyer, I wanted to get as much trial experience as possible, and my clients certainly knew this. One of my favourite clients, a corporation that was sued frequently, understood this, but also understood the practical realities of litigation. They knew that litigation was expensive, tied up a lot of resources and involved unacceptable risk. As a result, the vast majority of litigation that I handled for them settled. I recall that every time we settled, my client would apologize to me for depriving me of another trial opportunity.
Chayantorn: ISTOCKPHOTO.COM
The 99-page report contains dramatic suggestions for change, and I do not propose to review all of them in detail here; many others have undertaken that task and summaries, infographics and commentary can already be found online.
A broken system
The underlying concerns that prompted this review are undeniable. As the report mentions:
Ontario’s civil justice system was recently described in the Globe and Mail as “arcane, expensive and plagued by delay — in short … in crisis.”
Delays are only part of the problem. The cost of litigation is prohibitive for many Ontarians. Even those who can afford to access the civil justice system are confronted with the troubling reality of excessive delays and costs, meaning that many civil cases are simply not economically rational to pursue. As a result, litigants are increasingly turning to private arbitrations to resolve their disputes. Others are simply unable to adequately access the system.
Delays are only part of the problem. The cost of litigation is prohibitive for many Ontarians. Even those who can afford to access the civil justice system are confronted with the troubling reality of excessive delays and costs, meaning that many civil cases are simply not economically rational to pursue. As a result, litigants are increasingly turning to private arbitrations to resolve their disputes. Others are simply unable to adequately access the system.
The reality is that when I am mediating, a significant part of the discussion is often focused on whether a proposed settlement beats the alternative: spending years and vast amounts of money to get to trial, the result of which is often difficult to predict with certainty. As the report says:
It is axiomatic that litigants enter the civil justice system seeking to resolve substantive disputes. The process they must navigate, however, has become so procedurally complex that they end up spending years and significant sums of money fighting over the process, rather than the substantive dispute itself. As time passes and their resources are drained, they are left exhausted, having spent years, significant sums of money, and considerable emotional energy on procedural battles. Eventually, they are warned that it only makes sense to settle, lest they incur more time, cost, and stress. A settlement driven primarily by the need to stop the drain of resources is not rooted in justice. Rather, it is an implicit acknowledgment that our justice system is, in many ways, incapable of resolving substantive disputes in a fair and meaningful way.
In many of the employment disputes I handle, there is a significant disparity in resources. Most plaintiffs in a wrongful dismissal claim cannot fund lengthy litigation and end up settling for far less than what they are likely to receive at trial, which is a pragmatic but generally unsatisfying result.
An overhaul, not a tweak
The proposed changes are dramatic; these are not tweaks to the system, but a complete overhaul:
To be clear, small changes to the existing Rules will not result in the kind of change that the [review] was mandated to deliver. Bold reforms are required. The stakes are high. The system needs to be rethought from the ground up.
They seem to be guided by this sentiment:
The court’s fundamental role is to decide a dispute following a hearing on its merits. There are two immutable features to that process: a notice pleading and a hearing. We can make the former more accessible and we can make the latter more efficient. We believe, however, that if we are to meaningfully reduce costs and delay, we must focus on the interlocutory steps that occur between the notice pleading and the hearing, namely discovery and motions practice. We believe these two areas are where the maximalist approach to litigating is most pronounced.
The committee acknowledges explicitly and implicitly that there is no perfect solution that will address every possible type of claim. Among other things, they note that:
[T]he time has come to focus on “getting good justice for everyone, not perfect justice for a lucky few.”
It is natural, when considering civil justice reform, to seek to achieve perfect procedural fairness in designing or redesigning procedural rules. Perfection, however, can be the enemy of the good. It is certainly the enemy of the pragmatic. The quest for perfect procedural fairness, accessible only to the fortunate few who can afford it, should not come at the expense of timely or cost-effective justice for all.
It is natural, when considering civil justice reform, to seek to achieve perfect procedural fairness in designing or redesigning procedural rules. Perfection, however, can be the enemy of the good. It is certainly the enemy of the pragmatic. The quest for perfect procedural fairness, accessible only to the fortunate few who can afford it, should not come at the expense of timely or cost-effective justice for all.
Discovery reimagined
Some of the more significant changes relate to documentary and oral discovery; the former would be dramatically reduced in scope and the latter eliminated entirely. This is all based on an “up-front evidence model,” which is designed to produce earlier disclosure of key evidence through production of witness statements and important documents, instead of a requirement to produce every document with a “semblance of relevance” followed by examinations for discovery.
For most of my career, the scope of documentary discovery required inclusion of every document that could even possibly be relevant. That was much easier decades ago, but is not practical in the modern context; as the report states:
Twenty-five years ago, the Court of Appeal for Ontario characterized this mandate as a model of complete discovery. The complete discovery model was introduced in 1985. Documentary discovery was significantly less burdensome in that era. For instance, emails did not then exist. In fact, the principal idea that would evolve into the World Wide Web was not established until 1990. Since that time, digital technology and the means by which people communicate with one another have changed dramatically. It is now estimated that 361 billion emails are exchanged worldwide each day. Emails are just one aspect of the explosion in digital documentation that has profoundly increased the scope and burden of documentary discovery. Concerns about the burden of discovery are not new. In 1995, the Civil Justice Review team raised a concern about the breadth of discovery. In their First Report, the team highlighted that while the 1985 amendments to the Rules, which expanded the scope of discovery, aimed to eliminate “trial by ambush,” they may have instead resulted in “trial by information landslide.”
Second, the inefficient “leave no stone unturned” standard currently manifested in our relevance-based disclosure model is replaced with the requirement to exchange the documents that actually matter to the live issues in the case as framed by the sworn or affirmed witness statements.
Second, the inefficient “leave no stone unturned” standard currently manifested in our relevance-based disclosure model is replaced with the requirement to exchange the documents that actually matter to the live issues in the case as framed by the sworn or affirmed witness statements.
The report describes a shift from relevance-based discovery to a reliance-based one. That is combined with early production of witness statements and a requirement that the parties prepare chronologies of important events,
Dash to trial...
Well, perhaps it’s an overstatement to refer to a two-year timeframe as a “dash,” but one of the expressed goals is “expeditious proceedings that strive for settlement or final resolution within two years or less from the date of commencement.”
While the report rejects a “one judge” system where a judge would be assigned to every case at the outset and manage it, it is based on the approach that rather than let the parties drive the process, it is better to “fix hearing dates and stick to them.” That is the basis for scheduling a conference right away, to take place a year after the claim is issued, and the presumption that a “dispositive hearing” will take place within two years of the issuance of the claim. This will be accomplished largely through the elimination of examinations for discovery, a dramatic reduction in documentary discovery and the streamlining of motions. The report also contemplates “delay penalties.”
Notably, the report also proposes that there would be a presumption of summary proceedings in some cases and an ability to implement them in others. Further, such proceedings could no longer result in a decision that the case must proceed to trial. As they explain:
The judge presiding at the Summary Hearing will retain the discretion to allow oral evidence from one or more parties, with or without time limits (hence the “+” in the “Paper Record+ Process”). This will equip the judge with the necessary tools to ensure they have all the information required to issue a final decision.
As a result, there would be no more “failed” summary judgment motions. The judge at a Directions Conference would act as gatekeeper; once they determine that summary proceedings are appropriate, that will mean that one way or another, the case ends with a final decision at the summary proceeding.
…Or settlement?
The new process, and particularly the “up-front evidence model,” could also lead to earlier settlements. The most common barrier to settlement is incomplete information; that is why, in some cases, parties wait until after examinations for discovery, or until the eve of trial, to mediate or engage in meaningful settlement discussions. By having witness statements produced very early in the process, along with production of key documents that will make it easier to understand each side’s case, the proposed process could result in earlier mediation and/or settlement. As the report notes:
The up-front evidence model will also facilitate earlier settlement. Settlement rates of civil proceedings in Ontario have historically been very high. Still, too many cases do not settle until the trial date is looming. By then, cases have taken too long, have often used too many court resources, and have incurred too much cost. The up-front evidence model recognizes the indisputable fact that almost every case in the system is going to settle. The goal is to provide the litigants with the tools and information they need to settle earlier rather than later. Experience in jurisdictions employing the up-front evidence model is that the overwhelming majority of cases continue to settle without the need for a trial.
Notably, the proposed changes would make mediation mandatory across the province. That is long overdue and should be put in place now rather than waiting for the entire system to be overhauled. There is no denying the effectiveness of mediation, particularly in employment disputes. For those who suggest this is unnecessary and assert that they can settle cases effectively on their own, they would still be free to do so; mediation would only take place if the case has not settled.
The report also mentions the contentious issue of implementing evaluative mediation; I will leave discussion of the pros and cons of such an approach to another day.
Pith and substance
There is no doubt that our current system of civil litigation does not work. It is far too expensive and takes far too long; those are often the very reasons that parties settle. As former Supreme Court Justice Rosalie Abella said, “We have moved from being a society governed by the rule of law to being a society governed by the law of rules.” The process we have in place is not facilitating justice and therefore should be changed.
The decision to settle is often based on a hopeless feeling that they just can’t continue litigating any longer, regardless of the merits of the case. I often have parties tell me at mediation that no matter what, they are done and will settle for whatever they can get. That is not justice.
The proposed changes are not perfect; no system will be perfectly suited to every case. As one of my favourite podcasters often says, “perfection is the enemy of done”; if we try to find the perfect answer, we will never make any progress.
I’m sure that the proposals set out in the report will be adjusted, but the underlying ideas are encouraging. In particular, the shift from having to produce every single document that could possibly be relevant to producing those that clearly are is a dramatic and appropriate adaptation. The former approach made sense when documents were far fewer in number. However, with the explosion of email, text messages and other electronic documents that has occurred since that approach was adopted, documentary discovery is far too expansive.
The Stuart Rudner of the past would be thrilled by the prospect that the proposed changes might result in more trials. Present-day Stuart is excited by the fact that this might result in more mediations (I try not to make it a secret that I thoroughly enjoy my work as a mediator and would like to do more of it). It’s hard to say how Future Stuart will feel, but mandatory mediation and more trials would make him happy.
Stuart Rudner is a leading Canadian employment lawyer and mediator at Rudner Law. He is the author of You’re Fired! Just Cause for Dismissal in Canada. He can be reached at 905-209-6999 or stuart@rudnerlaw.ca.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437-828-6772.