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Ontario’s ‘One-Judge’ pilot borrows from arbitration

Friday, April 12, 2019 @ 8:41 AM | By Barry Leon

Barry Leon %>
Barry Leon
On Feb. 1, Ontario’s Superior Court of Justice began a two-year pilot project to test-drive one important feature of arbitration — one judge handling all procedural steps in a case: all pretrial hearings, case management conferences and the trial.

The court is calling it the “One Judge Model.”

As users of arbitration have known for many years, this model has important advantages. Most significantly, as the court correctly expects, the “benefits of one-judge case management are the faster and less costly resolution of civil disputes.”

The Practice Advisory Concerning the Provincial Civil Case Management Pilot — One Judge Model, issued by Chief Justice Heather J. Smith, describes the features of one-judge case management and its particular advantages this way:

  • Familiarity with the issues: This will allow the judge to become entirely familiar with the issues in the dispute.
  • Informal procedures to resolve interlocutory disputes where possible: No formal interlocutory motions will be scheduled without the approval of the case management judge. Instead, informal procedures will be used wherever possible to resolve interlocutory disputes, such as meetings with counsel and self-represented parties in the judge’s chambers or by teleconference.
  • Early fixing of trial date and schedule: At a relatively early stage of the proceeding, the case management judge will fix a trial date, or order a trial to be heard in a particular sitting of the court and impose a schedule for completing necessary steps prior to trial. The trial date would be adjourned only in exceptional circumstances and would require the approval of the case management judge.
  • Predetermination of trial conduct issues: For efficiency in the scheduling or conduct of the trial, the case management judge may make pretrial orders concerning the admissibility of trial evidence.

It should be noted that whether a case will be included is discretionary and subject to the parties applying.

Parties need to apply for their case to be in the pilot, and in doing so need to consent to the fundamental features of one-judge case management (the case management judge presiding at the trial, interlocutory disputes being resolved though informal processes, and no formal interlocutory motions being scheduled unless case management judge orders otherwise).

Unfortunately, there is no assurance that even if parties can agree to request jointly one-judge case management, they will be able to have it. The Practice Advisory provides: “The extent to which the pilot is available in the region, including the number of actions admitted into the pilot, will depend on available judicial resources and local scheduling practices.”

When determining whether to include a case in the pilot, the regional senior judge, or his or her designate, will take into consideration a variety of factors, including:

  • The complexity of the issues of fact or law;
  • The importance to the public of the issues of fact or law;
  • The number and type of parties or prospective parties, and whether they are represented;
  • The number of proceedings involving the same or similar parties or causes of action;
  • The amount of intervention by the court that the proceeding is likely to require;
  • The time required for discovery, if applicable, and for preparation for trial or hearing;
  • In the case of an action, the number of expert witnesses and other witnesses;
  • The time required for the trial or hearing; and
  • Whether there has been substantial delay in the conduct of the proceeding.

The Practice Advisory does not indicate which of these factors will weigh in favour of inclusion in the pilot, or in what degree.

Users of arbitration should applaud the court for adopting, albeit on a pilot basis and with discretionary conditions, this model for “the faster and less costly resolution of civil disputes.” And as an independent arbitrator, I join them in applauding the court for test-driving this model.

The Practice Advisory states that the impetus for the pilot was a report of the Judiciary Committee of the American College of Trial Lawyers (ACTL) titled Working Smarter But Not Harder in Canada: The Development of a Unified Approach to Case Management in Civil Litigation, which discussed the benefits of having the case management judge also preside at the trial of a matter.

The ACTL likewise is to be applauded for assisting the court to try to come to grips with delay and cost in the civil justice system in Ontario.

Interestingly, long before this initiative, Dennis O’Connor, as Ontario associate chief justice (and now a leading arbitrator with Arbitration Place), called for our courts to see what they can learn from arbitration in an article in the September 2006 issue of The Advocates’ Society Journal called “Messages from the market: What the public civil justice system can learn from the private system”, as follows:

“I see the emergence of a strong and mature private system as a healthy development which provides an opportunity for those of us in the public system to learn from its success. By applying what we learn from the private system, we can help to ensure the continued vitality of our public system and enhance our commitment to access to civil justice for all.”

This is the first of a two-part series. Read part two here.

The Honourable Barry Leon is an independent arbitrator and mediator with Arbitration Place, Arbitrators@33BedfordRow (London) and Caribbean Arbitrators. He was presiding judge of BVI’s Commercial Court (2015-2018) and chair of ICC Canada’s Arbitration Committee.

Photo credit / dinosoftlabs ISTOCKPHOTO.COM

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