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January 2005
THE DEMISE OF CASE MANAGEMENT IN TORONTO AND THE
DAWN OF ANOTHER PILOT PROJECT
Several years ago, the Ontario Bar and all of its
litigants were introduced to the Toronto case management system
under Rule 77 that at once romanced and spurned us. What must have
seemed like a good idea at the time turned out to be an expensive,
time consuming, over regulated system (although admittedly not without
its benefits). We did get used to it.
With the introduction on December 31, 2004 of yet
another pilot project to address backlog reduction, it is now recognized
that case management has a place in our system (just as it always
has). But, like fashion, everything old is new again and this time
with an apparent homage to the Federal Court system. There is a
return to the old ways allowing counsel and parties to once again
assert control over the destiny of their lawsuits. We can now resurrect
such strategies as setting an action down when we will or, conversely,
allow a file to sleep. There is once again reliance on the Rules
of Civil Procedure, an essential tool in any litigation.
Cases will no longer automatically be assigned to
case management. Like the Federal Court system, a case will be assigned
to case management upon motion where there are special circumstances
or significant delay or parties can do so on consent. There is no
longer an ability to choose matters on fast track. Mandatory mediation
at an early stage has now thankfully been discarded. Mediation must
still be conducted no later than ninety (90) days after the action
is set down for trial, which is now required within two (2) years
after the filing of the Statement of Defence. Failure to do so will
result in the issuance of a Status Notice by the Registrar. The
plaintiff will then have ninety (90) days to take certain steps
or the action will be dismissed for delay. The court may also order
a status hearing, which again is an old concept revisited but used
well by the Federal Court.
The court, we are advised, will continue to intervene to prevent
delay or obstruction and it is assumed that we now return to the
use motions to compel the co-operation of parties or counsel opposite.
One can but hope that the Court will introduce some sort of telephone
case conference for this type of problem. This is the one area where
case management worked; that is, the ability to convene a case conference
on various matters by telephone with all parties and without the
expense for the parties of an attendance and associated long motion
lists.
Gone are the Trial Scheduling Courts where counsel
would sit for hours to be heard. Trial dates are now to be scheduled
at the Pre-Trial which is the way it used to be and has always been
for Simplified Rules matters. Notice of Pre-Trial Conferences are
mailed to all parties after the action has been placed on the trial
list and a minimum period of ninety (90) days notice will be provided.
An adjournment of the Pre-Trial Conference can be made within thirty
(30) days of the actual date, although there is no indication in
the practice direction as to whether or not such adjournment must
be on consent. There is apparently a "no adjournment"
policy for trial dates which is once again similar to the Federal
Court system.
It seems to me that we will get used to this new system
and then the powers that be will change it.
Kim E. Stoll
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