STREAMLINE LITIGATION THROUGH THE USE OF SPECIALIZED COURTS
With a view to introduce greater efficiency in the Ontario civil justice system, specialized procedures were developed and adopted for particular types of proceedings in the Toronto Region. “Practice Directions” or directives issued by the court providing for specific procedures to be followed, were introduced to put these procedures in place. At present, specialized courts are in Toronto for commercial, estate and family law matters.
The Ontario Superior Court of Justice in the Toronto region maintains a specialized branch known as the Commercial List, for the hearing of certain actions, applications, and motions involving issues in commercial law. This court is administered by judges of the Ontario Court with an interest or expertise in commercial matters and who preside continuously in monthly cycles over matters that qualify for the Commercial List. A frequently revised practice direction (the current version of which came into force on April 1, 2002), forms the governing principles of the Commercial List. This practice direction should be consulted for the procedure to be used on matters that fall under the Commercial List. In addition, it also specifies the types of matters that could be listed on the Commercial List, including, but not limited to, applications and actions pertaining to provincial and federal legislation and subject matter falling under the Bank Act; Bankruptcy and Insolvency Act; Business Corporations Act (Ontario); Canada Business Corporations Act; Companies’ Creditors Arrangement Act; Credit Unions and Caisses Populaires Act; Limited Partnerships Act; Pension Benefits Act; and so on including such other commercial matters as a judge presiding over the Commercial List may direct. Rapid resolution of cases of a significant commercial nature, particularly those, the outcomes of which can potentially affect persons who are not parties to the immediate action, forms the objective of the Commercial List. Judges presiding over matters on the Commercial List are averse to the idea of reserving judgments for a long time. Rumour has it that, at least in theory, the Commercial List relies on an implicit understanding between the bench and the bar to foster the expeditious disposition of complex corporate, commercial, and insolvency cases by commercially sophisticated judges.
The Estates Court
Trials involving contested wills, Succession Law Reform Act claims, applications relating to mental incompetency, etc., and the like are conducted in the Estates Court.
This crucial measure, Ontario Civil Procedure Rule 77 – “Civil Case Management”, was introduced in 1997 with the avowed purpose of bringing in a system throughout Ontario that:
- Reduces unnecessary cost and delay in civil litigation;
- Facilitates early and fair settlements; and Guides a proceeding expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding.
One more function of Rule 77 is to establish a non-negotiable timetable for the disposition of civil matters from beginning to end, which can only be changed by an order of the case management judge. The plaintiff sets the timetable for each case by selecting the “track”, depending on the complexity of the issues in the action (r. 77.06(7)). If the case is relatively simple, the plaintiff can opt for the “fast track,” which permits the hearing of the matter within six months of its commencement. If the case is complex, the plaintiff can choose the “standard track,” which ensures a hearing within twelve to eighteen months of its commencement. It is imperative to get an order from the case management judge or master (r. 77.07), to change the track, and in selecting a track, the plaintiff has to consider all relevant issues, including:
- the complexity of the issues of fact or law;
- the likely expenses the parties would incur;
- the importance to the public of the issues of fact or law;
- the number of parties or prospective parties;
- the time likely to be spent by the case management judge for the proceeding; and
- the time required for proper discovery, if applicable, and preparation for trial and hearing (r. 77.06(6)).
In the beginning, each case is assigned to a case management team of judges who consider all aspects of the case from its commencement through to trial. The Rule provisions for an informal motion procedure before a member of the team of judges in case-managed cases, for which a new officer called a “case management master,” is inducted. This new officer’s jurisdiction is specified by r. 77.04 and s. 86.1(6) of the Courts of Justice Act (CJA). A case management judge or master may convene a case conference at any time.
Having regard to the objectives of R. 77 and the strict timetable set by the Rule for achieving them, failure to adhere to the case management timetable can have serious consequences. It is absolutely essential to file timely proof of service of the Statement of Claim, since failure to do so will result in the dismissal of the action.
Changes in Courts of Justice Act
These amendments effective October 1, 2007, open more of the court processes to public scrutiny. It would be seen that the Chief Justice of Ontario is now responsible for ensuring that any standards of conduct for deputy judges and case management masters are made available to the public (ss. 33(7) and 86.1(10)).
Levy Zavet PC will handle any commercial dispute warranting litigation; on behalf of the plaintiff or the defendant.