ADR, Civil Litigation

Look to arbitration, case management to address civil trial delays

By Staff

In Ontario, the availability of dates for civil trials of any complexity is in a crisis state — but as Toronto lawyer and arbitrator Earl Cherniak writes in The Lawyer’s Daily, there are two possible ways to address this problem.

Cherniak, partner with Lerners LLP, says judicial resources that would otherwise have been available for civil trials are being directed to the criminal side to meet the time requirements laid down by the Supreme Court of Canada in R. v. Jordan and the very recent decision in R. v. Cody.

“In Toronto, for civil cases requiring long trials (10 or more trial days) parties cannot obtain a trial date until all preliminaries have been concluded, including production, discovery and all motions, a process that often takes more than three years. A trial date will only then be assigned, as of now in 2019 or 2020. It can take five to seven years from inception to trial,” he writes.

Although Cherniak says increased use of summary judgment since Hryniak has some effect, the principle of proportionality, when it is honoured, can help and Toronto judges now say that cases should not be brought in the city where the only connection is the location of counsel. Band-Aid solutions are not the answer, he adds.

“The courts have failed to seriously address the problem,” writes Cherniak.

Instead, he says, there are two ways to address this crisis — one that requires a wholesale rethinking of the approach to civil litigation, and another that is immediately available to all litigants.

“Ontario has never considered the approach to civil litigation that could largely eliminate the civil trial backlog. It is this: Assign a case, or significant subset of civil litigation cases, when commenced, to a judge at the outset, and give that judge, with the assistance of an assigned master, the responsibility and duty to case manage it from that point forward, including the trial at which that judge will preside,” writes Cherniak.

As he explains, case management requires a pretrial conference early in the process, where a trial date is set as well as a schedule that leads up to it. It entails a plan for examination for discovery and production supervised by the judge or master that reflects what is necessary to ensure fairness between the parties.

This process, Cherniak says, already exists in the United States District Court for the Eastern District of Virginia (EDVA), where cases move with “lightning speed” — known as the “Rocket Docket” — with an average of 11 months from the filing of a civil case to trial.

“Cases there are controlled from the outset by a judge and a magistrate judge, assigned to each case from the outset. Strict timetables are set, and local rules govern production, discovery, motions and conferences.

"Trial dates are set at a pretrial conference following completion of discovery, usually four to eight weeks thereafter. Extensions of time and requests for adjournments are met with extreme disfavour. Trials are conducted efficiently,” writes Cherniak.

Although not all of the EDVA experience is transportable to Ontario, Cherniak says it shows “that it is possible to solve the problem of delay with local rules, if there is a will to do so.

“Case management by an assigned judge at the outset is the key; setting a timetable that must be followed being the most important aspect. Since every counsel knows that fixed trial dates settle cases, the backlog will disappear in short order,” he writes.

Although this type of system is a possible, or partial, solution to the crisis, particularly in Toronto, Cherniak says such an initiative is currently “nowhere in sight,” as the will, and possibly the resources, are lacking.

A more immediately available solution, says Cherniak, is the expanded use of arbitration.

“Commercial cases are more and more frequently resolved by arbitration. Once largely the result of the existence of a dispute resolution clause in the commercial agreement between the parties that mandated arbitration, more recently, due to the delay in obtaining trial dates and the lottery as to who the trial judge will be, parties often opt to have a prospective, or existing, dispute arbitrated,” he writes.

In light of the current crisis, Cherniak says counsel and parties should consider arbitration in all tort, family and other disputes that will likely go to trial and that are ready for early resolution.

The advantages of arbitration are well known, he explains.

“Foremost is a speedy resolution of the dispute. Where there is an agreed procedural timetable, even complex commercial disputes can be resolved in 12 to 18 months or less, including reasons. There is no reason why similar time frames cannot be achieved in tort, family and many other disputes.”

Arbitration also offers the ability to choose either a one- or three-person tribunal of either lawyers who are experienced arbitrators or retired judges available to resolve disputes, writes Cherniak, and parties can agree to strict confidentiality rules to govern the proceeding.

It is usually the losing party who pays for the services of the arbitrator and the cost of the hearing facility and the reporter, he writes.

At the same time, says Cherniak, there are some disputes — such as when a party wants a jury trial — where arbitration is not suitable.

“Arbitration is consensual, so if there are third party proceedings, unless the third parties agree to submit the claims to arbitration, there can be no arbitration. But parties can agree to arbitrate the main dispute and leave third party proceedings in abeyance, if they can get limitation waivers,” he says.

Although arbitrators are not Superior Court judges and have no inherent powers, their jurisdiction is that given to them by the submission of the parties to arbitration, says Cherniak.

“Where the parties submit a dispute to arbitration at the outset, care must be taken that the arbitration agreement covers all aspects of the dispute sought to be arbitrated, including, in a domestic arbitration, to what extent, if at all, there will be the appeal rights provided for in the Arbitration Act,” he writes.

In arbitration, the key to a speedy resolution is case management from the outset by the arbitrator or the panel, says Cherniak.

“The parties can choose the procedural rules that will govern the resolution of the dispute, from a summary process with resolution within a fixed time period to a full press litigation process using the Ontario Rules of Practice and Procedure.”

Case management, he says, leads to a number of efficiencies.

“A hearing date will be agreed to at an early case management conference. A timetable leading up to the hearing date is set. Regular case conferences will be held, usually by telephone at a convenient time, to ensure that the schedule is being met. Production and discovery are kept to the minimum necessary.

"Motions are heard by the arbitrator or panel. Reasons are given quickly, within days. Since the arbitrator or panel hearing the motion conducts the hearing, there is little incentive for parties or counsel to ‘play games’ or be obstructive,” writes Cherniak.

Arbitration hearings, he says, can be conducted efficiently using sworn witness statements as the evidence in chief, supplemented by a short oral examination, and expert reports are delivered in advance of the hearing. The arbitrator or panel, adds Cherniak, is fully briefed by the witness statements, the expert reports and agreed documents.

“Counsel agree to complete the hearing within the time allotted, obviating the delays inherent in finding new hearing days suitable to all. Reasons for decision follow within one to three months,” he writes.

Although arbitration is not a complete answer to the delays in the court system, Cherniak says its expanded use can help.

“For parties not willing or able to endure the delays inherent in the courts, arbitration is the way to go. It need not be confined to the resolution of commercial disputes. It can, and should be, broadened to include tort, family and other civil disputes,” he writes.

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