Wise Law Blog: The Osborne Report: Ontario's Civil Justice Reform Project

Friday, November 23, 2007

The Osborne Report: Ontario's Civil Justice Reform Project

The Honourable Coulter A. Osborne, Q.C. 's Civil Justice Reform Project has reported to the Ontario Attorney General with an extensive list of recommendations aimed at streamlining civil court processes, reducing the cost of litigation and improving access to Justice in the Province.

Among Osborne's key and most interesting recommendations:

More judges must be apppointed by the Federal Government;

The monetary jurisdiction of the Small Claims Court should be increased to $25,000. The increase should be staged. The court's monetary jurisdiction should be increased immediately to $15,000 with a further increase to $25,000 within two years. There should be no right of appeal from Judgments for less than $1500.00

Litigants should be able to be represented by a paralegal or agent in Small Claims Court appeals and enforcement (contempt) matters in the Superior Court or the Divisional Court.

The monetary jurisdiction of simplified procedure matters under rule 76 should increase to $100,000 on a province-wide basis, to be implemented as soon as practicable. Summary determination and trial procedures should be extended.

The Courts of Justice Act should be amended to permit the court to dispense with a civil jury on its own motion.

The Office of the Chief Justice of the Superior Court of Justice should consider issuing a Practice Direction that would state the court may refuse to grant any discovery relief, or may make appropriate cost awards on a discovery motion, where parties have failed to consider and, to the extent reasonable, apply the E-Discovery Guidelines and The Sedona Canada Principles, in particular, the requirement to meet and confer regarding the identification, preservation, collection, review and production of electronically stored information;

Judges skilled in negotiation and with expertise in the relevant subject matter should, where possible, preside over pre-trial conferences.

Amend rule 50.04 to permit the pre-trial judge to preside at trial where the parties consent.

The Civil Rules Committee should consider and recommend to the Attorney General changes to the Courts of Justice Act so that only orders finally disposing of an action/application would be appealable to the Court of Appeal. Appeals from all other orders would be to the Divisional Court. The Civil Rules Committee can best determine if leave should be required and, if so, on what basis leave would be granted.

A committee of nine - comprised of a member of the bench, bar and courts administration from a small, medium and large court location in Ontario - be struck to make recommendations, jointly to the Attorney General, the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario, on technological improvements that may be made at each of the three court locations. Recommendations should be detailed, taking into consideration policy, legal, cost and operational impacts. They should also include a process to evaluate any improvements implemented.

Rules 1.08 and 37 should be amended to permit a party to propose, or the court to order on its own initiative, that any matter referred to in rule 1.08 be heard by telephone or video conference.

The Office of the Chief Justice of the Superior Court and the Regional Senior Justices of each region consider:
-The introduction of 9:00 or 9:30 a.m. chamber hearings to deal with ex parte, scheduling, consent or other matters that need less than 10 minutes and that would otherwise appear on motion lists. The chamber hearing would be in person or by teleconference.
-The use of more specific time slots for the hearing of motions (e.g., morning and afternoon slots) to reduce wasted waiting time in court.
-Greater use of teleconferencing for short motions. Amend rules 1.08 and 37 to permit the court to schedule and hear a matter by teleconference on its own initiative, or where requested by a party.

Judges should move to zero tolerance mode when confronted with uncivil behaviour in the courtroom. There is an array of remedies available, including moral suasion, reporting the offending counsel to the Law Society, cost orders and, in egregious circumstances, the contempt process. Lawyers should not be reluctant to report instances of uncivil behaviour to the Law Society. If the Law Society does not know about uncivil conduct, it can hardly be blamed for not responding to it;

The Rules of Civil Procedure should include, as an overarching principle of interpretation, that the court and the parties must deal with a case in a manner that is proportionate to what is involved, the jurisprudential importance of the case and the complexity of the proceeding.

Counsel should be required to prepare a litigation budget and review it with a client prior to commencing or defending any proceeding. This budget should be updated at least when examinations for discovery are completed. The Law Society of Upper Canada should also consider making this an express requirement for the profession under the Rules of Professional Conduct.