Concerned about serious delays in the civil justice system in Toronto, a three-year pilot project was implemented effective January 1st 2005, with an objective to reduce delay and cost in civil cases. A Practice Direction in this regard was issued by the Regional Senior Justice, Honourable W. K. Winkler on November 22, 2004.
Until the Practice Direction came into effect, all civil actions commenced in Toronto, with a few exceptions, were assigned to Case Management under Rule 77 of the Rules of Civil Procedure.
Because of the large number of cases in Toronto Region, this automatic application of the Rule 77 was ultimately problematic due to the sheer volume of cases to be managed. Under the new Practice Direction, for the duration of the pilot project, cases were no longer automatically assigned to Case Management.
Rather, a need-based, targeted case management system was implemented, whereby cases could be assigned to Case Management by the Regional Senior Judge where the need for court’s intervention was demonstrated. Under this Practice Direction the parties are expected to assume greater responsibility for managing actions, thereby freeing up court resources.
The Practice Direction was incorporated into a new rule (Rule 78), which came into effect on May 6th 2005 and will be revoked effective May 6th 2008.
One of the important implications of the new Rule was the way Rule 24.1 (Mandatory Mediation) applied to civil actions commenced in Toronto.
Before the coming into effect of Rule 78, Rule 24.1 applied only to actions governed by Rule 77. It also applied in actions governed by Rule 76 (Simplified Procedure), but only if they had been assigned to mandatory mediation by the Regional Senior Judge.
(Ontario's Simplified Procedure rules apply in cases where the amount claimed is not greater than $50,000.00. In these matters, a streamlined process is available to litgants to expedite trials and reduce the expense of court proceedings).
With the implementation of Rule 78, mediation became mandatory for all cases, including wrongful dismissal cases governed by Simplified Procedures, but the timelines changed.
A new sub-rule (24.1.09.1) was incorporated in Rule 24.1, which applied only to actions governed by Rule 78. Mandatory mediation applicable to cases that are subject to Rule 78 is more flexible than was the case under Rule 77 Case Management regime.
Under Rule 78 parties are encouraged to mediate at the earliest stage of the proceeding at which it is likely to be effective In any event, mediation must be conducted within 90 days of setting the action down for trial and before the pre-trial. For wrongful dismissal and simplified procedure cases parties must engage in mediation within 150 days after the close of pleadings.
The downside of the flexible approach adopted under the special mandatory mediation rule for Rule 78 actions is that it is easy for a party to delay by not agreeing to a mediator in a timely fashion. Under the mandatory mediation rule applicable to non-rule 78 cases, if the parties do not select a mediator within a specified period of time, a mediator is assigned by the mediation coordinator of the Court. This acted as a serious disincentive against delaying the proceeding, because generally parties want to go to a mediator who they feel confident about, and do not like to have a mediator imposed by a third party.
While parties can still approach the mediation coordinator to assign a mediator, this is usually seen as the last resort and by the time a party approaches the mediation coordinator for assistance, by that point, much time may already have been wasted. This is a serious drawback in the mandatory mediation regime established under Rule 78 - it may in some cases cause the very delays it sought to remove.
This special mandatory mediation rule applicable to Rule 78 actions also comes to an end on May 6th 2008. Thereafter, the pre December 31st 2004 regime of mandatory mediation is expected to revive, unless the Pilot is extended or a new Practice Direction issued.
The Pilot Project will be evaluated at the end of its term in May 2008.
- Shashi K. Raina, Toronto