Superior Court of Justice, East Region

SUPERIOR COURT OF JUSTICE, EAST REGION

OFFICE OF THE MASTER

CIVIL LITIGATION AND CASE MANAGEMENT IN OTTAWA

Effective April 30th, 2015

Civil Case Management is alive and well in Ottawa. Appropriate levels of case management will be made available for cases that require it. It is important to recognize that unlike the situation before January of 2010, case management authority no longer resides only in Rule 77. There are various case management principles and powers throughout the rules.

The attached chart (Table 1) illustrates various forms of case management involving increasing levels of court supervision and corresponding decreased levels of party autonomy. At the most rudimentary level, there will be no need for judicial intervention and the parties will be left to their own devices subject to the administrative dismissal at the 5 year mark. At the most intensive level there will be an individual judge (or judge and master team), all motions will be heard by that judge (or judge and master) and case conferences may be convened by the court itself. In other words there will not be “one size fits all” case management but case management will be used as required.

The rules now contain five separate case management tools which are independent of each other and need not necessarily be tied together. (See Table 1 below)

Administrative dismissal of inactive actions after 5 years – Rule 48.14

Enforceable timetables established by agreement or court order (Rules1.033.04)

Case conferences which may be convened in any type of action (Rule 50.13)

Case management by a case management master (Rule 77)

Case management by an individual judge or judge and master team (Rule 37.15, Rule 77.06, s. 44,Consolidated Provincial Practice Direction)

To this may be added the trial management orders available at a pre-trial under Rule 50 (Rule 50.07) or resulting from a summary judgment motion under Rule 20. (Rule 20.05) or for that matter terms that may be imposed in disposing of any motion (Rule 37.13 (1)).

This list of rules and statutory provisions is not exhaustive. In Ottawa we have the advantage of the case management co-ordinator and case management centre in the master’s office. We have therefore attempted to simplify the process so that regardless of which rule you are relying on the process for access to case management will be the same.

RULE 48.14

As reformulated, Rule 48.14 is not truly a case management rule though it may well be a trigger for requesting that case management applies. It is a very rudimentary administrative case flow management rule. It simply provides that the registrar will dismiss the action without notice on the fifth anniversary of the date on which the action was commenced unless the action has been set down for trial or otherwise brought to a conclusion within that time.

To avoid this result the plaintiff must obtain the consent of the other parties to an extension of up to one year and file a written timetable at least 30 days in advance of the deadline. If consent is not obtained or cannot be obtained and filed at least 30 days prior to the deadline then a motion is required and the “motion shall proceed as a status hearing”. This means that the plaintiff will have the onus of demonstrating that the delay is reasonable and the defendant will not be prejudiced.

At the status motion, if the court is satisfied that the matter should proceed, the court may impose a timetable, bring the action into case management under Rule 77 or impose other terms. If not satisfied, then of course the action may be dismissed.

Another way to avoid administrative dismissal is of course to have the deadline extended or obtain exemption from the rule by court order well in advance. This could be done by motion at an earlier date or it could be an order forming part of a case management order. Accordingly this deadline should always be addressed if there is a case conference or if the action is case managed at the earliest point when it is apparent the action is one that should take more than 5 years. (See Table 2 below)

TIMETABLE – RULE 1.03 & RULE 3.04

Rule 1.03 defines “timetable” as a schedule for the completion of one or more steps required to advance the proceeding and established by order of the court or by a written agreement of the parties that is not contrary to an order.

Rule 3.04 (1) & (2) provides that generally speaking the parties may amend a timetable by written agreement but they cannot amend the deadline for setting the action down for trial in this manner as that requires a court order.

Rule 3.04 (4) provides that a party that fails to comply with a timetable may be sanctioned on any other party’s motion. Sanctions may include staying the proceeding, dismissing the proceeding or striking the defence, or such other order as is just. These are the same remedies as failure to comply with an interlocutory order under Rule 60.12. In other words timetables are enforceable.

Timetables will frequently result from schedules required by discovery plans (Rule 29.1), by schedules leading up to long motions, by agreement to postpone mandatory mediation, from trial scheduling orders or as a result of any motion. All of these are in effect case management orders or enforceable case management agreements.

CASE CONFERENCES – RULE 50.13

As of January 1, 2015 a case conference may be ordered in any action whether or not the action has been placed under Rule 77 and whether or not Rule 77 may apply. Rule 50.13 provides that a conference may be convened at the request of a party or on the court’s own initiative.

In Ottawa a request for a case conference is to be directed to the Case Management Co-ordinator in the Master’s Office using a case management request form. It is anticipated that those requests will normally be granted and will result in a case conference with one of the masters.

At the case conference, the court may create and impose a timetable, make procedural orders and extend or abridge times under the rules. The court will also assess the need for ongoing case management and may order that Rule 77 applies. On the other hand it may appear that one case conference is sufficient and no further case management appears necessary.

Note that the current procedure for obtaining long motion dates before masters or judges will continue. In such cases a case conference is convened but the parties may agree to a timetable and file it in writing in lieu of an appearance. The same procedure is used for long applications.

Case conferences will be granted for construction lien cases. Although neither Rule 50 nor Rule 77 apply to construction lien actions, s. 67 (2) of the Act states that no interlocutory procedure may be taken without leave of the court. Such leave may be obtained by a motion for directions or by means of a case conference.

CASE MANAGEMENT

Rule 77 provides that the court may case manage proceedings under this rule in the areas of the province where the rule applies if the action is not one that is excluded by the rule. In addition to the powers the court may exercise at a case conference under Rule 50, Rule 77 provides for an informal motion procedure in appropriate cases (Rule 77.07) and provides the court with general case management powers (Rule 77.04). This permits certain substantive orders that may not be appropriate at a case conference under Rule 50.

In Ottawa, Rule 77 case management is requested in the same way as case conferences generally. That is a case conference request form should be sent to the case management co-ordinator. In some cases it may be apparent that Rule 77 should apply because of the complexity of the case but in most cases a case conference will be convened under Rule 50 and the need for Rule 77 will be assessed at that time. There are criteria in Rule 77.05 (4) which must be addressed.

Very occasionally a request for case management is based on contested facts and is vigorously opposed. In such instances, it may be appropriate to seek case management by way of motion. Of course that relief might be sought on any other motion. In those cases the affidavit material should address the criteria in Rule 77.05 (4).

It is worth noting that there are different processes for case management in Class Proceedings, Estate Proceedings, or references and those are not addressed here.

Although Rule 77 powers may be exercised by judges, it is generally the practice in Ottawa for case management to be undertaken by the two case management masters. Because the masters work together as a team it is not always necessary for either master to be formally seized of the case management and case conferences or motions in case managed proceedings may be before either master.

SPECIAL CASE MANAGEMENT

In rare cases or groups of cases, it may be appropriate to appoint a specific case management judge. Various rules permit this. Rule 37.15 may be used for cases that are not subject to Rule 77 and if Rule 77 applies, a similar order may be made under Rule 77.06.

Requests for appointment of a case management judge are made to the Regional Senior Justice. If the request is on consent it may be by letter. If the request is contentious then further direction may be obtained from his office.

A judge does have the authority under these rules to case manage the proceeding and to make interlocutory orders or directions that could not be made by a master. The need to devote the time of a judge to intensive case management of ordinary civil actions has seldom arisen and the resources available for this are extremely limited.

Generally speaking even if a case management judge is appointed, the judge has the discretion to direct that motions and case management functions be heard by one of the masters. In that case the master and judge will ordinarily work together as a case management team.

Occasionally this model has been used for cases in another jurisdiction in which there is a related proceeding in Ottawa. For example a Rule 37.15 judge might be appointed to manage a group of cases situate in different judicial districts in Ontario and the judge might direct that certain issues continue to be heard by the master in Ottawa. Similarly, there might be an Ottawa action that is related to a matter on the Commercial List in Toronto. In a few cases the master in Ottawa has worked electronically in conjunction with a Commercial List judge in Toronto.

In class proceedings the plaintiff is required to seek an early appointment with one of the class proceedings judges to schedule the certification motion and the steps leading up to that motion. The class proceedings judge assigned to the case will also case manage the proceeding as provided in the provincial practice direction. A master may be involved in a class proceeding at the specific direction of the class proceedings judge.

April 30, 2015

Table 1 – Different forms of case management under the Rules of Civil Procedure

Table 2 – Operation of Rule 48.14

Table 3 – Civil Litigation in Ottawa with and without case management