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Newsletter > January 2005


Several years ago, the Ontario Bar and all of its litigants were introduced to the Toronto case management system under Rule 77 that at once romanced and spurned us. What must have seemed like a good idea at the time turned out to be an expensive, time consuming, over regulated system (although admittedly not without its benefits). We did get used to it.

With the introduction on December 31, 2004 of yet another pilot project to address backlog reduction, it is now recognized that case management has a place in our system (just as it always has). But, like fashion, everything old is new again and this time with an apparent homage to the Federal Court system. There is a return to the old ways allowing counsel and parties to once again assert control over the destiny of their lawsuits. We can now resurrect such strategies as setting an action down when we will or, conversely, allow a file to sleep. There is once again reliance on the Rules of Civil Procedure, an essential tool in any litigation.

Cases will no longer automatically be assigned to case management. Like the Federal Court system, a case will be assigned to case management upon motion where there are special circumstances or significant delay or parties can do so on consent. There is no longer an ability to choose matters on fast track. Mandatory mediation at an early stage has now thankfully been discarded. Mediation must still be conducted no later than ninety (90) days after the action is set down for trial, which is now required within two (2) years after the filing of the Statement of Defence. Failure to do so will result in the issuance of a Status Notice by the Registrar. The plaintiff will then have ninety (90) days to take certain steps or the action will be dismissed for delay. The court may also order a status hearing, which again is an old concept revisited but used well by the Federal Court. The court, we are advised, will continue to intervene to prevent delay or obstruction and it is assumed that we now return to the use motions to compel the co-operation of parties or counsel opposite. One can but hope that the Court will introduce some sort of telephone case conference for this type of problem. This is the one area where case management worked; that is, the ability to convene a case conference on various matters by telephone with all parties and without the expense for the parties of an attendance and associated long motion lists.

Gone are the Trial Scheduling Courts where counsel would sit for hours to be heard. Trial dates are now to be scheduled at the Pre-Trial which is the way it used to be and has always been for Simplified Rules matters. Notice of Pre-Trial Conferences are mailed to all parties after the action has been placed on the trial list and a minimum period of ninety (90) days notice will be provided. An adjournment of the Pre-Trial Conference can be made within thirty (30) days of the actual date, although there is no indication in the practice direction as to whether or not such adjournment must be on consent. There is apparently a “no adjournment” policy for trial dates which is once again similar to the Federal Court system.

It seems to me that we will get used to this new system and then the powers that be will change it.

Kim E. Stoll

This newsletter is published to keep our clients and friends informed of new and important legal developments. It is intended for information purposes only and does not constitute legal advice. You should not act or fail to act on anything based on any of the material contained herein without first consulting with a lawyer. The reading, sending or receiving of information from or via the newsletter does not create a lawyer-client relationship. Unless otherwise noted, all content on this newsletter (the “Content”) including images, illustrations, designs, icons, photographs, and written and other materials are copyrights, trade-marks and/or other intellectual properties owned, controlled or licensed by Fernandes Hearn LLP. The Content may not be otherwise used, reproduced, broadcast, published,or retransmitted without the prior written permission of Fernandes Hearn LLP.

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