Civil procedure

8. Managing the Process Case Planning Conferences

Overview: Case Planning & Case Management

Current Trends

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  The court system is trending towards more case management by judges
  
  • 
    Moving away from adversarial approach where judge is simply neutral, detached
    
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  This represents a marked shift away from the historical origins of common law civil procedure
  
• 
  Changes are being made to create in our traditional adversarial system, something that is making it look more inquisitorial – specifically in the way in which judges are being forced to manage litigation as much earlier in the process
  

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  Case planning was intended to be a significant aspect of civil litigation under the new rules – presumably in support of the “speedy” and “inexpensive” aspects of Rule 1-3(1) and the “proportionality” requirement in Rule1-3(2)
  
  • 
    In an attempt to alleviate trial docket backlogs and to ensure improved access to justice.
    
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  Case management is about imposing time standards and regularly reviewing the status of litigation matter
  

Both are very concept of shifting control over certain aspects of litigated action from parties  to the judiciary marks a significant shift from the traditional model

MULTI DOOR COURTHOUSE THEORY

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  Think about how Hryniak advocates for this culture change – access to justice requires different and less expensive ways to address disputes
  
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  From a policy perspective – the case management framework is clearly underpinned by focus on judicial efficiency in managing cases and in achieving the settlement of those cases at an earlier and more cost-effective stage in the proceedings
  
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  Settlement appeals to parties as it lessens the risk of the “all or nothing” remedy usually found in the courts
  

Purposes of managing the civil process

1. 
   Getting judges to push things towards trial
   
2. 
   Make sure that interlocutory applications work in a civil fashion (particularly for the self represented litigants)
   
3. 
   Opportunity to deploy alternative dispute resolutions or other techniques around settlements.
   
4. 
   Can use masters as well as judges, therefore freeing up judges from having to do all the work themselves.
   

3 Aspects to Current civil litigation process that reflect reforms to ADR

1. 
   Case management/case planning
   

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  Having a judge assigned to oversee the case – impose standard and oversee the litigation early
  
  • 
    this imposes time standards, regular review of the status of the litigation from the pleadings phase, through the discovery phase, pre-trial applications to trial
    
• 
  Marks shift in traditional role of judges, controversial especially with older judges who are used to the traditional system
  

2. 
   Mediation connected to the court process
   

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  O.(G.) v. H. (C.D.) – deals with mandatory mediation
  
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  Mediation is distinct where the person doing the mediating is NOT making a decision – unlike the judge
  
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  They look at what the parties have to say
  
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    Understand where they come from and then try to communicate the strengths and weaknesses of each parties case to the other in order to encourage settlement
    
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  Relays messages to each party in separate rooms and explains why they need to either increase or decrease on the things they want
  

3. 
   Settlement of Actions
   

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  Essential component of our system – helps maintain efficient levels of the number of actions that ultimately require adjudication
  
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  Allows parties to negotiate for resolution through proess driven by self-interest and evalutation of the comparative strengths and weaknesses of the respective positions
  
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  When one party makes formal offer to settle a case and one party refuses – the cost consequences can be high for the refusing party
  
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  Costs
  
  • 
    Compensatory – meant to discourage punishments, decrease inappropriate behaviour, decrease unnecessary steps in litigation
    

Case Planning Conferences – Case Planning + Case Management

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  Case Planning & Case Planning Conferences will occur in front of a master (who you must seek out).
  

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  Normally a one-time event that sets the time line for what is to come next  sets out a plan for how long, how many witnesses, etc.
  
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  In Part 5 of Rules – p.16 – case planning order is arrived at that sets out the plan for the litigation
  

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  Case planning conference where one applies for case management, or is sometimes ordered.
  

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  Case management is when one judge is assigned to a case – and that judge will be the trial judge
  

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  CM used to be automatic for cases 20 days or longer – BUT now through practice direction have to apply for it. CM not normally available until closing of pleadings.
  
• 
  Functions:
  

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  Helps to prepare both parties for trial. Helps to stream-line the process.
  

 Sets the stage in advance.

Creates a responsibility to the judge on sticking to what your plan was (ex – how many witnesses, or experts, and for what reasons). If you tell case planning judge one thing, and show up with another. The judge may disallow this.

 Parties must thoughtfully think through case well in advance. Point is to make it fair & efficient

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  Helps to minimize or eliminate costly delays
  
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  Saves judicial resources
  
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  Saves resources of litigants
  
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  Helps to minimize the need for excessive use of alternative judicial resources
  
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  Helps to funnel the case into ADR/Mediation/Arbitration
  

*Note: Many cases settle due to the judges who are assigned to the cases. Lawyers are aware (or can research) the track record of a judge and decide it is in their best interest to settle instead.

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  Strategy considerations must be taken into account when a judge is seen so far in advance. Many lawyers will use subtle methods to convince the judge of their case in advance.
  

Part 5 SCCR – Case Planning

Rule 5-1 to 5-4 – p.16 to 19

Case planning entails having the judge impose standards for both parties to follow early on in the

litigation.

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  Involves setting dates to file pleadings, affidavits, motions, etc.
  
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  This also incl. reviewing the status of litigation as it progresses to make sure all the necessary steps are taken to resolve the issues both in the suit as well as procedurally.
  

Rule 5-1 (p.16) – Request Case Planning Conference [Can be requested or ordered]

Parties must exchange CM plans. Details will include how long trial is, where evidence is coming from, what witnesses/experts will come, etc.

Plaintiff sends, defendant agrees/disagrees/modifies – Go before judge/master to settle final plan

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  Case planning conferences (CPC) can be started by either the party or the court.
  
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  Very often the court will be the one to initiate the case planning process, if they recognize that there is a self represented litigant which may need more of a hand  5-1(2)
  

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  One of the duties on judges is that self represented litigants have as much info as they need to understand the process and what they have to do.
  
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  Though the courts may not leave their impartiality and help them too much.
  

1. 
   Parties may request case planning conference once the pleading period has expired [by obtaining date and time from the registry and filing a notice of conference in form 19)
   

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  P makes plan & sends it to the D and then they appear in court to have the judge confirm the plan
  

2. 
   Court may direct that a party request a case planning conference [at any point in the proceedings]
   

• 
  Often, the Court will be the one to initiate the case planning process
  

3. 
   The first case planning conference requires 35 days notice
   

1. 
   Subsequent to the first conference a party can
   
2. 
   Request additional conference on 7 days notice
   

(5) Prior to the first case planning conference, the requesting party must file and serve a case plan proposal within 14 days of the notice; then each party of record must file their own case plan proposal and serve it within 14 days of receipt

6. 
   CONTENTS - A case plan proposal in Form 20 must provide the parties’ suggestions for:
   

1. 
   Doc discovery
   
2. 
   XFD
   
3. 
   Dispute resolution procedures
   
4. 
   expert witnesses
   
5. 
   witness lists
   
6. 
   trial type, estimated length, and preferred periods for trial date.
   

Parties then appear in court and have a judge confirm the plan

 This is the conference and it must be conducted in accordance with Rule 5-2
Rule 5-2 (p.17) – Conduct of Case Planning conference

1. 
   CPC must be conducted by a judge or master, and must be recorded.
   
2. 
   Each lawyer must attend, plus party if they are self-rep
   
3. 
   First meeting have to be in person, subsequent by phone
   

Rule 5-3 (p.17) - Case Planning Conference Orders

Judge or master must make an order

(1) Broad list of orders the judge or master may make, including “any other orders considers will further the object of the rules”

(2) A case planning conference judge/master CANNOT:

(a) hear an application supported by affidavit evidence

(b) make any order for final judgment

(3) The decision of the court re: process are expressed in a case plan order at the end of the conference.
Rule 5-4 (p.19) - Applications to amend case plan orders

Must make applications to amend CM plans

Rule 12-2 (Trial Management Conference): TM Conference must take place 28 days before start of trial before judge to assess if parties are ready to litigate

Designed to save judicial resources. Court time is extremely valuable and asking for an adjournment one day before a large trial is not cool. Alternatively, if you’re ready, it guarantees that you are taking it seriously and are ready to rock and roll

Allows judge to evaluate estimates given by parties as to how long litigation will last.

It may be the case they need more time than what is currently scheduled.

Practice Directions for Case Planning

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  The rules of court are regulations passed by the legislature pursuant to a statute
  
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  These are guidelines lawyers should follow BUT don't have the same force of law that court rules would have
  
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  Formalized by the supreme court justice of B.C.
  
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  They are additional structural or procedural initiatives to clarify certain aspects of litigation when this is not dealt with by the courts through the civil rules formally
  
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  Formally any case that was estimated to be 20 days in trial or longer was going to be automatically case managed
  
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    A judge would be automatically assigned to oversee cases of that duration