PROACTIVE CASE MANAGEMENT: Some Reflections and Suggestions Justice David Brown Court of Appeal for Ontario Mr. Justice Thomas McEwen Superior Court of Justice of Ontario Society of Ontario Adjudicators and Regulators Annual Conference, November 3, 2016

THE LARGER CONTEXT FOR ANY DISCUSSION ABOUT CASE MANAGEMENT What kind of adjudicative service do we want our institution to provide to the public? Sandbox? Or Carwash?

THE SANDBOX: WHEN RULES ARE FOLLOWED

THE SANDBOX: WHEN RULES ARE IGNORED

THE SANDBOX: THE EXISTENTIAL QUESTIONS What role do adjudicators play when the case process operates like a sandbox? Party prosecution is the operating principle Adjudicator intervention is limited to: Enforcing the rules when sand is thrown? Unwittingly helping one party throw sand at the other? Helping settle the sandbox fight? Judging whose sand-castle is best at the end of the fight?

THE CARWASH

THE CARWASH

THE CARWASH: THE EXISTENTIAL QUESTIONS What role do adjudicators play when the case process operates like a carwash? Adjudicators control adjudicative time and the progress of cases: Adjudicators “latch onto” a case when it enters the tribunal system - they are the “rollers” on the “conveyor belt” Adjudicators pull [or push] the case through its various stages Adjudicators can determine whether the case needs a “light wash” or “the works” - e.g. :”light touch” case management or intensive case management Adjudicators ensure the case goes from start to finish within determined times – e.g. the carwash track might move faster for simple cases and somewhat slower for complex ones

THE KEY DECISION A TRIBUNAL MUST MAKE What role will case management play in a tribunal’s process? What are the goals of case management? Move cases from start to finish within a specified period of time? “Light-touch” case management on all/some cases by one/several adjudicators? “Heavy-touch” case management on those cases that have “gone off the rails”? Only offer case management on the request of parties? Will case management deal only with procedural issues or also address the merits of a proceeding – e.g. settlement of some/all issues?

COMMON EFFECTIVE CASE MANAGEMENT TECHNIQUES 1/ Case management is not “One Size Fits All.” Case management cannot be approached as a set of rules that adjudicators must apply in every case Use flexible case management procedures that can be adapted to suit the needs of particular cases “Slavish adherence to procedure is not the objective of case management. Rather, the fair, effective and efficient resolution of disputes is the goal.” Source: Working Smarter But Not Harder in Canada: The Development of a Unified Approach to Case Management in Civil Litigation, American College of Trial Lawyers (Canadian Chapter), 2016

COMMON EFFECTIVE CASE MANAGEMENT TECHNIQUES 2/ Assess a case and its challenges at the outset. Identify early critical facts, evidentiary problems or legal issues the case will ultimately turn on Using a single case management adjudicator is highly beneficial to efficient and effective case management 3/ Convene an initial case management conference early in the life of the case. Fix the hearing date early in the process Work back from the fixed hearing date in imposing a realistic schedule concerning various steps that must be completed prior to the hearing Source: Working Smarter But Not Harder in Canada: The Development of a Unified Approach to Case Management in Civil Litigation, American College of Trial Lawyers (Canadian Chapter), 2016

COMMON EFFECTIVE CASE MANAGEMENT TECHNIQUES 4/ Reduce and streamline motions practice to the extent appropriate and possible. Shorter and faster decisions concerning interlocutory/interim disputes are generally preferable to lengthier decisions Render timely decisions, rather than frustrating parties with delay Use informal procedures to case manage the proceeding: e.g. discuss matters by phone; meet with counsel before/after the hearing day; prohibit filing of interlocutory motions until the issue is first discussed with the case management officer Source: Working Smarter But Not Harder in Canada: The Development of a Unified Approach to Case Management in Civil Litigation, American College of Trial Lawyers (Canadian Chapter), 2016

COMMON EFFECTIVE CASE MANAGEMENT TECHNIQUES 5/ Create a culture of collegiality and professionalism by being explicit and up front with lawyers about the adjudicator’s expectations and then holding the participants to them. In terms of setting expectations, see the Standard Case Management Directions for Proceedings Case-Managed by D.M. Brown J. in the conference materials In terms of recording the results of case conferences and the expectations regarding next steps, see the Case Conference Memorandum No. 1 in Holmes v. Sinopoli, 2014 ONSC 2656, in the conference materials Also see, Hon. Jack Zouhary, Ten Commandments for Effective Case Management in the conference materials

COMMON EFFECTIVE CASE MANAGEMENT TECHNIQUES 6/ Explore settlement with the parties at an early stage and periodically throughout the process, where such conversations might benefit the parties and move the case toward resolution.

TIPS FOR SETTLEMENT CONFERENCES 1/ Understanding the issues 2/ Format of the settlement conference – when/how to meet with lawyers and clients 3/ Identifying the goals of the parties 4/ Issues of confidentiality 5/ Playing devil’s advocate

TIPS FOR SETTLEMENT CONFERENCES 6/ When do you express a view? 7/ Dealing with recalcitrant lawyers 8/ Discussing the economics of continuing the dispute 9/ How much pressure does one exert to achieve resolution? 10/ Exceptions to the usual practice