1 EFFECTIVE CASE MANAGEMENT IN THE FEDERAL COURT Prothonotary Kevin R. Aalto August 16, St. John's, NL August 16, St. John's, NL

2 Overview  Introduction to the Federal Court  Case Management (CM)  The Five Fundamentals of CM 1. Federal Courts Rules, Part 9 2. Prothonotaries 3. Flexibility 4. Accessibility 5. Accountability  Appellate Review in Case Management

3 Introduction to the Federal Court  National Court  Statutory Court – Federal Courts Act plus approx. 100 other federal statutes  no inherent general jurisdiction  regular sittings across the country  Federal matters  32 Judges; 6 Supernumerary Judges; and 6 Prothonotaries

4  Main Areas of Jurisdiction  Immigration  Intellectual Property including proceedings under the Patented Medicines (Notice of Compliance) Regulations  Aboriginal claims  Admiralty  Judicial Reviews of federal boards, commissions or other tribunals

5  National security issues  designated proceedings - security certificates  warrant requests  public disclosure of evidence (s. 38 of the Evidence Act)  Some statistics  38,441 proceedings instituted  23,387 judgments, orders and directions in  Over 1,200 cases actively case managed

6 What is Case Management?  Case management, or specially managed proceedings, is the coordination of Court processes and resources intended to move cases in a timely manner from commencement to disposition, regardless of the type of disposition. It involves active supervision by a Case Management Judge of the progress of cases and introduces new supervisory activities such as status reviews, dispute resolution services, and trial management conferences

7  Labour intensive – % of CMJ’s time  Resource intensive - need experienced Case Management Officers  Art not a science

8 Objectives of Case Management  To reduce unnecessary costs and delay  To facilitate early and fair settlements  To bring cases promptly to a just result  To allow sufficient time for the conduct of the proceeding

9 Case Managed Cases  All Applications under the Patented Medicines (Notice of Compliance) Regulations  Complex actions  Cases where nothing has happened (status reviews)  All Class proceedings  Over 1200 proceedings are case managed by Prothonotaries appointed as Case Management Judges

10 The Five Fundamentals of Case Management

11 1.Federal Courts Rules - Part 9 “Case Management and Dispute Resolution Services”

12 Case Management Rules  Rule 3 – General Principle of the Federal Courts Rules:  Interpret and apply the rules: in every proceedingin every proceeding justjust most expeditiousmost expeditious least expensiveleast expensive determination on its meritsdetermination on its merits

13  Rule 383 – Appointment of Case Management Judge (“CMJ”)  Rule 385 – Powers of a CMJ Case Management Rules

14 How does a case become Specially Managed?  Status Reviews  Rule 380(1) – Actions 180 days from date of issuance and no defence filed/ no default judgment180 days from date of issuance and no defence filed/ no default judgment Notice of Status ReviewNotice of Status Review 360 days no requisition for Pre Trial Conference – automatically into CM360 days no requisition for Pre Trial Conference – automatically into CM  Rule 380(2) Applications 180 days from date of issuance no requisition for a hearing180 days from date of issuance no requisition for a hearing Notice of Status ReviewNotice of Status Review

15 How does a case become Specially Managed?  Result of Status Review  Proceeding dismissed or –  Order proceeding be specially managed and issue an order under Rule 385  Request of parties  Streamlining Complex Litigation – May 1, 2009 (Notice to the Profession)  Request may be by letter – motion not necessarily required

16 How does a case become Specially Managed?  By Order of the Court  Court may at any time order CM (Rule 384) or on Court’s motion – Rule 47  All PM(NOC) Proceedings  Practice Direction – December 7, 2007  Class Proceedings  Rule 384.1

17 Powers of a Case Management Judge  Rule 385  CMJ deals with all matters prior to trial or hearing  Give directions to satisfy Rule 3  Fix timelines notwithstanding any other rule  Fix and conduct Dispute Resolution Conferences  Hear and determine all motions prior to assignment of hearing date

18 Tools of Case Management  Governed by Rule 385  Case conferences  Motions  Orders and Directions  Trial management conferences  Dispute Resolution Services  Mediation  Fixed trial dates

Prothonotaries

20  Judicial officers with full judicial independence  6 regionalized Prothonotaries (Associate Judges)  2 in Ottawa; 2 in Toronto; 1 in Vancouver; 1 in Montreal  Jurisdiction – Rule 50:  interlocutory proceedings  case management  mediations  simplified trials - currently $50K  have final jurisdiction on motions to strike any type of proceeding in any amount  appointed by the Chief Justice as Case Management Judges

Flexibility

22  Proportionality principle  Not a “one-size fits all” or cookie cutter approach  Make the Rules fit the case not the case fit the Rules  Active v. Passive: CM is not babysitting – interfere in the case only as needed or necessary  No motions without first holding a case conference  Cajole factor  A CMJ needs “patience, flexibility, firmness, ingenuity, and an overall sense of fairness to all parties”

Accessibility

24  Case conferences – at any time – any place – usually by telephone  Get involved early in the complex cases  Give directions for conduct of cases  Review status and timetable of litigation  Discuss and manage and often settle issues on the spot - i.e. production issues/confidentiality/refusals on examinations/expert reports/hearing dates  Have positions set out in correspondence  Get a sense of whether and when settlement should be explored – mediation?

Accountability

26  Make them give dates for scheduling of steps  How much time do you reasonably need to complete the next step?  Scheduling orders  Have one party keep minutes and alternate between parties (we now use DARS for many hearings)  Have an agenda in advance –with positions of parties on the issues to be addressed  Provide Court with updates of progress  Determine when hearings judge might get involved

27 Appellate Review in Case Management

28  Sawridge Band v. HMQ, 2006 FCA 228 per Evans J.A.: [21] First, this Court is very reluctant to interfere with decisions made by a judge in the course of managing a matter prior to trial, particularly one as complex, lengthy and difficult as this one. As a result of living with the matter over time, the case management judge will have acquired an overall understanding of it which an appellate court, on the basis of hearing an appeal on a particular issue, cannot possibly match in either depth or breadth. [22] When performing essentially case management functions judges are appropriately given "elbow room" by appellate courts, so that they can get on with what is often a difficult job, calling for a mix of patience, flexibility, firmness, ingenuity, and an overall sense of fairness to all parties. [emphasis added]

29  See also j2Global Communications Inc. v. Protus IP Solutions Inc., 2009 FCA 41, again per Evans, J.A.: It has often been said in this Court that, because of their intimate knowledge of the litigation and its dynamics, prothonotaries and trial judges are to be afforded ample scope in the exercise of their discretion when managing cases... Since this Court is far removed from the fray, it should only intervene in order to prevent undoubted injustices and to correct clear material errors. None have been demonstrated here. It has often been said in this Court that, because of their intimate knowledge of the litigation and its dynamics, prothonotaries and trial judges are to be afforded ample scope in the exercise of their discretion when managing cases... Since this Court is far removed from the fray, it should only intervene in order to prevent undoubted injustices and to correct clear material errors. None have been demonstrated here.

30 Questions???