The cost of civil litigation has risen astronomically over the last dozen years and continues to rise, which is drastically affecting litigants’ access to justice. Costs awarded in court proceedings have also followed suit. A good example is costs awarded on Masters’ motions, which have risen from the $500 range to over thousands. As a result, many meritorious actions are not reaching trial for a verdict on their true merits but are decided by the cost consequences of interlocutory procedural motions. Rule 1.1 of the Ontario Rules of Civil Procedure addressing proportionality has the goal of bringing the steps followed in civil proceedings and thus the costs of civil proceedings awarded by the courts in Ontario in line with the importance and complexity of the issues raised in and the amount claimed in the action. My fees in ADR proceedings are determined on the basis of proportionality.
Special ADR services tailored to the same principle can reduce the costs of civil litigation. For example, arguing interlocutory motions by telephone conference rather than in person reduces both counsel and arbitrators’ fees and disbursements. The disposition of motions in pending civil actions by innovative tailored arbitrations can bring about timely and cost effective resolutions of not only interlocutory but also summary judgment motions while ensuring a right of appeal. Real time disposition of objections to answering questions on examinations for discovery and on cross-examinations by arbitration can significantly reduce the interlocutory costs in a pending civil proceeding and speed up preparing the action for trial.
In construction lien actions, the conduct of pre-trials for directions by a knowledgeable referee via telephone conference can serve to narrow the issues, vet the claims for lien, ascertain the remuneration and bring the reference to settlement or a very focused trial. This approach is particularly applicable to Regions outside of Toronto where there are no Case Management Masters available to conduct construction lien reference pre-trials for directions.
In structuring my fees for ADR services I apply both proportionality and innovative tailored ADR services to reduce costs but at the same time to assist the parties in arriving at a just disposition.
FIXED FEE FOR SHORT INTERLOCUTORY MOTIONS
For short arbitrated motions in pending civil proceedings heard by telephone that take less than 1 ¾ hours to argue inclusive of the review of the motion material, responding material, facta and my written decision, my fee is $950 plus HST with the parties making the telephone conference arrangements at their expense.
FIXED HOURLY RATE FOR PRE-TRIALS FOR DIRECTIONS IN CONSTRUCTION LIEN ACT REFERENCES
In a Construction lien reference pursuant to section 58 of the Construction Lien Act, for the review of the pleadings and proceedings including the judgment of reference and to conduct pre-trials for directions by telephone with the parties making the telephone conference arrangements at their expense, my fee is $400 per hour or any part thereof plus HST. The fees applicable for pre-trials for directions by appearance and for the balance of the reference, including preparation for trial, the conduct of the trial and written reasons are subject to negotiation and agreement on the basis of proportionality and innovative tailored trials (several example are: mini-trials on specific issues, Rule 76 summary trials, trials on affidavit evidence alone, etc.).
FEES FOR OTHER ADR SERVICES
Fees in all other matters are subject to negotiation on the basis of PROPORTIONALITY AND INNOVATIVE ADR. In advance, I will discuss with the parties’ counsel my fees applicable to a particular proceeding taking into consideration the number of parties, the importance and complexity of the issues raised by the claim, the amount in issue and the tailoring of an innovative ADR solution for the claim.
All disbursements are the responsibility of the clients and their lawyers except for mileage. I do not charge mileage for the delivery of ADR services in the Municipality of Metropolitan Toronto, the Regional Municipalities of Durham, York, Halton and Peel and the County of Simcoe, only disbursements incurred for parking expenses are charged. Mileage or the cost of travel is charged outside these geographic areas.
Before any ADR services are rendered, a fee agreement for the particular service must be entered into and generally any fixed fees must be paid in advance. In a continuing matter, payment is required by advance deposit on account of fees.
For further information or to book a telephone conference to discuss fees, please contact me at (416) 617-4802 or email me at firstname.lastname@example.org.