As a litigator and Case Management Master, I repeatedly observed two key questions posed by clients in respect of their pending claims:“Why does it cost so much?” and Why does it take so long?”.
Innovation and proportionality was the cornerstone of my 30-year practice as a litigator and of my 16-year judicial service as a Case Management Master. I’m utilizing these career-defining traits along with my extensive experience and intuitive problem-solving skills in my ADR practice, to reduce costs and time to settlement for my clients. Listed below are a number of innovative ADR service solutions answering the cost and timing questions posed by clients. This list is not exhaustive and can be expanded by the ingenuity of counsel and the ADR service provider. The experience of the ADR service provider is paramount and these solutions are based on my particular experiences with both the subject matter of the claim and the procedure involved.
Refusals and Under Advisements
Civil litigation, particularly in the Toronto Region, is plagued by motions to compel answers to questions refused or taken under advisement on examinations for discovery or on cross-examinations. With a delay exceeding six months to have a masters’ motion heard in the Toronto Region, the disposition of the motion to compel answers and any attendant re-attendance to answer questions as ordered by the court can take well over a year from the initial attendance. This is generally an unacceptable delay to clients in the advancement of an action or motions especially summary judgment motions. The solution: real time disposition of the objections by an arbitrator who is briefed on the pleadings and the matters in issue. The arbitrator would be available by telephone to make decisions on objections during the currency of the examination for discovery or cross-examination with the result that motions to compel answers become redundant. As a Case Management Master, I have extensive experience deciding motions to compel answers.
As of mid-2013, the available dates for booking judges’ and masters’ motions in the Toronto Region were over six months out. In other Regions where running motions lists are used, counsel have repeatedly attended court expecting their motion to be heard only to realize they have been bumped to another day. In some Regions given the length of the lists, bumping occurs a number of times. Arbitrated motions have the advantage of a set hearing date and time, which can be fixed in a timely manner limited only by counsel’s availability. Hearings can take place in the evenings or even on weekends. Arbitrated motions are fully appealable (sections 45(20 and 45(3), Arbitrations Act. The arbitrated motion proceedings initially are confidential, and the disposition can be enforced in the court (section 50, Arbitration Act). Innovative methods of hearing arbitrated motions can be agreed to, for example in writing on the basis of affidavits and written submissions or by telephone on a similar paper record. I have determined that telephone hearings are particularly well suited for procedural motions within masters’ jurisdiction, and I am available to arbitrate such motions.
Pre-Trials For Directions In Construction Lien Actions
When a construction lien action proceeds by a section 58 reference of the Construction Lien Act, parties have an advantage during the pre-trial for directions phase. In Toronto, the experience is that a substantial number of the references are resolved without trial as a consequence of the conduct of and directions made at the pre-trial for directions phase. At pre-trials for directions, many issues are addressed and resolved such as completion of pleadings, verification of the timeliness and quantum of lien claims by vetting committee (very important when multiple lien claims have been registered), determining the amount of money available for the parties at each level in the construction lien pyramid and determining specific issues which can lead to decisions as to whether the lien claims should be pursued. For example, if a general contractor has gone bankrupt and Revenue Canada is advancing a priority claim that will eat up all the available monies leaving nothing for the lien claimants, Revenue Canada’s claim to priority should be decided first by motion in the reference before any other issues relating to the lien claims are addressed. If there is no money available to satisfy the lien claims at the end of the process, there is no economic sense in pursing the lien claims.
Section 58 permits a construction lien action to be referred for trial by judgment of reference to a person agreed upon by the parties. The judgment of reference can be obtained by a party on motion (section 58(1)) or be granted by a judge at trial (section 58(3)). Although the judgment of reference refers the whole action up to and including the trial, the parties can agree with their chosen referee that they wish the referee only to conduct the pre-trial for directions phase. Once the phase is completed, and if the action has to go on to trial pursuant to Rule 54.10, a motion can be made to have the reference set aside and set down on the trial list on the basis that the “referee is unable for any reason to continue”. A reference where pre-trials for directions are conducted by telephone can serve to bring about resolution on a cost effective basis. Acting as a referee in construction lien actions is one of my particular areas of expertise where I can leverage my experience as a lien master in conducting pre-trials for directions.
Settlement Conferences/Mediations In Construction Lien Actions
In Toronto, if the parties agree they can have recourse to a judicial settlement conference before an experienced lien master. Settlement rates for these conferences are in the 90% range. The lien master brings his or her past experience in conducting construction lien references to trial and can give the parties a realistic evaluation of the likely outcome of their action if it goes to trial. In addition, the experienced lien master can knowingly address the specific issues, which the parties have identified as being in dispute. The settlement conference has some similar attributes to mediation, such as, caucusing. Success rates for settlement conferences are extremely high because they are consensual, they have adequate time set aside to conduct them, and most importantly, they are based on specialized judicial experience. I was instrumental with another lien master in setting up the settlement conference process for referred construction lien actions in Toronto. I am available to conduct such conferences/mediations, particularly outside of Toronto where the lien master court settlement conference service is not available.
References by order of the court, of specific issues or even the whole action, to a person other than a judge, master or prothonotary, that is, to a person of the parties choosing is under used. The reference procedure is advantageous because issues can be expeditiously decided by innovative, cost effective procedures and methods as determined by the parties with their chosen referee’. Such references are permitted both by Rule 54 of the Ontario Rules of Civil Procedure and Rule 153 of the Federal Court Rules. When these references are ordered by the court the normal progress of the action is usually stayed while the matters referred are decided. Based on my experience as a litigator and master, I can conduct such references including those in commercial disputes, construction disputes, trust claims, Intellectual property disputes (particularly patent and generic drug products), planning and environmental disputes, human rights disputes, and regulatory disputes.