Monday, June 25, 2012

Case Management Not Granted Pro Forma

Covelli v. Sears Inc., 2012 ONSC 2437 deals with the assignment of cases to case management.  For the reasons of lack of resources as set out below, the court will hesitate to make such assignment except where it is clearly required:

[21]           Further, Rule 77.05(4) requires that the request be considered in light of Rule 77.01(1).  That Rule states:
The purpose of this Rule is to establish a case management system that provides case management only for those proceedings for which a need for the court’s intervention is demonstrated and only to the degree that is appropriate, as determined in reliance on the criteria set out in this Rule. 
[22]           This Rule must be considered in the context of where we are now with case management.  Case management began life in Ontario as a twinkle in the eye of the Bench, the Bar and the Ministry of the Attorney General.  All three groups worked together in the 1980’s to come up with a proposal for which buy-in could be achieved from all three groups.  
[23]           Three different pilot projects were launched: one in Toronto, one in Windsor and the third Sault Saint Marie in the early 1990’s.  The Sault opted out of the project and Ottawa was eventually added to the mix.
[24]           Rule 77 was born in the mid-1990’s and implemented in Toronto and Ottawa, with a modified version adapted for use in Windsor
[25]           The Toronto experience began with 25% of new actions being allocated to case management, initially all being handled by one case management (CM) master.  By  1998, it was clear that one master could not continued to take 25 % of all new cases into the project, while continuing to handle what was becoming a large and expanding inventory  all on his own.  Three more CM masters were therefore appointed in December 1998, and a further two were added in early 1999.  
[26]           Shortly thereafter, Toronto moved to 100% case management, such that all new actions commenced in Toronto were automatically assigned to case management unless they fell within a narrow group of exceptions.   Several more CM masters were appointed over time.  However, as the original stream of masters (traditional masters) retired, the CM masters began to take over more and more of their motion and reference work in addition to their own case management work.  Two of the CM were eventually moved over to do construction lien work exclusively.
[27]           The court then decided to attack the backlog of old inventory that had accumulated pre-case management. Call-over courts were introduced to reactivate those actions and to get these older action moving towards trial.   This led to considerable motion activity and the scheduling of many trials, more, it appears, than the system was able to accommodate. 
[28]           By 2004, CM master were managing up to 1,700 cases each.  At the same time, the court was becoming less and less able to meet fixed trial dates.  There was no commitment to appoint more CM masters in Toronto, other than to replace traditional masters as they retired.  It was clear that the project was unable to continue in its then form with the available resources. 
[29]           It was in the context of that environment that Rule 77 was recast to function as it does today.  As of January 2005, new cases were no longer automatically assigned to case management in Toronto.  Those already in the system stayed in the system until their resolution, but new matters were only imported into case management after that date if they met the new criteria set out in the Rule and then, to be managed as per the new “light touch” mandated by Rule 77.01(1).  This new approach is manageable with current resources – anything more is not.   As a result, case management is now reserved for those cases for which counsel can demonstrate a real need. 
[30]           In any action with two or more motions, it would likely be faster and less costly to have all motions in the action heard by a single CM master - the hallmark of case management.  In any action where counsel are having difficulty moving forward without multiple motions, having access to case conferences where issues can be discussed and worked out on a consensual basis would also be beneficial.   While many cases would certainly benefit from case management, “benefit” is not the guiding criterion.
[31]           The need for “light touch” case management and a strict gatekeeper approach to Rule 77.05(4) is particularly important now.  Two of the 11 CM masters who do all the civil work of the court within a master’s jurisdiction were recently transferred, so now perform bankruptcy and insolvency work only. 
[32]           This leaves only 9 CM masters to handle all of the civil work of the court within the masters’ jurisdiction, including case management. In addition to motions and reference work, CM masters conduct all of the court’s pre-trials in Simplified Rules matters and preside over Status Hearing Courts.  Of the nine CM masters left doing this civil work, 3 also circuit and conduct pre-trials in outlying regions.   
[33]           The support staff model for CM masters has also been modified recently, so there is no longer one dedicated staff for each CM master, to assist in tracking matters and to facilitate continuity. 
[34]           The ability to find the time and the resources needed to perform case management are, in my view, “relevant circumstances” within Rule 77.05(4) that must be also be considered on a motion of this kind.   The CM masters’ current situation underscores the need for the court to be very selective about what it transfers into case management. 

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