Civil Law Town Hall Meeting. October 30, Edmonton Courthouse, Courtroom 317 MINUTES

Transcription

1 Civil Law Town Hall Meeting October 30, 2013 Edmonton Courthouse, Courtroom 317 MINUTES ATTENDING: Judges/Masters: Nielsen J, QB Civil Law Steering Committee (CLSC); Topolniski J, CLSC, Co-Chair of QB Commercial Practice Group; Graesser J, CLSC, Rules of Court Committee (RoCC); Slatter JA, Chair, RoCC; Rooke ACJ; Reed, Acton, Crighton, Ouellette, Belzil, Moen, Brown, Simpson JJ; Masters Breitkreuz, Smart, Schulz Various Court staff and members of the Bar DISCUSSIONS: Nielsen J chaired the meeting. He began by introducing some of the members of the CLSC in attendance; Slatter JA and Graesser J of the RoCC; and QB co-ordinators in attendance, including Peggy Lewis (justice special chambers of ½ day or less, app ns of more than 1 hour, family, JDR) Sharon Hinz (commercial duty list, case management, case conferences) and Bonnie Mitchell (civil trials, justice special applications of 1 day or longer or with viva voce evidence) JDRs Nielsen J explained that notice to the profession (NTP) , issued January 12, 2013, arose as a result of a review undertaken by the JDR Subcommittee of the CLSC and its recommendation that the mandatory ADR Rule be temporarily suspended due to the bottleneck it was creating in getting matters to trial. NTP , issued April 29, 2013, also resulted from a recommendation of the Subcommittee that priority be given in scheduling JDRs to certain matters seen by the Subcommittee as potentially urgent. Nielsen J commented that the urgency of these matters does not appear to have been recognized by the Bar. Nielsen J noted that for this term, there is one less judge assigned to JDRs in each of Edmonton

2 2 and Calgary. As a result, there are only two judges assigned in each of those centres per week, each hearing up to three JDRs per week. Court Co-ordinator Peggy Lewis spoke to scheduling and the priority of assignments. The JDR priority system was implemented starting in July, Since that time, in Edmonton, there were 84 JDRs scheduled; 63 civil of which 50 were heard, and 21 family, of which 13 were heard. JDR dates in Edmonton generally book up within three weeks. The first week after the dates are available generally is taken in scheduling priority matters. The following Monday other matters start to be scheduled. If counsel is requesting a JDR and seeking priority scheduling, the priority being relied on from NTP (eg. Priority C = family law matter, with child issue involved, whether or not ready for trial) should be indicated in the Subject line. If counsel does not obtain a JDR date, they should put their matter on the wait list since a lot of the matters on that list are booked for JDRs when a scheduled matter is adjourned or settled. When asking that the matter go on the wait list, counsel should provide dates and times when available. JDRs should be meted out quarterly; ie in March you book for September, in September for January. Counsel need a longer lead time for initial months in a new JDR schedule. Plaintiffs in cases that would be very expensive to take to trial should be able to force the other side to a JDR. Perhaps there should be a reverse onus? Nielsen J suggested that counsel can apply for a case conference under the Rules. Rooke ACJ responded that the Court is looking at obtaining scheduling software. In May, the ACJ and coordinators meet to set the judicial schedule for the summer and fall. They meet in October to schedule for the spring. Until that process is completed, they do not know who will be available for JDRs. If counsel is looking for a JDR date, pan earlier for expert. As to forcing the defendant to JDR, counsel might want to address their concern to the ROCC and see if it would consider adding a notice to mediate type of provision like in BC. Counsel can ask for a rule 4.10 case conference. Private mediators also are an option. Alberta Justice is looking at a form of court-annexed mediation, using pro bono lawyers, retired judges or counsel who would work for an honorarium. It is also considering a possible change in the fee so that the $600 filing fee is paid up front on application for a JDR and applied towards the trial if the JDR is not successful. The mandatory ADR rule was suspended as a function of the judicial compliment. Alberta has applied for more judges but the request has been denied. The mandatory ADR rule will likely remain in suspension until the Court has sufficient judicial resources. Graesser J asked members of the Bar how many would book a JDR no matter which judge is assigned. There were very few who said they would. One member of the Bar explained that is due to the potential for

3 3 conflict problems. Nielsen J commented that conflict problems should not arise since two JDR judges are assigned per week. The Drop Dead Rule And Other Rules Of Court Grasser J reminded the Bar that the transition period ends November 1, Any file that has been inactive for the past three years is in trouble. The RoCC has not heard much feedback since the amendment of rule 4.33 to provide for three years rather than two. The change was the result of ACTLA and others asking for a compromise. Do proposed litigation plans stop the clock? What if a response is not received? The clock stops if both sides agree, which in essence is a standstill agreement. Most litigation plans would not contemplate a three year gap. The rule has been extensively rewritten. A reply to a proposed litigation plan is required within two months of a proposal. If the other side is dragging their feet, bring them into chambers. Counsel can use rule 4.10, the civil equivalent of an application for advice and directions. Case management cannot be booked by consent. Counsel has to appear in morning chambers and make the application. Why? Rooke ACJ said that if a judge in morning chambers can deal with a rule 4.10 matter, he or she will. If it is going to take longer than 20 minutes, counsel should ask to book a special chambers date. Slatter JA advised that if counsel wants full case management, they have to obtain the approval of the ACJ. If counsel wants case management lite, go to morning chambers or book a special. Counsel can experience difficulties in trying to get the other side to sign a Form 37 and to agree to timelines. Perhaps pre-trial conferences should be brought back? and Court Staff Rooke ACJ suggested bringing a rule 4.10 motion to obtain deadlines. Nielsen J indicated the CLSC has noted the suggestion that counsel should be able to book a

4 4 one hour case conference by consent. Sharon Hinz noted that when case conferences were introduced, counsel was advised they needed leave of the Court to obtain a Monday date. Sometimes counsel would pre-book with her so that when they made their application, the date and time of the case conference would already be set out in the draft order. In the past year, to help alleviate the assignment load on the duty justices, Rooke ACJ and Browne J have been trying to accommodate letter requests from counsel for case conferences. Question about the meaning and effect of rule 4.33(3), which states that a period of time not exceeding one year between service of a statement of claim on an applicant and service of the applicant s statement of defence must not be considered in computing periods of time under subrule (1). Does the rule just tack on one year to give four years? What was the mischief the subrule was meant to target? Graesser J responded that this subrule allows the claim to be served without requiring a defence for up to a year. The clock starts ticking from the earlier of the filing of a defence to a year after service of the statement of claim. It prevents the plaintiff from never demanding a defence and later claiming time never started running. Slatter JA noted the subrule just means you do not count the time between service of the statement of claim and service of the statement of defence (for up to a year). He referred to it as an adjuster s year. The RoCC was told that if the plaintiff has a statement of claim that is 11.5 months old, it has to be served, but counsel might still be working with adjusters and not want the file to go to defence counsel. They did not want the time to count while the matter is in the hands of the adjusters and before a defence has been served. That will only work for a year. Draft Appeal Rules were circulated for comment by October 15 th. The RoCC hopes to have the Appeal Rules in place asap. The RoCC also requested comments on Schedule C by September 30 th. If counsel see anomalies or something in the Rules that is not working, contact the RoCC or Slatter JA directly. Court File Organization and Material for Morning Chambers Nielsen J commented that the court files can be disorganized and there can be a delay of up to 10 days in stamped documents making their way to the file. This is a resource issue. The CLSC has developed a work plan to investigate this issue. In morning chambers, counsel should not assume the justice has read the file, has the

5 5 file in chambers or, if the file is there, that something recently filed has made its way to the file. The rule of thumb is to provide the justice with a copy of any relevant pleading, affidavit or other filed document. Make the application userfriendly for the judge. Rooke ACJ explained that judges do not read the files in advance of morning chambers because they know so many matters will be adjourned. They do read the material for specials. Peggy Lewis should be provided with an extra copy of any affidavit or brief filed shortly before a special application. Master Smart - Subsequent Comment: For specials before a Master, late filed affidavits or other relevant documents (eg. transcripts) should be sent to the Masters Office. Terry Cranston in the Masters Office should be notified of any adjournment of a special application set for Masters afternoon chambers. Comments from the Court Court Co-ordinator Sharon Hinz asked that when adjourning case management matters, counsel give notice to her so she can alert the judge. The on-line notice is meant for morning chambers, not case management. Counsel can also let the judge know about the adjournment by contacting their assistant. Master Breitkreuz Nielsen J Belzil J Noted there are occasions when a lawyer phones in and adjourns a matter but the party on the other side still appears in chambers. Counsel are reminded that if that party has not been notified of the adjournment, they may be granted costs after both sides have an opportunity to speak to the issue. Brown J raised the issue of duty counsel in civil chambers. The idea has been explored in Calgary by means of a pilot program. Duty counsel there is attending chambers several days a week until Christmas. The number of self-represented litigants appearing in chambers has increased significantly. If the Bar has suggestions re duty counsel in civil chambers, write to him. Many counsel are filing an excessive number of cases for special chambers. The Court does not need multiple trial level decisions applying a Court of Appeal authority. Slatter JA advised that counsel should use neutral citations rather than citing to electronic services such as Quicklaw, Westlaw Canada etc.

6 6 Ouellette J Rooke ACJ Topolniski J Commented that bail often runs past 10:00 am and may be followed by civil forfeiture, ex parte applications and consent orders. Recently, he was not able to get to the actual list until 11:40 am. One member of the Bench said that if bail goes beyond an hour, the justice can adjourn the matter. Another said that since bail deals with liberty of the subject, it is her practice to hear all of the bail matters before proceeding on to other matters. It is a problem with organization within the Court. The Court needs to deal with it. More and more viva voce evidence is being heard in special chambers. Generally, if viva voce evidence must be called, the matter should go to trial. The exception is where there is a discrete credibility issue and it will take no more than one hour. He generally does not agree to a viva voce special even if the parties both consent. There will be a notice to the profession on this topic at the beginning of the new year. The commercial list is for traditional insolvency matters. It may be expanded in future to include other shareholder and partnership matters. If an application has an insolvency overtone/undertow, contact Sharon Hinz and she will contact one of the Commercial Practice Group judges to see if the matter is suitable for the commercial list. Concerns from the Bar Nielsen J Received a letter from a member of the Bar, who said that he had a Minor s Property Act matter requiring Court approval of a proposed settlement. In QB chambers, he was told to go to Master s chambers. There, he was told the Master did not have jurisdiction. The CLSC will look into this. ACTLA member Re recent change in Form 37 it encroaches on litigation privilege and counsel might not have their experts yet. Graesser J suggested they write to the RoCC. The rule is not there because the Bench is nosy. In selecting the judge to hear the matter, the witnesses must be listed to see if there is a conflict disqualifying a particular judge from hearing the matter. Rooke ACJ indicated that if there is a reason why counsel does not want to disclose the name of an expert, bring it to his or the civil trial co-ordinator s

7 7 attention. If counsel thinks the Rules should be changed, write to the RoCC. Slatter JA indicated that the RoCC is researching the issue. Form 37 seems to be wider than the rule. Member of Bar questioning on affidavit of records How much notice must be given for questioning on an affidavit of records? Counsel cannot rely on Part 6 since it requires a filed application. Graesser J suggested using the shorter period provided for in the Rules. Five days for ordinary notice. No reason for any difference. Write to RoCC this may require tweeking the affidavit of records section. When counsel wants to adjourn a matter and goes to the Court website to do so, there is no confirmation provided that the matter was successfully adjourned. Court Co-ordinator Sharon Hinz said she will ask the webmaster to check into this.