Subcommittee on Global Review - Le sous-comité sur l'examen global
"Bucket 1" issues
Covering memorandum and materials rec'd by Justice Hughes from Judge Young of the Federal District Court in Boston. The materials advocate for fewer measures promoting case management and more steps aimed at getting to trial efficiently and quickly.
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Submission from Charles Kent, advocating more case management and mediation in IP matters. (submitted to us through CJ Crampton and Hughes J). Justice Hughes comments that "there is little need for mediation in IP matters except NOC and this group does not want to take on such matters"
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Email from Prof. Ferland, clarifying and adding to comments he made concerning proportionality during our July 22 meeting.
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Draft guidelines drafted by the Aboriginal Bar Liaison Committee -
here and
here (elder testimony and oral history)
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General
memorandum from Justice Karen Sharlow on issues raised by the discussion paper. It is an interesting read, full of good ideas.
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Message from Andrew Baumberg re an important Federal Court initiative:
"At a meeting yesterday of the Federal Court's Executive Committee, which has initiated a strategic review process this year for the Court, there was some discussion of the "access to justice" theme and the increasing cost of litigation for parties. A question was raised concerning the pros / cons of the adversarial model versus the inquisitorial model and whether it might be useful to offer an "opt in" inquisitorial-type process for litigants, to complement the case-management and dispute resolution options currently available in the Rules. It was proposed that the subject be forwarded to the Global Review Sub-Committee for possible consideration along with the related themes it is currently exploring.
"I found a couple articles that provide consideration of the theme, though have not done extensive research. Here are the links (along with PDF attached):
http://www.ccat-ctac.org/downloads/12.Joachim.pdf
http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/AdversarialNonAdversarialDebate.pdf
If the committee thinks this might be of further interest, I could do some additional research or ask a law clerk to do so. An interesting quote, though, from the second article: "one result of listening to and reading about each other's problem was the realization that none of the observers and commentators was satisfied with the system he or she knew best."
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From John Morrissey, May 23:
"This is a note on the US Federal Court practice of appointing 'special masters' to adjudicate aspects of a lawsuit.
"At our meeting on 11 May 2012, Prothonotary Tabib spoke about the burden of lengthy refusals motions in intellectual property (IP) cases. She pointed to cases where six days of discovery might be followed by a five day refusals motion.
"Her point, as I understood it, is that this is an example of 'disproportionality' between (a) the volume of discovery conducted and the (b) use of court resources.
"In partial response, Justice Hughes recalled the US practice whereby the parties retain and pay for a lawyer to referee such disputes. He asked that I look further into what I then called "special magistrates".
"The relevant Rule is US Rule 53. It is available at
http://www.law.cornell.edu/rules/frcp/rule_53
"The Rule operates as described by Justice Hughes.
"There appears to be much literature on Rule 53. For the time being, I will spare you detail because it does not seem necessary in the context of a global review of the rules.
"I do have a few general comments about US Rule 53:
1. If the plenary committee wanted a counterpart Rule for the Federal Court (and I do not suggest that we do - more study is needed), the committee may well have jurisdiction to enact a rule by virtue of sections 2(1), 46(1) and 46(2) of the Federal Courts Act. See the broad definition of 'practice and procedure' in s. 2(1). The expression is repeated in s. 46(1).
When the full committee enacted the 'class proceedings' rules, we often discussed s. 2(1) and its definition of 'practice and procedure' as part of the statutory basis for those Rules
2. US Rule 53, with an appropriate scope of appellate review, offloads the cost of litigation to the parties and away from the court. [See Rule 53(f)(3) and 53(f)(5).] It should free up some prothonotary time.
3 While the master is appointed by court order, the use of a master is in a sense a 'privatization of litigation'. The judicial officer, although court approved, is selected by the parties and has not been vetted by the usual judicial appointment procedure.
4 For anyone of a curious nature, please see
http://www.courtappointedmasters.org/"
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From Prof. Walker, May 16:
Following our sub-committee discussion, I searched at some length for an appellate ruling that reflected concerns over zealous application of the proportionality principle in reigning in the time and expense allocated to individual cases.
I found very little. Almost all the rulings on proportionality related either to the extent of discovery or to the awarding of costs. In virtually every case, the appellate ruling endorsed the ruling below as appropriately cognizant of the importance of proportionality, or it further curtailed discovery or costs for reasons of proportionality.
I was concerned that I might have missed something and I consulted a colleague who tracks the cases on procedure in Ontario. He confirmed this view.
On one further point, in a rather oblique way, the decision of the Court of Appeal in the Combined Air case [DWS: link to it is
here] is an exception to the trend. The Court takes a generous approach to the continuous oral trial for matters that are factually complex. I have written an article about this for the Queen's Law Journal. It is due to be released any time now. I will send you a copy when it has been released.
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From Andrew Baumberg, May 14:
"As the Rules sub-committee meeting was winding down last Friday, I mentioned that the FC aboriginal law liaison committee had extensively discussed the issue re scope of discovery / Rule 222. You asked if I might provide some of the background materials. So, please find below a listing of some relevant documents that are attached / available online."
1.
Memo prepared by law clerk to CJ Lutfy re R222
2. BC Report
www.bcjusticereviewforum.ca/civilrules - see section 3.3 Limiting discovery Recommendation 3.3: Limit available discovery, while requiring early disclosure of key information. See also
enclosed.
3.
DOJ Discussion paper on expert evidence in aboriginal law proceedings - see, in particular, section 4.4.3 Relevance of Expert Evidence
4.
DOJ discussion paper on oral history evidence / disclosure
5. Discussion paper by Prof. Henderson re constitutional issues relating to
treatment of oral history evidence in the Federal Courts
6. "Pre-Trial and Trial Management of Expert Evidence" (
ENG) (
FR) - overview of expert evidence issues initially presented by Peter Hutchins at a Federal Court seminar in 2005 - see on FC web site the public online minutes of the Liaison Committee in 2006, at which Peter presented this paper again - in particular, see section beginning with "Why 5-year trials?" -
http://cas-ncr-nter03.cas-satj.gc.ca/fct-cf/pdf/Aboriginal%20Bar%2021-10-2006%20ENG.pdf
7. The issue re R222 / Peruvian Guano / scope of discovery has been raised in other FC Aboriginal Law Bar Liaison Committee meetings:
- see
here,
here and
here
8. The Federal Court issued Practice Guidelines for aboriginal proceedings in 2009 that included some treatment of discovery - see
http://cas-ncr-nter03.cas-satj.gc.ca/fct-cf/pdf/PracticeGL-Phase1-05-11-09eng.pdf and in particular, page 6 "(d) pre-trial discovery - discovery of documents"
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From Mirielle Tabib, May 14:
Prothonotary Morneau attempted to dispose of a motion to compel answers by reference to Rule 3, without examining the relevance of each question. The Court of Appeal
here reverses him.
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From Rob MacKinnon, May 11:
Coulter Osborne's report (Ontario)
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From Prof. Ferland, May 10:
Principe de Proportionnalité (Québec)
RAPPORT DU COMITÉ DE RÉVISION DE LA PROCÉDURE CIVILE, Une nouvelle culture judiciaire, ministère de la Justice du Québec, Juillet 2001, p. 38
http://www.justice.gouv.qc.ca/special/francais/crpc/nouv-culture/culture.pdf
Rapport d'évaluation de la Loi portant réforme du Code de procédure civile, ministère de la Justice du Québec, avril 2006, pp. 63, 64
Y.-M. MORISSETTE (Juge à la Cour d'appel du Québec et ancien professeur et Doyen à l'Université McGill), "Gestion d'instance, proportionnalité et preuve civile : état provisoire des questions", (2009) 50 Les Cahiers de Droit, 381
www.erudit.org/revue/cd/2009/v50/n2/043973ar.pdf
C. PICHÉ (Professeure à l'Université de Montréal), "La proportionnalité procédurale: une perspective comparative", (2009-2010) 40 R.D.U.S. 551-597
www.usherbrooke.ca/droit/fileadmin/sites/droit/...40/Piche.pdf
Marcotte c. Longueuil (Ville), 2009 CSC 43
Marcotte v. Longueuil (City), 2009 SCC 43
Code de procédure civile (actuel)
Art. 4.2 In any proceeding, the parties must ensure that the proceedings they choose are proportionate, in terms of the costs and time required, to the nature and ultimate purpose of the action or application and to the complexity of the dispute; the same applies to proceedings authorized or ordered by the judge.
Avant-projet de loi instituant le nouveau Code de procédure civile
Art. 18 Parties must adhere to the principle of proportionality and ensure that their actions, their pleadings, including their choice of an oral or a written defence, and the means of proof they use are proportionate, in terms of cost and the time involved, to the nature and complexity of the matter and the purpose of the demand.
Judges, in managing the proceedings they are assigned, must likewise ensure that the measures or acts they order or authorize, whether at the case management, trial or execution stage, are so proportionate, while bearing in mind the efficient processing of the court's caseload and the general interest of justice.
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From David Stratas, May 8:
Memo by Law Clerk, Tim Barrett, concerning Rule 3 and judicial treatments of it. Have Courts used Rule 3 to apply the principle of proportionality to proceedings? Have Courts used it to control abusive or sharp practice?
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