Transcript Effective Case Management in the Federal Court

EFFECTIVE
CASE MANAGEMENT
IN THE FEDERAL COURT
Prothonotary Kevin R. Aalto
August 16, 2014 - St. John's, NL
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Overview
 Introduction to the Federal Court
 Case Management (CM)
 The Five Fundamentals of CM
1.
Federal Courts Rules, Part 9
2.
Prothonotaries
3.
Flexibility
4.
Accessibility
5.
Accountability
 Appellate Review in Case Management
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Introduction to the Federal Court
 National Court
 Statutory Court – Federal Courts Act plus approx. 100
other federal statutes
 no inherent general jurisdiction
 regular sittings across the country
 Federal matters
 32 Judges; 6 Supernumerary Judges; and
6 Prothonotaries
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 Main Areas of Jurisdiction
 Immigration
 Intellectual Property including proceedings under
the Patented Medicines (Notice of Compliance)
Regulations
 Aboriginal claims
 Admiralty
 Judicial Reviews of federal boards, commissions or
other tribunals
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 National security issues
 designated proceedings - security certificates
 warrant requests
 public disclosure of evidence (s. 38 of the Evidence
Act)
 Some statistics
 38,441 proceedings instituted 2012-13
 23,387 judgments, orders and directions in 2012-13
 Over 1,200 cases actively case managed
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What is Case Management?
 Case management, or specially managed
proceedings, is the coordination of Court
processes and resources intended to move
cases in a timely manner from commencement
to disposition, regardless of the type of
disposition. It involves active supervision by a
Case Management Judge of the progress of
cases and introduces new supervisory
activities such as status reviews, dispute
resolution services, and trial management
conferences
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 Labour intensive – 70 - 80% of CMJ’s time
 Resource intensive - need experienced Case
Management Officers
 Art not a science
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Objectives of Case Management
 To reduce unnecessary costs and delay
 To facilitate early and fair settlements
 To bring cases promptly to a just result
 To allow sufficient time for the conduct of the
proceeding
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Case Managed Cases
 All Applications under the Patented Medicines
(Notice of Compliance) Regulations
 Complex actions
 Cases where nothing has happened (status
reviews)
 All Class proceedings
 Over 1200 proceedings are case managed
by Prothonotaries appointed as Case
Management Judges
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The Five Fundamentals
of Case Management
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1.
Federal Courts Rules - Part 9
“Case Management and
Dispute Resolution Services”
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Case Management Rules
 Rule 3 – General Principle of the
Federal Courts Rules:
 Interpret and apply the rules:
• in every proceeding
• just
• most expeditious
• least expensive
• determination on its merits
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Case Management Rules
 Rule 383 – Appointment of Case Management
Judge (“CMJ”)
 Rule 385 – Powers of a CMJ
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How does a case become
Specially Managed?
 Status Reviews
 Rule 380(1) – Actions
• 180 days from date of issuance and no defence filed/
no default judgment
• Notice of Status Review
• 360 days no requisition for Pre Trial Conference –
automatically into CM
 Rule 380(2) Applications
• 180 days from date of issuance no requisition for a
hearing
• Notice of Status Review
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How does a case become
Specially Managed?
 Result of Status Review
 Proceeding dismissed or –
 Order proceeding be specially managed and issue an
order under Rule 385
 Request of parties
 Streamlining Complex Litigation – May 1, 2009
(Notice to the Profession)
 Request may be by letter – motion not necessarily
required
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How does a case become
Specially Managed?
 By Order of the Court
 Court may at any time order CM (Rule 384) or on
Court’s motion – Rule 47
 All PM(NOC) Proceedings
 Practice Direction – December 7, 2007
 Class Proceedings
 Rule 384.1
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Powers of a
Case Management Judge
 Rule 385
 CMJ deals with all matters prior to trial or hearing
 Give directions to satisfy Rule 3
 Fix timelines notwithstanding any other rule
 Fix and conduct Dispute Resolution Conferences
 Hear and determine all motions prior to assignment of
hearing date
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Tools of Case Management
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Governed by Rule 385
Case conferences
Motions
Orders and Directions
Trial management conferences
Dispute Resolution Services
Mediation
Fixed trial dates
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2 - Prothonotaries
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 Judicial officers with full judicial independence

6 regionalized Prothonotaries (Associate Judges)

2 in Ottawa; 2 in Toronto; 1 in Vancouver; 1 in Montreal
 Jurisdiction – Rule 50:

interlocutory proceedings

case management

mediations

simplified trials - currently $50K

have final jurisdiction on motions to strike any type of
proceeding in any amount

appointed by the Chief Justice as Case Management
Judges
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3 - Flexibility
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 Proportionality principle
 Not a “one-size fits all” or cookie cutter
approach
 Make the Rules fit the case not the case fit the
Rules
 Active v. Passive: CM is not babysitting – interfere
in the case only as needed or necessary
 No motions without first holding a case conference
 Cajole factor
 A CMJ needs “patience, flexibility, firmness,
ingenuity, and an overall sense of fairness to all
parties”
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4 - Accessibility
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 Case conferences – at any time – any place
– usually by telephone
 Get involved early in the complex cases
 Give directions for conduct of cases
 Review status and timetable of litigation
 Discuss and manage and often settle issues on the
spot - i.e. production issues/confidentiality/refusals on
examinations/expert reports/hearing dates
 Have positions set out in correspondence
 Get a sense of whether and when settlement should be
explored – mediation?
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5 - Accountability
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 Make them give dates for scheduling of steps
 How much time do you reasonably need to complete the next step?
 Scheduling orders
 Have one party keep minutes and alternate
between parties (we now use DARS for many
hearings)
 Have an agenda in advance –with positions of
parties on the issues to be addressed
 Provide Court with updates of progress
 Determine when hearings judge might get involved
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Appellate Review
in Case Management
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 Sawridge Band v. HMQ, 2006 FCA 228
per Evans J.A.:
[21] First, this Court is very reluctant to interfere with decisions
made by a judge in the course of managing a matter prior to trial,
particularly one as complex, lengthy and difficult as this one. As a
result of living with the matter over time, the case management
judge will have acquired an overall understanding of it which an
appellate court, on the basis of hearing an appeal on a particular
issue, cannot possibly match in either depth or breadth.
[22] When performing essentially case management functions
judges are appropriately given "elbow room" by appellate courts, so
that they can get on with what is often a difficult job, calling for a mix
of patience, flexibility, firmness, ingenuity, and an overall sense
of fairness to all parties. [emphasis added]
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 See also j2Global Communications Inc.
v. Protus IP Solutions Inc., 2009 FCA 41,
again per Evans, J.A.:

It has often been said in this Court that, because of
their intimate knowledge of the litigation and its
dynamics, prothonotaries and trial judges are to be
afforded ample scope in the exercise of their
discretion when managing cases . . . Since this Court
is far removed from the fray, it should only intervene
in order to prevent undoubted injustices and to correct
clear material errors. None have been demonstrated
here.
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Questions???
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