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of the Supreme Court, 1986 (Amendment)
Under the authority of section 55 of the Judicature Act, the Rules Committee of the Trial Division makes the following rule.
Barry R. Sparkes, Q.C.
1. Rule 18A Added
1. The Rules of the Supreme Court, 1986 are amended by adding immediately after Rule 18 the following:
18A.01. The purpose of this Rule is to provide for selected proceedings a level of management and direction with respect to pre-trial procedures and preparation for trial that is more organized, coordinated and focused than what would be normally applicable to cases proceeding through the system from pleading to trial, with a view to
(a) ensuring that maximum benefit is gained from each trial day;
(b) making more efficient use of Court resources;
(c) ensuring adequate and accurate amounts of time are reserved for trial; and
(d) providing for the public interest in access to justice in a timely and cost effective manner.
18A.02. (1) In this Rule
(a) "case management hearing" means a hearing upon application, or a hearing by way of reference by a judge out of a case management meeting, relating to proceedings subject to a case management order;
(b) "case management meeting" means an informal meeting between a judge, designated as a case management judge under this Rule, and parties or their counsel in one or more proceedings subject to a case management order to discuss and to potentially resolve issues related to the management of those proceedings with a view to achieving the purposes listed in rule 18A.01;
(c) "case management order" means an order for the management, supervision and direction of matters relating to preparation for trial and pre-trial applications made pursuant to rule 18A.03;
(d) "complex trial" includes
(i) trial of a claim under the Mechanics' Lien Act where either a defence has been filed or, even if a defence has not been filed, more than one claim for lien has been filed in the mechanics lien register of the Registry of Deeds and the claims remain undischarged as of the date of commencement of a proceeding to enforce one of them,
(ii) trial of a claim involving a contested adverse claim under the Quieting of Titles Act,
(iii) trial of any claim where in the opinion of a judge the number of exhibits requires pre-trial organization and management,
(iv) trial of any claim that is likely to involve evidence from more than six expert witnesses,
(v) trial of any claim involving two or more unrelated causes of action or three or more unrelated plaintiffs or defendants,
(vi) trial of a proceeding in respect of which an order has been, or is likely to be, made under rule 18(1), and
(vii) trial of a proceeding which is, or is likely, to be tried before a civil jury; and
(e) "lengthy trial" means a trial that is likely to take more than 20 trial days to complete.
(2) This Rule does not apply to
(a) a family law proceeding to which Rule 56A, 56B or 56C applies;
(b) a class proceeding to which Rule 7A applies; or
(c) any other proceeding which has been exempted by order.
Case Management Order
18A.03. (1) At any time following the close of pleadings, any party may apply for a case management order on the grounds that
(a) the proceeding will involve a complex trial or a lengthy trial; or
(b) the preparation for trial or pre-trial applications in the proceeding would otherwise benefit from management, supervision and direction by a single judge.
(2) An application pursuant to rule 18A.03(1) may be made
(a) to the court, by way of an interlocutory application (inter partes);
(b) informally to the Chief Justice, or a judge designated by the Chief Justice, where all parties consent; or
(c) to a judge conducting a pre-trial conference pursuant to Rule 39, who may make such an order where all parties consent, or, where they do not consent, may move the matter into applications court where it may be dealt with on application.
(3) A judge may on that judge=s own motion after hearing from the parties, by way of an order incidental to the matter being dealt with, make a case management order on the grounds mentioned in rule 18A.03(1).
(4) In considering whether to make a case management order
(a) the judge shall make such an order where in that judge's opinion the circumstances fall within the definition of a complex trial or a lengthy trial, unless upon consideration of all relevant factors it would not be in the best interests of the administration of the proceeding as a whole to make such an order; and
(b) the judge shall not make such an order where in that judge's opinion the circumstances do not fall within the definition of a complex trial or a lengthy trial, unless upon consideration of all relevant factors it would nevertheless be in the best interests of the proceeding as a whole to make such an order.
(5) In considering whether to make a case management order, the judge shall take account of the following factors:
(a) the estimated length of the trial;
(b) the complexity of the trial;
(c) the number of parties;
(d) the number and nature of issues and their interrelation;
(e) the degree to which there may be common issues of law or fact or common or interrelated claims to relief, where more than one proceeding exists;
(f) the estimated number of pre-trial applications that are likely to be made;
(g) the degree to which proposed pre-trial applications may be interrelated;
(h) the degree of difference of opinion among counsel as to the pre-trial management of the proceeding and the approach to preparation for trial; and
(i) any other circumstance peculiar to the specific proceeding that may affect the management, supervision and direction of the proceeding.
(6) More than one proceeding may be made subject to a single case management order either at the time of the original order or by way of addition at a subsequent time.
(7) Where it is proposed that more than one proceeding be made subject to a single case management order, all parties in all existing affected proceedings shall be given notice of the proposal and an opportunity to be heard.
(8) A case management order may include prospective proceedings not yet commenced where the subject-matter of those proceedings may be interrelated with, or raise substantially the same issues as, or may be procedurally interconnected with, existing proceedings that are, or are to be made, subject to the order.
(9) Where a prospective proceeding is included in a case management order, any party to such a proceeding, once it is commenced, may apply to the case management judge for reconsideration of the decision to include it within the order.
(10) A case management order may be amended, modified or rescinded from time to time as the circumstances require.
Case Management Judge
18A.04. (1) Where a judge determines that one or more proceedings are appropriate for case management, the judge shall
(a) declare that the proceeding or proceedings in question shall, until further order, be conducted in accordance with this Rule;
(b) where the order includes a prospective proceeding not yet commenced, define the circumstances relating to parties, subject-matter, issues and procedure which will identify all prospective proceedings that will become subject to the order;
(c) designate a judge, and an alternate, to act as the case management judge with respect to the proceeding or proceedings; and
(d) make any other consequential order that the judge deems appropriate to facilitate the case management process.
(2) Except in special circumstances, the designation of a case management judge and an alternate pursuant to rule 18A.04(1)(c) shall be made in rotation from a roster of judges maintained for the purpose by the Chief Justice.
(3) Once a case management order is made, the Registrar shall cause it to be brought to the attention of the designated case management judge and the alternate.
(4) The Registrar shall cause all subsequent applications and other steps taken in the proceeding to be brought to the attention of the case management judge.
(5) An alternate case management judge shall only perform the role of case management judge when the case management judge is unavailable within a reasonable time to deal with the matter, or the parties otherwise consent.
Form and Contents of Case Management Order and Subsequent Pleadings
18A.05. (1) In addition to the requirements of rule 49.01, an order embodying a case management order shall, below the title of proceeding, be headed "CASE MANAGEMENT ORDER".
(2) All subsequent pleadings in a proceeding in respect of which a case management order has been made shall include the words immediately below the title of proceeding "A CASE-MANAGED PROCEEDING BEFORE JUSTICE __________" followed by the name of the case management judge assigned to that proceeding.
Case Management Meetings
18A.06. (1) Upon being notified of appointment, the case management judge shall convene a case management meeting with all counsel to discuss then or at a later case management meeting
(a) the nature of the proceedings;
(b) the type and timing of pre-trial procedures and applications that may be necessary before the case is ready for trial;
(c) the development of a case management plan, including milestones;
(d) the procedures to be followed for further case management meetings; and
(e) any of the matters listed in rule 18A.06(3).
(2) The case management judge may at the request of a party or on that judge=s own motion at a convenient time on notice to all parties convene and hold case management meetings where in the opinion of the judge they will assist in the conduct of the proceedings.
(3) At a case management meeting, the judge and the parties may discuss any or all of the following matters:
(a) the nature and extent of the pre-trial procedures that may be required to advance the proceedings;
(b) the timing and methodology associated with the making of any application;
(c) the dispensing with procedural steps associated with any application;
(d) the possibility of resolving procedural steps by agreement;
(e) the appropriateness of restructuring any or all of the proceedings for trial;
(f) the setting or re-adjustment of timetables for steps to be taken in the proceedings;
(g) the determination of readiness for trial of some or all of the proceedings, if more than one;
(h) such other matters as would be discussed and dealt with at a pre-trial conference pursuant to rule 39.02(5);
(i) the appropriateness of holding a settlement conference or mediation session;
(j) the manner of conduct of the trial;
(k) the preparation and filing of a certificate of readiness when the matter is ready for trial; and
(l) any other matters pertinent to or affecting the proper conduct of the proceeding.
(4) Where technical arrangements can be appropriately made, and unless the case management judge otherwise orders, counsel or a party may participate in a case management meeting by audio conference or video conference pursuant to Rule 47A.
(5) Counsel attending at or participating in a case management meeting shall have authority to deal with the matters raised and shall be fully acquainted with the facts and legal issues.
(6) The case management judge may incorporate a decision made by consent during a case management meeting in an order, or in the event of disagreement of the parties on a particular matter, adjourn the matter into chambers or Court for full argument and decision.
(7) Where a case management order has been made and the parties have filed a certificate of readiness, a pre-trial conference need not be held pursuant to Rule 39 as a condition of the matter being placed on a trial list.
Case Management Hearings
18A.07. (1) Where a case management judge has been assigned in accordance with this Rule, all subsequent applications shall, unless otherwise ordered or all parties otherwise request, be made to that judge and the party filing an application shall endorse on the application the name of the case management judge.
(2) The Registrar shall bring to the attention of the case management judge an application submitted for filing in accordance with rule 18A.07(1), obtain an appropriate date from that judge for the hearing of that application and notify the parties of that date.
(3) The materials filed on an application shall be accompanied by a separate copy of all materials marked "Case Management Judge's Copy", for use by the case management judge and that copy shall be delivered to the judge at least five days before the date set for the hearing of the application.
(4) Where a matter is adjourned into chambers or Court for full argument and decision pursuant to rule 18A.06(3), the matter shall be treated as an application pursuant to rule 18A.07(1) and the judge shall give such directions as may be appropriate with respect to documentation to be filed in support of or opposition to the application.
(5) On separate application, or incidental to another application, the case management judge may give such directions as could be made on an application under rules 38.01(1)(d), (e) and (f).
Multiple Proceedings Subject to One Case Management Order
18A.08. (1) Where more than one proceeding has been made subject to a single case management order pursuant to rule 18A.03(6), the Registrar
(a) shall maintain a list, called the Master Proceedings List, consisting of the title of proceedings, file numbers and counsel, of all proceedings subject to the case management order; and
(b) may, and if ordered in the case management order or otherwise, shall, cause a Master File to be opened and numbered with a generically descriptive title of proceeding, and any subsequent filing therein shall be deemed to be a filing in the original file of each separate proceeding.
(2) All subsequent pre-trial proceedings affecting more than one proceeding, and all orders and directions arising therefrom, shall use the title of proceeding of the Master File, if any, and shall have endorsed thereon, immediately below the title of proceeding
(a) the words "Before Justice ________________, Case Management Judge"; and
(b) a statement that the application, order or direction, as the case may be, applies either to
(i) all of the proceedings listed in the Master Proceedings List, or
(ii) all of the proceedings in the Master Proceedings List except those proceedings as are identified by reference to their original file numbers, or
(iii) such of those proceedings as may be identified by reference to their original file numbers; and
(c) in default of compliance with this rule, all orders and directions respecting pre-trial proceedings and case management decisions shall apply to all of the proceedings on the Master Proceedings List unless otherwise ordered.
(3) Any party may apply at any time to remove a proceeding from the Master Proceedings List and, if that order is granted, that proceeding thenceforth shall proceed as if it is not subject to the case management order, and the Master Proceedings List shall be amended accordingly.
(4) Notwithstanding rules 18A.08(1) and (2), where a party to a proceeding is required to file documents, such as a list of documents pursuant to Rule 32, or pleadings such as an amended statement of claim or defence pursuant to Rule 15, which relate to a particular proceeding only, the document or pleading shall continue to use the original title of proceeding and file number for that proceeding and shall be filed in the original file pertaining to that proceeding.
(5) Any party to a proceeding on the Master Proceedings List or any party to a proceeding (herein referred to as the "Non-Case Managed Proceeding") not presently on the Master Proceedings List may apply, on notice to all existing parties and to all parties to the Non-Case Managed Proceeding, for an order subjecting the Non-Case Managed Proceeding to the case management order and, if such an order is granted, the Non-Case Managed Proceeding shall henceforth be subject to the case management order and be added to the Master Proceedings List.
18A.09. (1) The case management judge and, where the alternate case management judge has been actively involved in the matter, the alternate case management judge, shall not sit on the trial of any proceeding that has been subject to the case management order.
(2) The case management judge and the alternate case management judge shall not disclose to the trial judge or to any other judge the positions taken or the admissions or concessions, if any, made during case management meetings.
(3) Where counsel or a party
(a) fails to comply with the spirit of this Rule;
(b) obstructs the case management process; or
(c) fails to attend and participate in a case management meeting in an authorized and prepared manner,
the case management judge may, where the failure is not a failure of all counsel or unrepresented parties involved, make any order as to costs that is deemed just.
2. This rule shall come into force on
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