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On the right track

Legal report: Litigation
|Written By Andi Balla
On the right track

When the parties involved in a recent personal injury case in London, Ont., came out of the courthouse with a settlement in their hands, there was a sense of relief for everyone involved mixed with a feeling of appreciation that an intensive pretrial process had shown results. 

It wasn’t an easy case. A commercial trailer had hit a three-year-old boy and there was a demand for compensation for potential brain injuries. The plaintiff wanted the limit, $7 million. The defendant said it did not feel it had to make an offer. From those polarized starting positions, over six months, in four meetings, the opposing counsel, judge, parents, three of Canada’s top brain injury doctors, and adjustors attended the pretrial process for Stefan v. Transport Sales. It was a far cry from the typical one-hour pretrial. The case was, however, settled for a “substantial” but undisclosed amount. “It was a perfect example as to how a judicial involvement can get a case resolved. It got the case settled,” says Mark D. Lerner of Lerners LLP and one of the lawyers involved in the settlement. “Here was a judge who wouldn’t let go, wouldn’t let counsel drift off and forced all of us to come to grips with gut issues of the case. So it was a remarkable and positive use of judicial intervention.”

With 95 per cent of cases not going to trial, pretrials are a vital part of the court process, which if overlooked can hamper the process. However, judges and lawmakers are vying to make the process as efficient as possible for all parties.

Justice John F. McGarry, the judge in Stefan, says he knew he needed to have a roundtable bringing in all of the parties and experts to discuss the brain injury case. McGarry’s process on extensive pretrials involves three meetings. The first serves to set a base on which the judge can resolve the case, which in the case at hand meant bringing in experts. The second meeting is the roundtable. And the third involves mainly monetary issues to get the case resolved. “Having half a dozen pretrials in a day no matter whether they are complex or simple just doesn’t cut it, so that’s why I often have to come back to a second or third session to really get into it,” says McGarry. “I also use caucuses. On big complicated cases, trying to bring everybody at a table usually doesn’t work, so I’m prepared to split the counsel in various rooms.”

McGarry, who has more than two decades of experience in Ontario courts, has been using this system for about a year. He has the support of the senior regional judge and is doing these types of pretrials across the region. However, it is not a common practice. When it comes to caucusing, some judges don’t see it as part of their role, others just don’t have the time to do it, he says.

A strong reliance on getting pretrials done right and pushing for a settlement before the costs and stress of a trial come is not limited to Ontario. Alberta leads the pack in early case resolution, according to Alberta Justice. “Alberta is the only province in Canada which has seen a reduction in lead times in recent years,” says a 2008 report by the ministry, referring to criminal cases. But Alberta’s courts have been working hard on civil case proceedings too in order to improve pretrials by making alternate dispute resolution processes available as early as possible, according to a report by Judge Sandra Hunt McDonald. “All of the initiatives have had varying degrees of success in keeping litigation costs in check,” wrote McDonald.

In the latest move, the Alberta Rules of Court are about to be completely revised. The redraft is currently in the hands of Alberta’s justice minister, who has promised the new rules will be in effect on Nov. 1, 2010. “However, the rules have not been passed, so the exact content of the revised rules is not yet clear,” says Barbara Billingsley, an associate professor at the University of Alberta Faculty of Law.

Ontario has recently approved changes to Rule 50 of its Rules of Civil Procedure  to facilitate resolution of cases with efficient pretrials. It aims “to provide an opportunity for any or all of the issues in a proceeding to be settled without a hearing and, with respect to any issues that are not settled, to obtain from the court orders or directions to assist in the just, most expeditious, and least expensive disposition of the proceeding, including orders or directions to ensure that any hearing proceeds in an orderly and efficient manner.”

The rule also means pretrial judges can require the parties be in attendance and file certain materials. It also asks judges to file a pretrial conference report that outlines the evaluation of the case as of the pretrial. At the end of the day, according to McGarry, the purpose of Rule 50 is to have all parties present, including the clients, so the cases can be settled. “It encompasses a lot of what I’ve already been doing, so I’m glad to see it,” he says.

His advice to the lawyers in these pretrials is: “Come with full knowledge of the case and be prepared to settle. The biggest problem with lawyers in pretrials is that they arrive without having had a real assessment of the trial, nor do they have any instruction [from the client] as to what level they are prepared to settle at.”

And it is the lawyers who play the key role in pretrials, according to one of Canada’s foremost judicial mediators. “While judges certainly play a role in the pretrial and generally receive the credit for settling cases at the pretrial conferences, it is the lawyers who ultimately get the job done,” says Ontario Superior Court Justice Robert Beaudoin, who wrote a paper on the subject of effective pretrial briefs. 


He advises lawyers to have well-prepared pretrial briefs. “You want the pretrial judge to provide their analysis and opinion,” he wrote, adding lawyers should not leave it up to the judge to put the pieces together but help him or her through organizing the brief properly. Beaudoin adds pretrial conferences are a necessary part of dispute resolution because the system simply would not be able to handle the load if all cases went to trial. 


At the end of the day, says McGarry, successful pretrials show how effective the judiciary can be in solving disputes. “For a long time, mediation was considered where you had to go, and things got resolved. Now, I find that people get back and say that mediation just didn’t work, it was a waste of money. So I think it is up to judiciary to fill that gap, and to work harder to try to get these matters resolved.”

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