Litigating Claims: Mediation, Part 1: Time Trials

In the area of civil justice in Ontario, we currently face serious challenges that constitute a barrier to accessing what many consider our most reliable form of dispute resolution. This problem is most significant in the City of Toronto, where almost all of the major lawsuits are issued and litigated.

The problem really concerns those cases that are defined as long trials. In Toronto, a long trial is one in which counsel estimates the trial time will be more than 10 days. In these uniquely-designated cases, after pleadings have been exchanged and the production and discovery aspects of the lawsuit have been completed, counsel then set the matter down for trial. Normally it takes from one year to two years to reach this stage of the litigation process. Currently in Toronto, once the action is set down for trial, there is a 32-month wait to have access to a judge and a courtroom. This means the overall length of time to bring a lawsuit to its conclusion from the time the claim is launched is from three to five years. Whether it affects a citizen who is involved in one lawsuit over a lifetime, or a corporation or business that uses the courts regularly, this time lag is simply not acceptable.

Were it not for alternative dispute resolution – primarily in the form of mediation and some arbitration – the time lag would be much greater.

Not every lawsuit can be the subject of a mediation or arbitration. Certain cases demand the “imprimatur” of a Superior Court Judge. Certain public disputes such as the Air Canada re-financing, the Stelco bankruptcy and some important class actions, cannot be settled behind boardroom doors; otherwise, the public would have no confidence in their ultimate resolution. These kinds of cases, together with those that alter our jurisprudence, must be dealt with in the light of both civil justice and public scrutiny. Otherwise, society would have no confidence in the outcome.

PERSONAL INJURY CASES

It is important for the reader to appreciate that on the long trial list in Toronto, 60% of the cases are personal injury motor vehicle cases. This is so because of the manner in which these types of cases are litigated today. There are numerous witnesses in these cases. Many of the witnesses are experts: they consist of medical doctors, economists, accountants, vocational experts, investment counselors, and quasi-medical experts from professions that project the long-term cost of caring for disabled individuals.

In the beginning of the 1990s, the number of lawsuits initiated in the City of Toronto began to increase exponentially. By 1997, there were approximately 3,200 personal injury motor vehicle cases launched in the City of Toronto. By 2005, this number had increased to approximately 4,600. In 1997, 725 personal injury motor vehicle cases were added to the long trial list; that number increased to 1,100 in 1999. During this two-year period, the mandatory mediation pilot project was launched.

At this point, it was obvious the litigation bar in Ontario, particularly the personal injury bar, had bought into the concept of alternative dispute resolution – especially mediation. The pilot project on mandatory mediation was instrumental in settling 40% of all of the lawsuits that were initiated; the number of cases added to the long trial list began to diminish to the point where the number added in 2004 was about 300.

Statistics demonstrated that mandatory mediation settled 40% of the cases while private mediation settled 90%. That led the regional senior justice for the Toronto region, Ontario Superior Court Justice Warren Winkler, to issue a practice direction changing the timing of mandatory mediation so that while mediation is still mandatory in Toronto, counsel have complete flexibility in choosing the time of the mediation. It is hoped this will further reduce the number of cases being added to the long trial list. It is to soon to determine whether or not this result will occur as currently, the practice direction is just completing its first full year of operation.

The scenario that has just been described poses the obvious question: why do we distinguish between short and long trials? The answer is, of course, because that is how we allocate judicial resources. Simply put, if we had more judges and more court rooms, we would not have a problem. The reality is, unfortunately, that neither level of government has any room in their budget for civil justice. We are left, therefore, with the need to come up with some creative solutions.

LIMITING WITNESSES

Although s.12 of The Ontario Evidence Act states that any one litigant is entitled to call only three expert witnesses, unless they obtain leave of the trial judge, historically this leave has been readily given. That may change. Certainly the defence bar has expressed a willingness to live by this rule. The enforcement of the rule puts a trial judge in a delicate position: the plaintiff is entitled to present his case in the best possible light; certainly, there are cases in which it is obvious that more than three experts are necessary. If reports are filed, as opposed to calling live witnesses, a judge must exercise careful scrutiny to protect the rights of cross-examination. These problems are not insurmountable.

MED-ARB

There has also been discussion of using ADR concepts such as mediation and/or arbitration – or a combination of both procedures, called med-arb – to achieve a uniform medical theory upon which the lawsuit can then proceed to trial.

Motor vehicle personal injury cases are further complicated in today’s environment by the presence of accident benefits and the inter-relationship between accident benefits and tort. A suggestion has been made and discussed with the personal injury bar that accident benefits issues should be the subject of a med-arb, prior to trial, so that the tort action is the only thing decided by the trial judge. The plaintiff bar, however, sees the interaction between tort and accident benefits as significant leverage: it does not want to give that up because it significantly affects the plaintiff bar’s ability to negotiate settlement. The pressure on a defendant who faces a “Cox and Carter award” is significant. [Cox v. Carter established that the plaintiff should hold future collateral benefits in trust for the defendants in proportion to the damages paid by them.]

On the other hand, the defence bar, even though they know their clients want to use med-arb, have concerns about the process, particularly when it is not subject to any form of appeal.

TIMED TRIALS

Another cogent suggestion is to have time-limited trials. As the case proceeds through case management and eventually gets to a pre-trial conference, the pre-trial judge will spend significant amounts of time with counsel estimating the length of trial and agreeing to a trial timetable that will be enforced by the trial judge. This practice is followed in some US jurisdictions and seems to work very well there. We may have to “import” some type of time limits on the conduct of various phases of the trial, particularly with regard to expert witnesses.

SEPARATE FORUMS

Another concept under consideration is one that parcels out various aspects of the dispute to separate forums. For instance, trying liability separately from damages, or trying liability first in a multi-party case in which there are many defendants and significant damages. When that happens – when the liability is sorted out the paying defendants are identified – at that point the damage issues become easier to resolve.

In some situations, defendants take a strong stance on liability, asserting that they are innocent; those cases are difficult to resolve at mediation. These kinds of disputes can be handled by using private arbitrators or conducting a trial in stages with a judge.

It is obvious from these comments that in the next few months the personal injury litigation bar has much to do. Up to this point in time, however, we cannot overlook the contribution ADR has made to civil justice. Every day in Ontario there are hundreds of mediations taking place. There are probably more mediations taking place every day than there are civil trials. Mediation has become the accepted forum of choice for those involved in resolving personal injury disputes. Had it not been for the use of private mediation, the problems facing civil justice in Ontario would be insurmountable. The personal injury bar can feel confident going forward that, by building on past ADR successes, the problems threatening access to our courtrooms can be solved by simply building on the creative solutions we have already developed.